SIMVANA End User License Agreement
This SIMVANA Program End User License Agreement (“License Agreement”) constitutes a legally binding agreement between you (“Operator” as defined below or “You” or “Your”) and Company SIMVANA, LLC. ("Company" or “We” or “Us” or “Our”), (each a "Party" and collectively the "Parties”), as of the date You accept it and applies to Your use of and access to the VR Application (defined below).
In connection with use of Company Services (“Services” as defined below), You may need to download one or more copies of the VR Application. This License Agreement is a license to use those downloaded or pre-installed copies in a non-concurrent session as a named user, subject to the terms and conditions hereof and in accordance with the Company Terms and Conditions which You must accept in order to use the VR Application or access the Service. If Your right to use the VR Application or Services is terminated, this License Agreement and the license granted herein shall simultaneously terminate.
BY INDICATING YOUR ACCEPTANCE OF THIS LICENSE AGREEMENT OR BY ACCESSING OR USING THIS SERVICE, YOU ACKNOWLEDGE AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS LICENSE AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU ALSO REPRESENT AND WARRANT THAT THE PERSON ACCEPTING THIS AGREEMENT ON YOUR BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON ACCEPTING THIS LICENSE AGREEMENT ON OPERATOR’S BEHALF REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND OPERATOR TO THESE TERMS.
YOU ALSO REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS CONTRACT AND ARE NOT PROHIBITED BY LAW FROM ACCESSING OR USING THIS SERVICE. YOU FURTHER UNDERSTAND THAT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISON CONTAINING A CLASS ACTION WAIVER, WHICH SHALL BE ENFORCEABLE AGAINST OPERATORS. THIS AGREEMENT ALSO GOVERNS YOUR USE OF THE VR APPLICATION AND SERVICES.
COMPANY MAY MODIFY THIS LICENSE AGREEMENT AND THE COMPANY TERMS AND CONDITIONS FROM TIME TO TIME. YOU ARE FREE TO CHOOSE TO ACCEPT A MODIFIED VERSION OF THESE AGREEMENTS OR NOT, BUT ACCEPTING THESE AGREEMENTS, AS MODIFIED, IS REQUIRED FOR YOU TO CONTINUE USING THE COMPANY SERVICES AND VR APPLICATION. YOU MAY HAVE TO “ACCEPT” OR “AGREE” TO SHOW YOUR ACCEPTANCE OF ANY MODIFIED VERSION OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF ANY MODIFIED VERSION OF THESE AGREEMENTS, YOU MUST TERMINATE YOUR USE OF THE COMPANY SERVICES AND VR APPLICATION. EXCEPT AS OTHERWISE EXPRESSLY STATED, ANY USE OF THE VR APPLICATION AND SERVICES IS SUBJECT TO THE VERSION OF THESE AGREEMENTS IN EFFECT AT THE TIME OF USE.
1.1. “Authorized User” means each of the individuals authorized to use the VR Application on behalf of Operator, such as an employee or student, and who is provided access to the VR Application or Services by the Operator or for whom Operator creates a login through the Service Software for access. An Authorized User is one natural person.
1.2. "Data" means any and all data, statistics, content, and information, and any derivatives or aggregations thereof, in any form or medium, that is collected, downloaded, uploaded or otherwise received, directly or indirectly, from Operator, an Authorized User, or an Operator User or by or through the VR Application or Services, including any data, content, and information derived or processed by the Services based on Operator’s, an Authorized User’s, or an Operator User’s use of and access to the Services.
1.3. “Defined Location” is a single physical location of Operator identified by Operator when it sets up its account with Company identifying the number of Stations for such location. (Note: if You have more than one physical location with which You wish to access and use the VR Application or Services, You may do so and provide the applicable information for each Defined Location either at initial account set up or at a later date through the VR Application or Services).
1.4. "VR Application” means the software component for each station including the background service which monitors activity and reports to Our web services, provides station state information and enables other features made available by Company through the Service Software for use in connection with the Services at the Defined Location, including all new versions, updates, revisions, replacements, improvements and modifications of the foregoing.
1.5. “Operator” means an individual, business or organization that provides access to virtual reality applications, and associated materials, tools, and content made available on or through the VR Application or Services, whether by means of download, stream or otherwise at Operator’s Defined Locations or via Operator’s platform or otherwise.
1.6. “Operator User” means those end users or individuals who are customers of Operator with whom Operator or its Authorized User make available the rendering of the VR Application portion of the Services in order to provide such individuals with one or more virtual reality experiences for a limited duration.
1.7. “Service Software” means the Company software application(s), including the virtual reality platform and management system (the “Platform”), which includes (i) the cloud-based portal through which Operators may download and otherwise access updates and any online tools that Operator Users may use as part of the Service, and (ii) the VR Application software and the launcher which allows users to browse, find, and start modules they want to experience, (c) all software and/or applications made available by Us from time to time and to which these terms are applied, whether made available on or accessed by the Platform, mobile devices, web interfaces, computers, tablets or otherwise that Company provides access to and use of as part of the Services.
1.8. “Services” means the (a) the website www.simvana.com and all corresponding domains, subdomains, web pages and websites associated therewith (“Sites”), (b) Service Software as defined above, and (c) any other content, learning materials, tools, games, applications, features, functionality, documentation, information, and services offered by Us through the Sites and/or Platform. Services are available subject to Company’s sole discretion and certain Services may be limited based on region or license terms.
1.9. “Company Materials” means the VR Application, Services and Company Systems, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technology and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Company in connection with the VR Application, Services or otherwise comprise or relate to the VR Application, Services or Company Systems. Company Materials include any Data collected or derived from Company’s monitoring of Operator’s, Authorized Users’, or Operator Users’ access to or use of the VR Application or Services.
1.10. "Company Systems" means the information technology infrastructure used by or on behalf of Company in performing the Services, including all computers, software, hardware, database, electronic systems (including database management systems) and networks, whether operated directly by Company or through the use of third party services.
1.11. “Station” means the user station that Operator makes available to its Operator Users that consists of a single computer and one or more virtual reality headsets.
1.12. "Term" means the time duration for which You have access to the VR Application or Services as part of the Company Terms and Conditions.
1.13. “Third Party Materials” means materials and information, in any form or medium, including any software, advertisements, documents, data, content, specifications, products, games, equipment or components that are used in conjunction with, or of or relating to the VR Application or Services, or use thereof that are not owned or proprietary to Company. For the avoidance of doubt, Third Party Materials include any software components obtained or licensed separately by Operator, and any accounts or other licenses Operator makes or obtains in connection with any third party for use in connection with the VR Application or Services.
2. VR Application License Grant
2.1. ACCESS TO THE VR APPLICATION AND SERVICE SOFTWARE. Subject to and conditioned on Your compliance with the Company Terms and Conditions and this License Agreement, as such may be updated from time to time, Company grants Operator a personal, non-exclusive, non-transferable, non-sublicensable, limited right to download and use the permitted number of copies of the VR Application and Services during the Term solely for Operator’s legitimate, day-to-day, internal business purposes of managing its own operations. The permitted number of copies shall be a single copy of the VR Application for each computer associated with each Station during the Term in such quantities as Operator sets forth upon initial registration or such quantities as Operator may adjust in orders placed with Company, solely for Operator’s legitimate, day-to-day, internal business purposes of managing its own operations. For the avoidance of doubt, this license allows Operator and its Authorized Users to make available the visual rendering of the VR Application portion of the Services in the customer headset to its Operator Users.
3. Your Responsibilities and Acknowledgements
3.2. RESTRICTIONS. You shall not permit any other person (who is not an Authorized User) to access or use the Company Materials except as expressly permitted by this License Agreement. For clarity and without limiting the generality of the foregoing, You shall not, except as this License Agreement expressly permits: (a) sell, distribute, lease, lend, market, license, sublicense, or otherwise grant to any person or entity any right to use the Services or Company Materials; (b) decompile, disassemble, reverse-engineer, modify, adapt, tamper with, translate, create derivative works, create or recreate the source code for any part of the VR Application, Services or Company Materials, in whole or in part; (c) modify, remove, erase, obscure, tamper with or fail to preserve any copyright or product identification, trademark, trade name, proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on the VR Application, Services or Company Materials, including any copy thereof; (d) bypass or breach any security device or protection used by the VR Application, Services or Company Materials or access or use the VR Application, Services or Company Materials other than by an Authorized User through the use of his or her own then valid access credentials; (e) input, upload, transmit or otherwise provide to or through the VR Application, Services or Company Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any malicious, disruptive, or harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the VR Application, Services, Company’s Systems or Company’s provision of services to any third party, in whole or in part; (g) access or use the VR Application, Services or Company Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Company customer), or that violates any applicable law; (h) access or use the VR Application, Services or Company Materials for purposes of competitive analysis of the VR Application, Services or Company Materials, the development, provision or use of a competing software service or product or any other purpose that is to Company’s detriment or commercial disadvantage; or (i) otherwise access or use the VR Application, Services or Company Materials beyond the scope of the authorization granted under Section 2. Authorized Users are not allowed to share account or login credentials.
3.4. THIRD PARTY MATERIALS REMEDY. As between Company and You, Your sole remedy with respect to such Third Party Materials and services shall be with the third party provider.
3.5. PASSWORD; SECURITY. Operator and its Authorized Users are responsible for maintaining the confidentiality of all access credentials, including logins and passwords, and for ensuring that each and all access credentials are used only by the applicable Operator and Authorized User. You are responsible for any and all activities that occur under Your access credentials to the extent such activities are not performed or caused by Company, its agents or employees. You shall promptly notify Company of any unauthorized use of Your account, the Services, or any other breach of security known to You. You shall treat any Company Materials made available to You as proprietary and keep in confidence and prevent the disclosure to any person(s) outside the intended purpose of this agreement. You shall take all reasonable precautions to protect the confidentiality of such Company Materials made available to You. Company shall have no liability for any loss or damage to You in any form arising from Your failure to comply with these requirements.
4. Proprietary Rights and Other Licenses
4.1. RESERVATION OF RIGHTS. This License Agreement does not convey to You title or ownership of the VR Application, Services or any Company Materials, but only a right of limited use in accordance with the terms of this License Agreement. Company reserves all rights, title, and interest in and to the VR Application, Services, Company Materials, including all related intellectual property rights and proprietary rights therein.
4.2. FEEDBACK. From time to time, Company or a third party engaged by Company may request feedback and other information from You or Your Users about such topics as the features and functions of the VR Application and Services or Your experiences with the VR Application and Services (“Feedback”). Providing Company with Feedback is optional. For any feedback that You provide to Company all right, title, and interest in and to, and the right to pursue protection for, such feedback, including any suggestions, recommendations, corrections, improvements, enhancements, and modifications (collectively “Improvements”) to any of the VR Application, Services, or relating to Company, or the Company Materials shall vest solely with the Company, and You agree to assign and do hereby assign all such Improvements to the Company without any additional consideration or contribution or acknowledgement. By providing Feedback to the Company, You grant Company a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, transferable and fully sublicensable right to use the Feedback for any lawful purpose, including, without limitation, the right to reproduce, adapt, publish, translate, distribute, and display all or parts of the Feedback in any medium whatsoever along with Your first name and last initial, and local geographic area, as determined by the Company in its sole discretion. Company may also use the Feedback in anonymous and aggregate reviews.
4.3. EARLY ACCESS OR BETA RELEASES. We sometimes release products and features that we are still testing and evaluating. Those services commonly referred to as beta, preview, early access, or evaluation (or with words or phrases with similar meanings) and may not be as reliable as Company other services, so please keep that in mind.
4.4. USE OF YOUR NAME AND STATEMENTS. You grant Company a fully-paid, perpetual, transferable worldwide license to use Your name, likeness, voice, image, trademark, service mark, and logo (as applicable) and any statements or quotes of You for promotion, trade, commercial, advertising, and publicity purposes, in any and all media now known or hereafter discovered without notice, review or approval and without additional compensation.
4.5. OWNERSHIP OF DATA. As between You and Company, Company owns any and all Data. No rights or licenses are granted to You to use the Data under this Agreement, except as expressly set forth herein, and Company reserves all rights, title, and interest therein. Company shall share certain Data with You to the extent Company elects to make Data available. You may use such Data solely for Your internal business purposes and may not share such Data with third parties, except as otherwise agreed to in writing. You hereby grant the Company the right to track, monitor, collect and publish information and Data generated via the VR Application or Services, including that related to Operators’ and Operator Users’ interaction, which shall be determined by the Company in its sole discretion from time to time.
5.1. You agree to maintain the confidentiality of Company’s Confidential Information. For purposes of this License Agreement, the term “Confidential Information” means all portions of the VR Application, Services and any content therein, including the Company Materials, and any other trade secrets, know-how, business operations, processes, software, plans, strategies, and customers that are not public or portions that are permitted to be made available to the Operator User through grant of the limited license in Section 2. You acknowledge and agree that a breach of any confidentiality or proprietary rights provision of this License Agreement may cause the Company irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the Company will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
5.2. Title 18, § 1833(b) of the United States Code provides that “[a]n individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (A) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Accordingly, the Parties have the right to disclose trade secrets as allowed by 18 U.S.C. § 1833(b) and nothing in this License Agreement is intended to conflict with or limit the immunity under 18 U.S.C. § 1833(b).
6. Representations and Warranties
Operator represents and warrants that it will perform its obligations in this License Agreement in compliance with all applicable laws, directives, and regulations. Without in anyway limiting the foregoing, Operator represents and warrants that it will process all opt out and unsubscribe requests, and collect, use, transfer, and disclose all personal data, from users in compliance with Applicable Laws. You also agree to indemnify, defend, and hold the Company harmless from any and all claims, costs, proceedings, demands, losses, damages, fines, and expenses (including, without limitation, reasonable attorney’s fees and legal costs, which will be reimbursed as incurred) of any kind or nature, arising from or relating to, any actual or alleged failure to comply with the foregoing representations and warranties.
7. Successors and Assigns
You shall not assign or delegate any of Your rights or obligations under this License Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the Company. Any purported assignment, delegation or transfer in violation of this Section 7 is void. Company may freely assign and delegate its rights and obligations under this License Agreement without notice to You. This License Agreement is binding upon the Parties hereto and their respective representatives, successors, and permitted assigns.
8.1. TERM. This License Agreement shall commence on the date You access and use the Company Materials, including the Service Software and VR Application, and shall continue until terminated under the terms of this Agreement.
8.2. TERMINATION. We may terminate Your access to the VR Application, Services and the Company Materials at any time without notice.
8.3. EFFECT OF EXPIRATION OR TERMINATION. Upon any expiration or termination of this License Agreement, You shall immediately cease all use of any Services and the Company Materials, including the use of and access to the Service Software and the VR Application. Company, in its sole discretion, may disable all Your access to the VR Application, Services and the Company Materials or delete all Data associated with You and Operator Users, if any.
You agree to indemnify, defend and hold the Company and its affiliates, and their respective successors and assigns, present and former directors, officers, employees, representatives, agents, partners, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with (a) Your, or any Operator User’s, use of the VR Application, Services or Company Materials to include but not limited to claims for personal injury, death, or damage to property or other demands; (b) Your, or any Operator User’s, breach or violation this Agreement. The Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by You and all negotiations for its settlement or compromise at Your expense, and You agree to fully cooperate with Us upon Our request.
10. Disclaimers, Limitation of Liability and Warnings
10.1. DISCLAIMERS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND THIRD PARTY MATERIALS AND THIRD PARTIES UTILIZED BY YOU AND THE COMPANY IS NOT RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOUR USE OF THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. EXCEPT FOR ANY WARRANTIES BY THE COMPANY EXPRESSLY PROVIDED IN THIS LICENSE AGREEMENT, THE SERVICES AND COMPANY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR STATEMENTS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE COMPANY SERVICES OR COMPANY MATERIALS. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY OR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION THAT THE FEATURES AND FUNCTIONS CONTAINED IN THE COMPANY VR APPLICATION, COMPANY SERVICES OR COMPANY MATERIALS WILL MEET YOUR SPECIFIC REQUIREMENTS OR EXPECTATIONS OR THAT THE OPERATION OF THE COMPANY VR APPLICATION, COMPANY SERVICES OR USE OF THE COMPANY MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE OR INTEROPERABLE OR COMPATIBLE WITH OTHER SOFTWARE OR SERVICES, THAT DEFECTS WILL BE CORRECTED, THAT THE COMPANY VR APPLICATION, COMPANY SERVICES OR COMPANY MATERIALS WILL BE UPDATED, UPGRADED OR IMPROVED, THAT THE COMPANY VR APPLICATION, COMPANY SERVICES, COMPANY MATERIALS, OR COMPANY SYSTEMS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE, TITLE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO VERBAL OR WRITTEN REPRESENTATIONS, INFORMATION OR ADVICE GIVEN BY THE COMPANY OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS WARRANTIES MADE BY THE COMPANY IN THIS LICENSE AGREEMENT.
10.2. MEDICAL CONTENT DISCLAIMER. Anesthesia is an ever-changing field. The editors, authors, and content creators of the VR Application and Services have made every effort to provide information that is accurate and complete as of the date of publication. However, in view of the rapid changes occurring in medical science, as well as the possibility of human error, the VR Application and Services may contain technical inaccuracies, typographical or other errors. Operators and Operator Users are advised to check the product information currently provided by the manufacturer of each drug to be administered to verify the recommended dose, the method and duration of administration, and contraindications. It is the responsibility of the treating nurse and physician who relies on experience and knowledge about the patient to determine dosages and the best treatment for the patient. The information contained herein is provided "as is" and without warranty of any kind. The contributors to the VR Application, Services and Company Materials, including the Company, disclaim responsibility for any errors or omissions or for results obtained from the use of information contained herein.
10.3. COMPANY LIMITATION OF LIABILITY. IN NO EVENT WILL THE COMPANY, OR ANY OF ITS SERVICE PROVIDERS, OR SUPPLIERS, OR EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS LICENSE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY DAMAGES WHATSOEVER, INCLUDING: (A) LOSS OF PRODUCTION, USE, BUSINESS, INCOME, REVENUE, PROFIT, OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE, LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLUDING SUCH LOSSES IDENTIFIED IN (A) – (C) OF THIS PROVISION TO THE EXTENT THOSE LOSSES OR PORTIONS THEREOF ARE NOT DIRECT LOSSES), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. YOU SHALL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF THE SERVICES BY YOU OR YOUR OPERATOR USERS. COMPANY’S AGGREGATE COLLECTIVE LIABILITY IS THAT AS SET FORTH IN THE COMPANY TERMS AND CONDITIONS BETWEEN OPERATOR AND COMPANY.
10.4. EPIC LIMITATION OF LIABILITY. THE VR APPLICATION INCLUDES THE UNREAL® ENGINE CODE AND OTHER CODE, MATERIALS, AND INFORMATION (THE “EPIC MATERIALS”) FROM EPIC GAMES, INC. (“EPIC”). ALL EPIC MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. COMPANY, EPIC, AND EPIC’S AFFILIATES DISCLAIM ALL WARRANTIES, CONDITIONS, COMMON LAW DUTIES, AND REPRESENTATIONS (EXPRESS, IMPLIED, ORAL, AND WRITTEN) WITH RESPECT TO THE EPIC MATERIALS, INCLUDING WITHOUT LIMITATION ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES AND CONDITIONS OF ANY KIND, SUCH AS TITLE, NON-INTERFERENCE WITH YOUR ENJOYMENT, AUTHORITY, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT EPIC KNOWS OR HAS REASON TO KNOW OF ANY SUCH PURPOSE), SYSTEM INTEGRATION, ACCURACY OR COMPLETENESS, RESULTS, REASONABLE CARE, WORKMANLIKE EFFORT, LACK OF NEGLIGENCE, AND LACK OF VIRUSES, WHETHER ALLEGED TO ARISE UNDER LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY, EPIC, AND EPIC’S AFFILIATES MAKE NO WARRANTY THAT (1) ANY OF THE EPIC MATERIALS WILL OPERATE PROPERLY, INCLUDING AS INTEGRATED IN THE VR APPLICATION, (2) THAT THE EPIC MATERIALS WILL MEET YOUR REQUIREMENTS, (3) THAT THE OPERATION OF THE EPIC MATERIALS WILL BE UNINTERRUPTED, BUG FREE, OR ERROR FREE IN ANY OR ALL CIRCUMSTANCES, (4) THAT ANY DEFECTS IN THE EPIC MATERIALS CAN OR WILL BE CORRECTED, (5) THAT THE EPIC MATERIALS ARE OR WILL BE IN COMPLIANCE WITH A PLATFORM MANUFACTURER’S RULES OR REQUIREMENTS, OR (6) THAT A PLATFORM MANUFACTURER HAS APPROVED OR WILL APPROVE THIS VR APPLICATION, OR WILL NOT REVOKE APPROVAL OF THIS VR APPLICATION FOR ANY OR NO REASON. ANY WARRANTY AGAINST INFRINGEMENT THAT MAY BE PROVIDED IN SECTION 2-312 OF THE UNIFORM COMMERCIAL CODE OR IN ANY OTHER COMPARABLE STATUTE IS EXPRESSLY DISCLAIMED BY COMPANY AND EPIC. COMPANY, EPIC, AND EPIC’S AFFILIATES DO NOT GUARANTEE CONTINUOUS, ERROR-FREE, VIRUS-FREE, OR SECURE OPERATION OF OR ACCESS TO THE EPIC MATERIALS. THIS PARAGRAPH WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER COMPANY, EPIC, EPIC’S LICENSORS, NOR ITS OR THEIR AFFILIATES, NOR ANY OF COMPANY'S OR EPIC’S SERVICE PROVIDERS, SHALL BE LIABLE IN ANY WAY FOR LOSS OR DAMAGE OF ANY KIND RESULTING FROM THE USE OR INABILITY TO USE THE EPIC MATERIALS OR OTHERWISE IN CONNECTION WITH THIS EULA, INCLUDING BUT NOT LIMITED TO LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE, OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL THE COMPANY, EPIC, EPIC’S LICENSORS, NOR ITS OR THEIR AFFILIATES, NOR ANY OF THE COMPANY'S OR EPIC’S SERVICE PROVIDERS BE LIABLE FOR ANY LOSS OF PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS EULA OR THE EPIC MATERIALS, OR THE DELAY OR INABILITY TO USE OR LACK OF FUNCTIONALITY OF THE EPIC MATERIALS, EVEN IN THE EVENT OF THE COMPANY'S, EPIC’S, OR EPIC’S AFFILIATES’ FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, PRODUCT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR OTHERWISE AND EVEN IF THE COMPANY, EPIC OR EPIC’S AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN IF ANY REMEDY FAILS TO PROVIDE ADEQUATE COMPENSATION. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF THE COMPANY, EPIC, EPIC’S LICENSORS, ITS AND THEIR AFFILIATES, AND ANY OF THE COMPANY'S OR EPIC’S SERVICE PROVIDERS SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
10.5. PHOTOSENSITIVE SEIZURE WARNING. Some people may experience a seizure when exposed to certain visual images, even people who have no history of seizures or epilepsy. They may have an undiagnosed condition that can cause these “photosensitive epileptic seizures” while being exposed to such visual images. These seizures may have a variety of symptoms that can lead to injury from falling down or striking nearby objects, for example. Some users report feeling nausea within minutes of starting an VR experience. You may experience nausea like effects for a while; in this case it is best to not move around too much after you take off your headset. Children and teenagers are more likely to experience these seizures than adults are. Company has NO RESPONSIBILITY to its Operators or Operator Users for problems caused through exposure to VR images.
10.6. USE OF HARDWARE, SYSTEMS, OR OTHER DEVICE It is Your sole responsibility to use any hardware, systems, or other device utilized for the VR Application, Services, or Company Material in accordance with any use, health, and/or safety warning included by their provider. 10.7 SAFE STATION ENVIRONMENT. It is the responsibility of the Operator to provide a safe Station environment for the Authorized Users. The Station area should be free from all trip hazards, overhead items, or other articles that could cause injury during use of the VR experience. It is the responsibility of Authorized User to survey the area prior to use to verify that no hazards exist. Company bears no responsibility or liability for any damage, accidents or injury sustained during or relocation of the product.
11. Arbitration Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause
You agree that any and all controversies, disputes, demands, counts, claims, or causes of action dispute, demand, count, claim, or cause of action) between You and the Company or its successors or assigns, including any disputes as this clause, arbitrability of the disputes, or application of the demand to arbitrate made in any judicial proceeding (collectively “Arbitrability Disputes”) shall exclusively be settled through binding and confidential arbitration. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). Unless otherwise agreed upon by the Parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”). In the case of arbitration and where permitted by law, You are thus agreeing to give up Your right to go to court to assert or defend Your rights. Your rights will be determined by a neutral arbitrator and not a judge or jury. You are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable in court. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court. In the case of arbitration and where permitted by law, You and Company must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR THE COMPANY MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) the arbitrator shall honor claims of privilege and privacy recognized at law; (4) the arbitration shall be confidential, and neither You nor We may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (5) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (6) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing Party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law. Notwithstanding this agreement to arbitrate, either Party may seek emergency equitable relief before the state or federal courts located in Alabama in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Alabama for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate. If any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Alabama.
12. Relationship of the Parties
The parties are independent contractors. This License Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
13. Governing Law and Venue
This License Agreement shall be governed and interpreted by the laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Alabama. Any legal suit, action or proceeding arising out of or related to this License Agreement or the licenses granted hereunder shall be instituted in the federal courts of the United States or the courts of Madison County in the State of Alabama, and each Party hereto irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
For purposes of this License Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this License Agreement as a whole. The Parties intend this License Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The headings in this License Agreement are for reference only and do not affect the interpretation of this License Agreement.
To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this License Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this License Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this License Agreement shall not be affected and will continue in full force and effect.
16. Export Regulations
Company is subject to regulation by the agencies of the U.S. Government, including the U.S. Department of Commerce and State, which prohibit export or diversion of certain technological products to certain countries. Operator shall comply in all respects with all applicable export and re-export restrictions and not permit anyone to use or access the Services in a U.S. embargoed country or in violation of any U.S. export law or regulation. You also agree to indemnify, defend, and hold the Company harmless from any loss, damages, liability, or expenses incurred by the Company as a result of Your failure to comply with any export regulations or restrictions.
17. Force Majeure
In no event will the Company be liable or responsible to You, or be deemed to have defaulted under or breached this License Agreement, for any failure or delay in fulfilling or performing any term of this License Agreement when and to the extent such failure or delay is caused by any circumstances beyond the Company's reasonable control (a "Force Majeure Event"), including service interruptions by third party providers, denial of service attacks, acts of God, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, or national or regional shortage of adequate power or telecommunications systems. The Company may terminate this License Agreement or the Services if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
18. Entire Agreement
Unless otherwise expressly agreed in writing between the Parties, this Agreement, including its exhibits, Additional Terms, and other agreements incorporated by reference herein, contains the entire understanding and agreement between You and the Company concerning the VR Application and Services and supersedes any and all prior or inconsistent understandings relating to the VR Application and Services and Your use thereof. This Agreement cannot be changed orally.
19. Order of Precedence and Waiver
19.2. Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this License Agreement, no failure to exercise or delay in exercising any rights, remedies, powers, or privileges arising from this License Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
All provisions relating to the Company’s proprietary rights, confidentiality, disclaimer of warranties, limitation of liability, indemnification, and any other provisions of the License Agreement expressly stated to survive or which by their nature extend beyond the expiration or termination of this License Agreement shall survive the expiration or termination of this License Agreement.