Please read the following terms carefully. These Terms of Use form a legally binding agreement between you as an HYPERCEPT™ User (defined below) and Astellas Pharma US, Inc. (“Astellas,” “we,” “us,” or “our”). These Terms of Use, together with all amendments, addenda, and licenses, constitute the entire agreement between you and us for your access to and use of HYPERCEPT™, superseding any prior or contemporaneous agreements or understandings. By accessing or using any portion of HYPERCEPT™, you signify that you have read these Terms of Use and that you understand and agree to be bound by them.

If you have not read the Terms of Use, do not understand or agree to be bound by them, or are not able to consent to be bound by the Terms of Use, you are prohibited from using HYPERCEPT™.

1. Overview & Purpose of HYPERCEPT™

   Welcome to HYPERCEPT™, offered by Astellas Pharma US, Inc. HYPERCEPT™ offers US-licensed optometrists and ophthalmologists the ability to access educational resources related to geographic atrophy and link to third-party artificial intelligence analytical tools.

   HYPERCEPT™ IS NOT A DIAGNOSTIC TOOL AND IS NOT INTENDED FOR DIAGNOSIS OR TREATMENT OF ANY DISEASE OR MEDICAL CONDITION. HYPERCEPT™ DOES NOT REPLACE A HEALTH CARE PROVIDER’S JUDGMENT, AND CONTENT PROVIDED ON HYPERCEPT™ DOES NOT CONSTITUTE MEDICAL ADVICE OR THE PRACTICE OF MEDICINE. HYPERCEPT™ IS ONLY INTENDED FOR USE IN THE UNITED STATES.

   SECTIONS 12 AND 13 OF THESE TERMS OF USE CONTAIN VARIOUS LIMITATIONS AND EXCLUSIONS OF LIABILITY THAT MAY ARISE OUT OF OR RELATE TO THESE TERMS OF USE OR THE USE OF HYPERCEPT™AND SECTIONS 17 AND 18 CONTAIN AN ARBITRATION CLAUSE AND CLASS ACTION WAIVERS, AS WELL AS OTHER IMPORTANT TERMS RELATING TO DISPUTES BETWEEN US.

2. Definitions

   The term “HYPERCEPT™ User” refers to you as an HYPERCEPT™ user.

3. Scope of Terms of Use

   We offer HYPERCEPT™ for your personal use.  By accessing or using HYPERCEPT™ in any way, you are entering into an agreement with us to be bound by the then-current version of these Terms of Use. You are also bound by all applicable laws. You agree that we have the right to revise the Terms of Use at any time. You will have the opportunity to terminate your use of HYPERCEPT™ at the time we give you notice of the revision.

4. Representations and Warranties

   As an HYPERCEPT™ User, you acknowledge, represent, and warrant that:

   1. You are acting on behalf of yourself personally and that you understand that your use of HYPERCEPT™ is solely for your educational use. HYPERCEPT™ does not diagnose or treat any disease or medical condition and does not provide medical advice;
   2. You understand that the content provided by HYPERCEPT™ does not constitute medical advice or the practice of medicine, does not diagnose, and is not intended to diagnose or treat any disease or medical condition. HYPERCEPT™ does not replace a health care provider’s judgment.
5. License Grant

   Subject to these Terms of Use, we grant you a limited, non-transferable, non-assignable, non-sublicensable, non-exclusive, personal, and revocable license to access and use HYPERCEPT™ as and in the manner described in these Terms of Use. No license is granted to any third party, and you have no right to make available to anyone access to HYPERCEPT™. You have no right or license to use HYPERCEPT™ for the benefit of another.

6. Ownership of Data and Use Restrictions
   1. You agree that Astellas and/or its partners, suppliers or licensors own all rights, title and interest in HYPERCEPT™ and the “HYPERCEPT™” trademarks and service marks, including all related intellectual property rights. You shall not remove, alter or obscure any patent, copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying HYPERCEPT™. You may not publish, distribute, extract, re-use, or reproduce any part of HYPERCEPT™ in any material form (including photocopying or storing any portion of it in any medium by electronic means) other than in accordance with the limited use license set out in these Terms of Use, or as permitted by law. Except as expressly provided in these Terms of Use, we grant no license or rights (by implication, estoppel, or otherwise) to HYPERCEPT™ or any of our intellectual property rights. All other rights are expressly reserved by Astellas and/or its partners, suppliers or licensors, as applicable. Notwithstanding anything herein to the contrary, all rights in and to HYPERCEPT™ are licensed and not sold or transferred.
   2. You consent to the use of, and hereby grant Astellas and its partners, suppliers, and licensors a worldwide, exclusive, royalty-free, fully-paid up, sublicensable (through multiple tiers), freely transferable, irrevocable, perpetual license to use, the data you make available to or that is otherwise accessible through HYPERCEPT™, including your Personal Information as detailed in the Astellas Privacy Policy, to administer HYPERCEPT™, to create de-identified, aggregated, and/or derivatives of such Personal Information, and for all other legally permissible purposes. You represent that you own and/or have sufficient rights and consents to grant Astellas and its partners, suppliers, and licensors the foregoing consent and license.
   3. All right, title and ownership of de-identified data and other technical, non-personal data that is derived from data you make available to or that is otherwise accessible through HYPERCEPT™ is and shall remain solely and exclusively vested in Astellas, including all proprietary rights relating thereto; to the extent you have or obtain any right, title or interest in such data, you hereby assign all such worldwide right, title and interest to Astellas.
   4. Except as expressly permitted in these Terms of Use, you may not modify or copy in any way any content you obtain from HYPERCEPT™; distribute or transmit such content to any third party for commercial purposes; frame, scrape, or otherwise display any of the content of HYPERCEPT™ on your own or any other tool; use such content in any way that is competitive with us or our partners, suppliers or licensors; mass distribute such content through electronic or other means; or make any unauthorized use of such content. Such modification, distribution, transmission, display, or use shall constitute a material breach of these Terms of Use and infringe our copyrights, patents, trademarks, trade secrets, or other intellectual property and other proprietary rights owned by or licensed to us. You may not decompile, reverse engineer, or reverse assemble any portion of HYPERCEPT™ or the underlying software. If you download or print any content of HYPERCEPT™, you agree to maintain any and all patent, copyright, trademark notices, and other notices or statements of proprietary rights appearing on such content and not to remove, obliterate, or cancel from view any such notices or statements. We have no right or authority to authorize you to access, use, download, print, copy, modify, display, distribute, or transmit any third-party content that you may access from HYPERCEPT™.
   5. You have no right or license to use HYPERCEPT™ for the benefit of another in an external service bureau or time-sharing arrangement or otherwise with a user not licensed by us. Under limited circumstances, HYPERCEPT™ may permit you to create and upload text, information, images, and content. You represent and warrant that you have the legal right to upload such text, information, and content and that none of such text, information, images, or content violates the copyright, patent, trademark, trade secret, and/or other intellectual property or other right of any other party or is prohibited by applicable law. Astellas and its partners reserve the right to remove any text, information, images, or content uploaded by you that Astellas or its partners determine infringes on any third party’s copyrights, trademarks, trade secrets, or other intellectual property or other rights, or that Astellas or its partners and suppliers otherwise determine is inappropriate.
   6. In connection with your access to and use of HYPERCEPT™, you may not access or use any password-protected, secure, or non-public areas, except as specifically authorized in writing by us; impersonate or misrepresent your affiliation with any person or entity; use any automated means to access or use HYPERCEPT™, including scripts, bots, scrapers, data miners, or similar software; attempt to or actually disrupt, impair, interfere with, alter, or modify HYPERCEPT™, or any information, data, or materials posted or displayed by us or our partners; access data on the HYPERCEPT™ that may not be intended for you; or attempt to probe, scan, or test the vulnerability of the HYPERCEPT™ or breach any implemented security or authentication measures, regardless of your motives or intent.
7. Links and Marketing

   Any links to other websites or Internet locations from HYPERCEPT™ are provided for your convenience only. We do not endorse, sponsor, or approve any of the content of any websites or locations to which HYPERCEPT™ links. We have no control over any of the websites or other internet locations that you may access through HYPERCEPT™, or from which you access HYPERCEPT™, nor are we responsible for the content or accuracy of any such websites or locations. If you access any other website or Internet locations through HYPERCEPT™, you do so at your own risk. You agree not to hold or seek to hold Astellas or our partners or licensors liable for any claim relating to your use of such third-party web sites, functionalities, products or services.

8. Confidential Information

   Unless otherwise expressly agreed in writing prior to your submission to us, or as set forth in these Terms of Use or Astellas’ Privacy Policy, any comments, feedback, information, or other material submitted or sent to us will be deemed not to be confidential or secret. By submitting or sending comments, feedback, information, or other material to us, you represent and warrant that the information and material is original to you and that no other party has any rights to the information or material. You hereby agree that we shall have the unrestricted, worldwide right to reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, perform, display, and otherwise use any such information and material (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology, now known or later developed, without obligation to you. You also represent and warrant that any “moral rights” in posted information and materials have been waived.

   Please see the Astellas’ Privacy Policy for more information on how we and our service providers, contractors, agents, and other partners in connection with HYPERCEPT™ may use your Personal Information.

9. Trademarks

   All brand, product, and service names used, including or regarding HYPERCEPT™ or ASTELLAS are the trademarks, trade names, or service marks of Astellas, unless otherwise stated.  You may not distribute products or offer services under or by reference to or otherwise use or reproduce any such trademarks, trade names, or service marks, or use any meta tags or any other “hidden text” utilizing any such trademarks, trade names, or service marks, without the express prior written permission of us or the owner of such trademarks, trade names, or service marks.

10. Registration and Security

    By entering any information on HYPERCEPT™, you represent and warrant that: (i) you are at least 18 years of age; (ii) you are using your actual identity; (iii) you have provided only true, accurate, current, and complete information; and (iv) you will maintain and promptly update the information that you provide to keep it true, accurate, current, and complete. Additionally, you agree to maintain the strict confidentiality of your account and any passwords issued to you for your use of or access to HYPERCEPT™, and you agree not to allow any other person or entity to use any username(s) or password(s) that are issued to you. You shall be responsible for all activity that occurs under your account or password. Neither Astellas nor its partners, suppliers or licensors will be liable for any loss or damage arising from your failure to comply with these obligations. If you wish to cancel a username or password, or if you become aware of any loss, theft, or unauthorized use of a username or password, please notify us immediately. We reserve the right to delete or change any username or password at any time and for any reason.

11. Modification of HYPERCEPT™

    We reserve complete and sole discretion with respect to the operation of HYPERCEPT™. We reserve the right, for any reason, in our sole discretion, to terminate, change, suspend, or discontinue any aspect of HYPERCEPT™, including, but not limited to, content or features. We may also impose limits on certain features of HYPERCEPT™ or restrict your access to part or all of HYPERCEPT™ without notice or penalty. We may suspend or terminate your account or your use of HYPERCEPT™ at any time, for any reason or for no reason at all. We also may amend these Terms of Use at any time. If we do so, we will notify you. Your continued use of HYPERCEPT™ after we post notice of amendments constitutes your acceptance of those amendments. For this reason, we encourage you to review these Terms of Use whenever you use HYPERCEPT™.

12. Disclaimer of Warranties and Liability
    1. HYPERCEPT™ IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, ASTELLAS AND ITS PARTNERS, SUPPLIERS AND LICENSORS (COLLECTIVELY, “PARTNERS”) DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ALL, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. YOU EXPRESSLY AGREE THAT USE OF HYPERCEPT™ IS AT YOUR SOLE RISK AND YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE OF HYPERCEPT™. NEITHER WE NOR ANY OF OUR PARTNERS REPRESENT OR WARRANT THAT HYPERCEPT™ WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS, IF ANY, WILL BE CORRECTED, OR THAT HYPERCEPT™ IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, NOR DO WE OR OUR PARTNERS MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, PERFORMANCE, OR SUITABILITY OF HYPERCEPT™. IN THE EVENT OF ANY PROBLEM WITH HYPERCEPT™, YOU AGREE THAT YOUR SOLE REMEDY IS TO CEASE USING HYPERCEPT™. WE DISCLAIM ALL EQUITABLE INDEMNITIES.
    2. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW
    3. WE EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR, AND YOU AGREE THAT NEITHER ASTELLAS NOR ITS PARTNERS WILL BE RESPONSIBLE OR LIABLE FOR: (A) ERRORS IN THERAPEUTIC CONCLUSIONS OR INTERVENTIONAL INSTRUCTIONS PROVIDED BY HEALTHCARE PROVIDERS, WHETHER OR NOT RELYING ON HYPERCEPT™; (B) MALFUNCTION OR LOSS OF USE OF ANY HARDWARE OR SOFTWARE; (C) LOSS OR DEGRADATION OF COMMUNICATIONS BETWEEN YOU, HYPERCEPT™, YOUR HEALTHCARE PROVIDERS, OR ONE OF OUR SERVICE PROVIDERS FOR ANY REASON NOT WITHIN OUR CONTROL; (D) INJURY TO ANYONE ASSOCIATED WITH USE OF ANY HARDWARE USED FOR DATA COMMUNICATION WITH HYPERCEPT™ OR US; (E) FAILURE BY YOU TO CORRECT ERRONEOUS DATA OR COMPLY WITH PROPER INSTRUCTIONS; (F) ERRORS RESULTING FROM UNAUTHORIZED ACCESS TO HYPERCEPT™ OR ASSOCIATED DATA; OR (G) ANY DAMAGE OR INJURY TO ANYONE DIRECTLY OR INDIRECTLY RESULTING FROM USE OF HYPERCEPT™ OR COMMUNICATION WITH HYPERCEPT™, YOUR HEALTHCARE PROVIDERS, OR US WHERE THE PROXIMATE CAUSE OF SUCH DAMAGE OR INJURY IS NOT WITHIN OUR CONTROL. THE FOREGOING DOES NOT IMPLY THE ASSUMPTION BY US OF ANY FORM OF LIABILITY UNDER ANY CIRCUMSTANCES.
13. Limitation of Liability
    1. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SOLE REMEDY FOR ANY CLAIM FOR DAMAGES ARISING OUT OF OR RELATED TO HYPERCEPT™, THESE TERMS OF USE, OR US, INCLUDING WITHOUT LIMITATION, ANY SERVICE, OR ANY PRODUCT OR SERVICE ACQUIRED THROUGH HYPERCEPT™, SHALL BE TO STOP USING HYPERCEPT™ AND ITS CONTENT. UNDER NO CIRCUMSTANCES SHALL WE, OUR PARTNERS, OR ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, EMPLOYEES, AGENTS OR REPRESENTATIVES, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, TRANSMITTING, OR DISTRIBUTING HYPERCEPT™ OR ANY PART THEREOF, BE LIABLE FOR ANY PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING FOR LOST OR CORRUPTED DATA OR LOST PROFITS OR OTHER ECONOMIC DAMAGES, ARISING FROM OR IN CONNECTION WITH HYPERCEPT™ OR ANY PRODUCTS OR SERVICES MADE AVAILABLE OR LISTED ON IT, WHETHER UNDER A THEORY OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. SOME STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE DISCLAIMER OF CERTAIN WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THE EVENT THE FOREGOING LIMITATION OF LIABILITY IS HELD TO BE UNENFORCEABLE FOR ANY REASON, THEN OUR MAXIMUM LIABILITY FOR ANY OF THE FOREGOING TYPES OF DAMAGES SHALL BE LIMITED TO THE AMOUNT THAT WE RECEIVED FROM YOU FOR THE TRANSACTION THAT GAVE RISE TO THE CLAIM. THE LIMITATIONS IN THIS PROVISION SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
14. Indemnification

    You agree to indemnify, defend, and hold harmless us and our directors, officers, employees, agents, partners, licensors, suppliers and representatives from and against any and all third party claims, demands, and lawsuits, and any resulting or related damages, liabilities, losses, costs, or expenses (including but not limited to reasonable fees and disbursements of counsel and court costs), judgments, settlements, and penalties of every kind arising from: (i) your use of HYPERCEPT™, or any content or data provided in connection therewith, in violation of these Terms of Use by you or any of your partners, employees, agents, or contractors; (ii) any claim that HYPERCEPT™ as modified or altered by you or your partners, employees, agents, or contractors, or the use by us or our service providers or licensors of any data submitted by you, infringes the patent, copyright, or other intellectual property right, or misappropriates the trade secrets, of any third party; (iii) any inaccurate or incomplete data, or any virus, worms, spyware, back door, Trojan horse, or other malicious code transmitted by you; (iv) any breach of these Terms of Use by you; and (v) any violation of applicable statutes, rules, orders, regulations, or other laws by you.

15. Term and Termination

    Your obligations under the Terms of Use shall continue for as long as you access or use HYPERCEPT™ or use or maintain any of the content of HYPERCEPT™ or copies thereof. You may terminate your obligations at any time by discontinuing your use of HYPERCEPT™. However, your termination of your obligations under these Terms of Use does not relieve you from liability resulting from your failure to comply with the obligations of the Terms of Use before such termination. We additionally reserve the right, in our sole discretion, to terminate your access to or use of HYPERCEPT™, and any related services or any portion thereof at any time and for any reason, including, without limitation, breach of the Terms of Use. Certain provisions of the Terms of Use, by their nature, survive the termination of your use of HYPERCEPT™.

16. Force Majeure

    No party to these Terms of Use shall be liable to another hereunder or otherwise for performance that is prevented or delayed by a cause outside the control of the party, including without limitation, natural disaster, war, riot, labor disturbance, or failure of publicly available channels of communication.

17. Dispute Resolution

    PLEASE READ THIS SECTION CAREFULLY. YOU AND ASTELLAS ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

    1. You hereby agree that, except as provided below, any claim, dispute, or controversy between you and Astellas, whether brought by you or by Astellas, arising out of or relating in any way to these Terms of Use or your use of HYPERCEPT™ must be resolved through final, binding, and confidential arbitration. However, either you or we may assert claims in small claims court if those claims qualify under applicable law.  In addition, either you or we have the option to bring claims in court to enjoin infringement or other violation of intellectual property rights without seeking damages and without compliance with Section 17.b. This arbitration obligation applies (subject to the above exceptions) regardless of whether the claim or dispute involves a warranty, tort, fraud, misrepresentation, product liability, negligence, violation of a statute, or any other legal theory.
    2. Mandatory Informal Dispute Resolution Procedure
       
       1. If you or Astellas intend to initiate an arbitration or small claims court proceeding, you or Astellas must first send a fully completed notice of the claim or dispute (the “Notice”) to the other Party. The Notice must include (1) the claimant’s name and contact information (email address, mailing/physical address, and telephone number); (2) a description of the nature and basis of the claim or dispute; (3) the specific account at issue; and (4) the nature, amount, and basis of the relief sought with a detailed calculation of it. The Notice must be personally signed by you (if you are sending the Notice) or by an Astellas representative (if Astellas is sending the Notice), even if you or Astellas are represented by counsel. Your Notice shall be sent by email to GCO@astellas.com. Astellas’ Notice shall be sent to the email or physical address it has on file for you.
       2. Once the Notice is received by the other party, you and Astellas agree to participate and negotiate (personally and, if you and Astellas are represented, with counsel) in good faith about the dispute for sixty (60) days (the “Negotiation Period”). This personal participation includes a telephone settlement conference between you and Astellas if it is requested by the party that receives the Notice.
       3. If the dispute is not resolved within the Negotiation Period (or a longer period agreed to by the parties), You or Astellas may initiate an arbitration or a small claims court proceeding in accordance with these Terms of Use.
       4. Neither party to these Terms of Use may initiate an arbitration or a small claims court proceeding unless that party has fully complied with this Section 17.b. If either party violates this Section 17.b., a court of competent jurisdiction has the authority to enjoin the prosecution of the arbitration or small claims court proceeding, and, unless prohibited by law, the Judicial Arbitration and Mediation Services (“JAMS”) shall neither accept nor administer such arbitration nor assess arbitration fees in connection with such arbitration. A party may elect to raise, and seek monetary relief in connection with, non-compliance with this Section 17.b in arbitration or small claims court.
       5. Any relevant limitations period and filing fee or other deadlines will be tolled during the Negotiation Period, which may be extended by written agreement of the parties.
    3. The arbitration of any claim or dispute hereunder (including whether a valid arbitration agreement exists and whether it covers the dispute) will be administered by JAMS in accordance with the then-current Streamlined Arbitration Rules and Procedures (available at https://www.jamsadr.com/rules-streamlined-arbitration/) and, if you are an individual, in accordance with JAMS’ Consumer Arbitration Minimum Standards (available at https://www.jamsadr.com/consumer-minimum-standards/)(as applicable, the “JAMS Rules”). If the JAMS Rules conflict with any portion of these Terms of Use, these Terms of Use shall control. The parties will mutually agree on an arbitrator, provided that if the parties cannot agree on an arbitrator within ten (10) days, JAMS will choose the arbitrator. The arbitration of any claims or disputes hereunder must be conducted in Wilmington, Delaware, except that if you are an individual the arbitration may be conducted in the county or parish of your primary residence. You or we also may choose to have the arbitration conducted by telephone, based on written submissions, or in person at another mutually agreed location. Payment of all filing, administration, and arbitrator fees will be governed by the JAMS Rules. In rendering an award, the arbitrator shall apply the governing law stated in the Applicable Law section below, except that the Federal Arbitration Act will govern the interpretation and enforcement of this Section.
    4. Unless you opt-out of arbitration as set forth below, and except with respect to the class arbitration waiver as set forth below, the arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to interpretation, applicability, unconscionability, formation, arbitrability, and/or enforceability of this arbitration provision, including any challenge that the arbitration provision or these Terms of Use is void, voidable, or otherwise invalid. There is no judge or jury in arbitration, the arbitration will be subject to different rules than the rules that would apply in court, and court review of arbitration awards is very limited. However, the arbitrator will be empowered to grant whatever relief would be available in court under law or in equity (including injunctive and declaratory relief and statutory damages) and must follow these Terms of Use, as a court would. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
    5. You agree that an arbitration will be conducted on an individual, and not a class-wide, basis. An arbitrator will have no authority to certify a class or award class-wide relief. The arbitrator is authorized only to award relief on behalf of the individual parties and only to their extent of their individual claims. YOU ACKNOWLEDGE AND AGREE THAT UNLESS OTHERWISE AGREED IN WRITING BY YOU AND ASTELLAS, WITH REGARD TO ANY CLAIMS HEREUNDER, YOU WILL NOT BE ENTITLED TO SEEK TO, AND AN ARBITRATOR OR COURT MAY NOT, JOIN OR CONSOLIDATE YOUR CLAIMS WITH ANY OTHER SIMILAR CLAIMS OF ANY OTHER PERSON OR PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Your waiver of your rights to bring or participate in court proceedings and as a representative or member of a class applies specifically, but is not limited to, claims brought under California’s Unfair Competition Law, False Advertising Act and its Consumer Legal Remedies Act, Ohio’s Unfair and Deceptive Trade Practices Act and any other state consumer protection laws.
    6. The arbitrator shall be empowered to award the prevailing party any remedy available at law or in equity not specifically precluded by these Terms of Use, including without limitation injunctive or declaratory relief, specific performance, and damages. The arbitrator’s award will consist of a written statement stating the disposition of each claim. The award also will provide a concise written statement of the essential findings and conclusions on which the award is based. Each party shall pay its own fees and costs of its own attorneys, experts and witnesses incurred in connection with any arbitration or court proceeding between the parties, notwithstanding any provision awarding attorneys’ fees to a prevailing party that may be a part of any statute under which you or we may bring a claim. The award of the arbitrator may be entered as a judgment in any court of competent jurisdiction.
    7. YOU AND WE SPECIFICALLY ACKNOWLEDGE AND AGREE THAT EACH OF US EXPRESSLY WAIVES THE RIGHT TO BRING A LAWSUIT IN COURT BASED ON ANY CLAIMS OR DISPUTES DESCRIBED ABOVE, AND THAT YOU AND WE EXPRESSLY WAIVE THE RIGHT TO HAVE SUCH CLAIMS OR DISPUTES RESOLVED BY A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION. AS SUCH, YOU AND WE HEREBY AGREE TO RESOLVE ANY AND ALL SUCH CLAIMS DESCRIBED ABOVE VIA INDIVIDUAL BINDING ARBITRATION PER THE TERMS AND CONDITIONS SET FORTH IN THIS SECTION.
    8. You can opt out of this arbitration provision within sixty (60) days of the date that you first agreed to these Terms of Use or to any subsequent revisions to this Section. If you opt out of a subsequent revision, you will remain bound by the prior version of this Section unless you previously opted out of that version. To opt out, you must send your name, address, username, the email address, or phone number associated with your account, and a clear statement that you want to opt out of this arbitration agreement to GCO@astellas.com. You may opt out of these Terms of Use in their entirety by not using HYPERCEPT™.
    9. Any action or claim against us must be brought within one year following the date on which the claim first accrued or shall be deemed forever waived.
18. Applicable Law and Venue
    1. All matters relating to HYPERCEPT™ or these Terms of Use, and any dispute or claim between the parties arising out of or related to HYPERCEPT™ or these Terms of Use (in each case, including non-contractual disputes or claims), are governed by and will be construed in accordance with the laws of the United States and the State of Delaware, without regard to Delaware’s conflict of laws principles.
    2. If for any reason, a claim proceeds in court rather than arbitration as provided in Section 17 above, the claim shall be resolved exclusively (except as provided below) in the appropriate state and federal courts located in Wilmington, Delaware. Both parties hereby irrevocably consent to the venue and jurisdiction of such courts, and waive all defenses, including without limitation for lack of personal jurisdiction and forum non conveniens, with respect to such courts for the adjudication of such claims. YOU AND WE EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY SUCH LAWSUIT AND AGREE THAT NO SUCH LAWSUIT CAN BE BROUGHT AS A CLASS ACTION OR OTHER REPRESENTATIVE ACTION.
    3. Notwithstanding anything else in Section 17 or this Section 18 to the contrary, the following claims may be brought in any court of competent jurisdiction: claims in court to seek temporary or preliminary injunctive relief in aid of arbitration and without seeking damages.
19. Severability

    If any provision or part of a provision of the Terms of Use is contrary to law, the remaining part of the provision and the remaining provisions of the Terms of Use will remain in effect.

20. Notice

    All formal notices to us shall be sent to:

    Astellas Pharma US, Inc.
    Attention: General Counsel’s Office
    2375 Waterview Drive
    Northbrook, IL 60062-6111

    All notices to you shall be sent to the email address that you provide when you register for HYPERCEPT™. By registering for HYPERCEPT™, you consent to receive communications from us electronically and agree that any electronic communications satisfy any requirement that those communications be in writing. Any notice provided under the Terms of Use shall be deemed given one business day after the email is sent. If you do not register, or register with inaccurate information, you hereby waive any right to notice for any purpose related to the Terms of Use or HYPERCEPT™.

21. Further Contact

    If you have an inquiry regarding the functionality of HYPERCEPT™, you may contact us as follows: support@hypercept-ga.com.

22. Assignment

    You may not assign, by operation of law or otherwise, any rights or delegate any duties under the Terms of Use to any third party without prior written consent by us.  Any purported assignment lacking such consent will be void at its inception.  We may assign all or part of its rights and/or delegate all or part of its duties under the Terms of Use to any party, at any time, and in its sole discretion, upon notice of assignment by posting such notice in HYPERCEPT™.