Terms of service
Monsterful Partners, Inc.
Customer Terms and Conditions
WHEREAS, Monsterful Partners, Inc. is a virtual reality product company creating best-in-class training platforms for the professional and amateur ranks as well as certain software tools and applications.
WHEREAS , the Buyer wishes to purchase one or more Monsterful Products and/or Services, as specified on the applicable Purchase Order. THEREFORE, for good and mutual consideration, the undersigned parties hereby agree as follows:
(a) These customer terms and conditions (these "Terms") govern the sale or lease of the products ("Products") and services ("Services") by Monsterful Partners, Inc. ("Seller", “Monsterful”) to the buyer named on the signature page of the applicable Purchase Order ("Buyer").
(b) The associated purchase order (the "Purchase Order") and these Terms along with all exhibits, annexes and riders hereto (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
(c) Notwithstanding anything to the contrary contained in this Agreement, Seller may, from time to time change
(i) the exhibits hereto and/or
(ii) the Services, in each case without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services set forth in the Purchase Order; however, if Seller changes do materially affect the nature or scope of the Services, set forth in the Purchase Order, Buyer shall have the right to terminate the Agreement by sending thirty (30) days written notice to Seller; provided that such notice is sent within forty-five (45) days of the date Buyer has notice of such changes.
2. Delivery of Products and Performance of Services
(a) The Products will be delivered substantially in accordance with the Purchase Order, subject to availability of finished Products. Seller shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to the delivery point specified in the Purchase Order (the "Delivery Point") and, if applicable and agreed, shall setup the installation in person (“In-Person Setup”) in a manner consistent with the specifications on the Purchase Order. In certain cases, setup and installation information or services may be provided virtually (“Virtual Setup”). Together, In-Person Setup and Virtual Setup may, as applicable, sometimes be referred to as “Setup.”
(c) Seller may, in its sole discretion, without penalty, make partial shipments and Setup of Products to Buyer so long as Seller completes full delivery according to the terms in the Purchase Order. Each shipment and Setup for a Product will constitute a separate sale, and Buyer shall pay Seller as specified in the Purchase Order.
(d) Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Purchase Order, and any such dates shall be estimates only; however, Seller will use commercially reasonable efforts to ensure that each Product/unit will be operational no later than six (6) weeks from the delivery of the Product.
(e) With respect to providing the Setup, Buyer shall (i) cooperate with Seller in all matters relating to the Virtual Setup and training, and, in the event Buyer purchases or –Seller otherwise agrees to provide In-Person Setup and training , Buyer shall provide such access to Buyer's premises and such office accommodation and other facilities as may reasonably be requested by Seller for the purposes of performing the Setup and services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform the Virtual Setup and training, or to the extent applicable the In-Person Setup & training, in accordance with the requirements of this Agreement; (iii) provide such customer materials as Seller may reasonably request to carry out the Virtual Setup and training, or to the extent applicable the In-Person Setup & training, in a timely manner and ensure that such customer materials are complete and accurate in all material respects; and (iv) comply with all applicable laws and third-party rights in relation to the Virtual Setup and training, or to the extent applicable the In-Person Setup & training, before the date on which the Virtual Setup and training or In-Person Setup & training are to start.
(f) Buyer acknowledges the need to be selective in the assignment of coaches/instructors responsible for facilitating on-site operations of the Products, including, if applicable, RibeeVR or Play the Pros. Buyer is responsible for arranging for sufficient training of personnel, as defined herein and in the Purchase Order, and establishing that at least one coach/instructor is on-site providing direct supervision at all times during operation of the Products by minors and for the training/clearance of any non-minor/adult end-users of the Products in NCAA or professional settings to use the Products independently, including, if applicable, RibeeVR or Play the Pros. Buyer also agrees that all coaches/instructors will require full and complete end-user registration and execute the SELLER SUPPLIED WAIVER / END-USER DOCUMENTATION (as defined in Section 4 below) prior to providing guidance and instruction to end-users, provide guidance and instruction to end-users, ensure the safety of all participants, and adhere to the rules of play embedded in the SELLER SUPPLIED WAIVER / END-USER DOCUMENTATION. Additionally, Buyer agrees that it will obtain Parental or Guardian consent for each minor child (only those seven years of age or older qualify to participate) using Products, including RibeeVR or Play the Pros, by having the parent or guardian, as applicable, execute the SELLER SUPPLIED WAIVER / END-USER DOCUMENTATION.
(g) In the event a repair or other modification to the Products is needed, Buyer shall notify Seller in accordance with the terms herein and follow any warranty requirements as described herein and shall exclusively use a Seller-approved and trained technician. Buyer’s use of any person other than a Seller-approved and trained technician to conduct repairs shall constitute a material breach of these Terms. Seller’s tech support team can be reached at firstname.lastname@example.org between the hours of 9:00 AM and 9:00 PM Eastern Time.
3. Content and Software License
(a) Except as otherwise agreed upon, Seller shall enable the use of software, content, virtual items and other materials or technology owned or licensed by Seller as specified herein (“Software and Content”), and hereby grants Buyer a limited, non-exclusive, non-transferable and non-assignable non-sublicensable license to access, install, and use the Software and Content with the hardware supplied by Seller in its facility with its end-users that have registered with Seller via the registration process described in Section 4, as specified in these Terms and the Purchase Order. Buyer will not use, copy, adapt, modify, decompile, reverse engineer, disassemble, decrypt, attempt to derive the source code of, prepare derivative works based upon, distribute, license, sell, rent, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Software and Content, except as otherwise expressly permitted by Seller in these Terms and the Purchase Order or as permitted under applicable law. Any unauthorized use of the Software and Content is strictly prohibited and will terminate the license granted in these Terms. No licenses or rights are granted to Buyer by implication or otherwise, except for the licenses and rights expressly granted to Buyer.
(b) Unless otherwise indicated, the Software and Content are the property of Seller or its licensors and are protected by copyright, trademark and other laws of the United States and foreign countries. Buyer will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software and Content. Buyer acknowledges that Monsterful Partners, Inc., Monsterful, RibeeVR, and Play the Pros (the "Monsterful Marks") are trademarks or registered trademarks of Monsterful Partners, Inc. The Monsterful Marks, including any other marks listed in the Purchase Order, and those of its affiliates may not be copied, imitated or used by Buyer, in whole or in part, without prior written permission of Seller, including as authorized by any applicable brand guidelines. All other trademarks, service marks, logos, trade names and any other proprietary designations are the property of their respective owners and may not be used without permission of the applicable trademark/property holder.
(c) Subject to the terms and conditions of this Agreement, Buyer hereby grants Seller and its development affiliates, employees and contractors, a limited, non-exclusive, non-transferable and non-assignable and non-sublicensable license during the term of this Agreement (and thereafter until such time as the following rights are revoked in writing by the Buyer) solely to:
(a) use, reproduce and display the Buyer Content and Buyer Marks in the Products delivered to Buyer for purposes of developing and delivering the Products and Services to Buyer;
(b) demonstrate, market and distribute the Buyer Content and Buyer Marks to end-users solely as incorporated in or bundled with the Products or Services delivered to Buyer;
(c) use the Buyer Content internally for developing, testing, servicing and supporting the Products and Services,
(d) use the Buyer Marks and/or Buyer Content for any promotional purposes specified in the Purchase Order and on Seller’s client list, and
(e) reproduce the Buyer Content and Buyer Marks in the form and to the extent necessary for each of the purposes set forth in (a) through (d) (each of the foregoing items, (a) through (e) along with the purposes set forth in the Purchase Order or otherwise agreed, a "Permitted Purpose"). Except for the Permitted Purpose described herein and in the Purchase Order, Seller shall have no other rights hereunder with respect to the Buyer Content and Buyer Marks. (d) Seller agrees that it will use the Buyer Marks in accordance with Buyer’s trademark usage guidelines should they be provided by Buyer to Seller from time to time. (e) Seller agrees, upon the reasonable request of Buyer, to provide for Buyer’s inspection samples of goods and/or access to Seller’s services provided in connection with the Buyer’s Marks. In the event Buyer has a good faith, reasonable belief that Seller’s goods and/or services associated with the Buyer Marks do not meet the applicable Buyer quality standards, Buyer will notify Seller and the parties will work in good faith to remedy any deficiency. (f) For purposes of this Section 3, “Buyer Content” shall include the following: home team or facility colors, individual likenesses, away team colors, individual likenesses and any other content or intellectual property which is specifically described as being provided by Buyer in the Purchase Order. (g) For purposes of this Section 3, “Buyer Marks” shall include the following: home team or facility trademarks, service marks, logos, symbols or other indicia of source, away team trademarks, service marks, logos, symbols or other indicia of source, and any other trademarks, service marks, logos, symbols or other indicia of source which is specifically described in the Purchase Order. (h) Each party’s rights with respect to any end-user data is described in Section 20 of the Agreement.
4. Safety Warnings and Disclaimers
(c) SUCH WARNING AND INSTRUCTIONS MAY BE UPDATED FROM TIME TO TIME AND PROVIDED TO BUYER AND BUYER WILL PROVIDE THESE UPDATES TO NEW END-USERS.
(d) EXCEPT AS OTHERWISE PROVIDED IN SECTIONS 13 AND 14, BUYER ACKNOWLEDGES AS FOLLOWS:
BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ACCESS TO AND USE OF THE PRODUCTS IS AT ITS SOLE RISK AND LIABILITY. AS BETWEEN BUYER AND SELLER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND SELLER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, SELLER DOES NOT REPRESENT OR WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE PRODUCTS WILL BE ACCURATE OR MEET BUYER’S REQUIREMENTS; (B) THE OPERATION OF THE PRODUCTS WILL BE SECURE, UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE, OR (C) ANY DEFECTS IN THE PRODUCTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, GUIDELINES OR ADVICE GIVEN BY SELLER WILL CREATE A WARRANTY. THE FOREGOING DISCLAIMER OF WARRANTIES WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LAWS OF SOME STATES OR JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.
a. Each party agrees to provide the other party (upon request) with evidence of insurance as called for below and shall secure, pay for and maintain all of the insurance policies required and in the amounts as set forth below. Buyer shall not be permitted to commence Product usage, including, if applicable, RibeeVR or Play the Pros access for end – users, until Certificates of Insurance confirming that the required insurance has been obtained naming Seller as an additional insured have been delivered to Seller.
i. Workers’ compensation insurance (covering coaches/instructors) operating Products, including, if applicable, RibeeVR or Play the Pros, as required by the laws of the State of operation, with statutory limits, and employers’ liability insurance with limits of $100,000 per accident, $100,000 per employee for disease, and a $500,000 disease aggregate.
ii. Commercial general liability insurance with limits of at least $5,000,000 per occurrence. Such insurance shall include the following: premises and operations, actions of independent contractors, contractual liability including protection from claims arising out of liability from operations or actions of Buyer and/or his agents, employees; personal injury liability and products and completed operations liability. Any aggregate limit shall apply on a per location basis.
iii. The General Liability policy of Buyer set forth in this Schedule shall name Monsterful Partners, Inc. as an additional insured.
Buyer agrees to defend, indemnify and hold harmless Seller and its affiliates, independent contractors and service providers, and each of its respective directors, officers, employees and agents (collectively, “Indemnified Parties”) from and against all third-party claims, damages, costs, liabilities and expenses, including, but not limited to, reasonable attorneys’ fees (collectively, “Claims”), to the extent such Claims are:
(i) brought by an end-user of Buyer of the Products or Services related to product liability of the Product and Services;
(ii) brought by a third party and caused by, arising out of or related to Buyer’s negligence or unauthorized conduct;
(iii) brought by a third-party for any content or engagement created by end-user hereunder and posted to social media or in any public forum;
(iv) brought by an end-user for any end-user’s use of, inability to use or inability to safely operate, the Products and Services;
(v) brought by a third party for Buyer’s (or Buyer’s Content or Buyer’s Marks) violation of any applicable law or any rights of any third party, including
intellectual property rights and rights of publicity; or
(vi) brought by a third party for or in connection with Buyer’s breach of these Terms, the Agreement, or any other applicable terms, policies, warnings or instructions provided by Seller or a third party in relation to the Products or Services.
7. Title and Risk of Loss
Risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. Should payment be made in full by the completion of delivery, then no further financial terms need be resolved. However, should the final payment be delayed following delivery of the Products, as collateral security for the full payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code. All right, title, and interest in, to and under the Products will not pass from Monsterful to Buyer until such time as the entire purchase price, shipping fees and sales taxes have been paid in full.
8. Buyer's Acts or Omissions
If Seller's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
9. Price; Late Fees
(a) Buyer shall purchase or lease the Products and Services from Seller at the prices (the "Prices") set forth on the Purchase Order.
(b) All prices are exclusive of shipping/freight charges to the delivery point as well as all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personal or real property, or other assets.
(c) In the event Buyer fails to pay any amounts due under the Purchase Order and these Terms by the respective due date, Buyer shall be immediately in default of these Terms and late payment interest at a rate equal to 1.50% per month on Buyer’s total amount due and payable shall be assessed upon each passage of thirty (30) days from such due date. In the event Buyer fails to make payment of any amount due for ninety (90) days from such amount’s respective due date, the entire amount due under the Purchase Order shall (without limiting Seller’s other rights and remedies) immediately accelerate and become due and owing immediately to Seller. In the event of any default under these Terms, Seller shall be permitted to immediately terminate these Terms and the Purchase Order, and Buyer shall immediately return all Products and Services to Seller at Buyer’s sole cost.
10. Payment Terms
(a) Buyer shall pay all invoiced amounts due to Seller in accordance with the terms on the Purchase Order (or within thirty (30) days of receipt of Seller’s invoice if payment terms are not specified on the Purchase Order).
(b) Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products or performance of any Services if Buyer fails to pay any amounts when due hereunder and such failure continues for 30 days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
11. Revenue Share
(a) It is the intention of both parties that each party shall have the right to request that certain commercial advertisements be integrated into the Products as part of the end-user experience. Within reason, it is at the discretion of the Buyer where final advertisement placement will occur. The parties agree that certain revenues derived from such commercial sponsorships be shared between them as set forth on the Purchase Order.
12. Software Support Services
(a) After the delivery date specified on the Purchase Order (“Delivery Date”), Seller shall provide Buyer with reasonable remote technical support services by telephone and e-mail, without charge (the “Software Support Services”). For the avoidance of doubt, the complimentary Software Support Services do not cover any hardware or any damage caused by the users, or entitle buyer to remediation (financial or otherwise) for damage caused by accidents or unauthorized modifications to the Product or any software. In the event a Seller-approved technician is required to travel to the Buyer’s location to repair and/or replace a defect, Buyer shall pay Seller $795 per day, plus the cost of travel, lodging, and meals.
(b) NOTWITHSTANDING THE FOREGOING, SELLER SHALL NOT BE LIABLE FOR DEFECTS IN ANY SOFTWARE AND SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SOFTWARE, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(c) The complimentary Software Support Services shall not cover damages or failures caused by improper usage, failure to comply with operating instructions (including operation in inappropriate conditions (which includes usage outdoors), unapproved repairs or modifications (including unauthorized modifications to software or operating system), viruses or other malicious code, accidents, acts of God, acts of nature, negligence, liquid immersion, or improper ventilation. The complimentary Software Support Services also do not cover development of custom code or product software features. Seller reserves the right to charge for any support services not covered by the complimentary Software Support Services, including for redeployment of code, and/or changes that may be needed
to upgrade, enhance, or modify software that has been customized for a Buyer.
13. Custom Hardware Unit; Limited Custom Hardware Warranty
(a) Seller warrants to Buyer that for a period of twelve (12) months from the Delivery Date, Seller’s RibeeVR or Play the Pros custom unit, specifically excluding Third Party Hardware (the “Custom Hardware Unit”), will materially conform to the specifications set forth in the Purchase Order and will be free from material defects (the “Custom Hardware Warranty”).
(b) In the event of a defect in the Custom Hardware Unit, Buyer shall report such defect to Seller and the Buyer shall bear the costs of repair or replacement, unless it occurs during the Custom Hardware Warranty period, in which case Seller agrees (in its sole discretion) shall either refund, credit, or otherwise repair such defect, provided that: (i) Buyer gives written notice of the defective Custom Hardware Unit, as the case may be, reasonably described, to Seller within three (3) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Buyer presents a photo and video of the defect along with a written explanation of such defect; (iii) if applicable, Seller is given a reasonable opportunity after receiving the notice of the defect in order to examine such Custom Hardware Unit (if requested to do so by Seller) returns such Custom Hardware Unit to Seller’s place of business at Seller's cost for the examination to take place there; and (iv) Seller reasonably verifies Buyer's claim that the Custom Hardware Unit is defective and that such defect is not due to damage caused by accidents or unauthorized modifications.
(c) Custom Hardware Warranty claims shall be automatically null and void in the event that: (i) Buyer tampers with or otherwise obscures or removes any information related to warranties, model numbers, serial numbers, or part numbers; (ii) Buyer causes any defects through improper usage, failure to comply with operating instructions, inappropriate operating conditions (which includes usage outdoors), unapproved repairs or modifications, accidents, acts of God, acts of nature, negligence, liquid immersion, or improper ventilation; or (iii) Buyer makes any further use of such Custom Hardware Unit after giving such notice.
(d) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 13
(i), SELLER SHALL NOT BE LIABLE FOR DEFECTS IN ANY CUSTOM HARDWARE UNIT AND SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE CUSTOM HARDWARE UNIT, INCLUDING ANY WARRANTY OF MERCHANTABILITY;
(ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR
(iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
14. Third Party Hardware; Limited Third Party Hardware Warranty
(a) Seller’s Products and Services contain hardware provided by third parties (“Third Party Hardware”). Seller warrants to Buyer that for the period set forth below, the Third Party Hardware will materially conform to the specifications set forth in the Purchase Order and will be free from material defects (the “Third Party Hardware Warranty”). Such Third
Party Hardware shall be subject to the following limited Third Party Hardware Warranty periods provided that any defect is not due to damage caused by Buyer accidents or unauthorized modifications:
(i) Gaming Computer: one year from the Delivery Date;
(ii) Stats Computer: one year from the Delivery Date;
(iii) HTC Vive Bundle: one year from the Delivery Date;
(iv) Monitor: one year from the Delivery Date; (v) Tablet: one year from the Delivery Date.
(b) In the event of a defect in Third Party Hardware, Buyer shall report such defect to Seller and the Buyer shall bear the costs of repair or replacement, unless it occurs during the applicable Third Party Hardware Warranty period and the applicable third-party vendor agrees to refund, credit, or otherwise repair such defect, which shall not occur unless:
(i) Buyer gives written notice of the defective Third Party Hardware, as the case may be, reasonably described, to Seller within three (3) days of the time when Buyer discovers or ought to have discovered the defect;
(ii) Buyer presents a photo and video of the defect along with a written explanation of such defect;
(iii) if applicable, Seller is given a reasonable opportunity after receiving the notice of the defect in order to examine such Third Party Hardware and Buyer (if requested to do so by Seller) returns such Third Party Hardware to Seller’s place of business at Seller's cost for the examination to take place there; and
(iv) after Seller consults with the applicable third-party vendor, such third-party vendor reasonably verifies Buyer's claim that the Third Party Hardware is defective and approves a refund, credit, or repair, which shall be decided in such third-party vendor’s sole discretion.
(c) Custom Hardware Warranty claims shall be automatically null and void in the event that:
(i) Buyer tampers with or otherwise obscures or removes any information related to warranties, model numbers, serial numbers, or part numbers;
(ii) Buyer causes any defects through improper usage, failure to comply with operating instructions, inappropriate operating conditions (which includes usage outdoors), unapproved repairs or modifications, accidents, acts of God, acts of nature, negligence, liquid immersion, or improper ventilation; or
(iii) Buyer makes any further use of such Third Party Hardware after giving such notice.
(d) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 14(a), SELLER SHALL NOT BE LIABLE FOR DEFECTS IN ANY THIRD PARTY HARDWARE AND SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY HARDWARE, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY
AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
THE REMEDIES SET FORTH IN SECTIONS 13 AND 14, SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTIES IN SECTIONS 13 OR 14.
16. Limitation of Liability
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID OR PAYABLE TO SELLER FOR THE PRODUCTS AND SERVICES SOLD HEREUNDER, OR IF NONE, $100.
17. Compliance with Law
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Buyer's receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part and such failure continues for 30 days after written notice thereof; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
In addition to any remedies that may be provided under these Terms (including the right to terminate pursuant to Section 1(c) above in the event of changes to the Agreement that materially affect the nature or scope of the Services), Buyer may terminate this Agreement with immediate effect upon written notice to Seller, if Seller: (a) has not performed or complied with any of these Terms, in whole or in part and such failure continues for 30 days after written notice thereof; or (b) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
20. Confidential Information and Data
All non-public, confidential or proprietary information of Seller, including but not limited to, software, code, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
With regard to any data collected on end-users, the following shall also apply: Notwithstanding anything to the contrary in this Agreement, Seller acknowledges and agrees that, as between the parties, Buyer is the sole and exclusive owner of all right, title and interest in and to any pre-existing end-user data Buyer may possess and the data that it collects from its end-users unrelated to the Registration Application described below (“Buyer User Data”), including, where applicable, any and all intellectual property or proprietary rights inherent in, or appurtenant to, any of the foregoing or any portion thereof. For the avoidance of doubt, Buyer User Data shall be used by Seller only as expressly authorized hereunder or otherwise authorized by Buyer, it being understood that Buyer hereby authorizes Seller and its partners, contractors and representatives to use the Buyer User Data (i) as necessary to perform the Services and (ii) to market and promote the Products and Services in any manner permitted by law.
Notwithstanding anything to the contrary in this Agreement, Buyer acknowledges and agrees that, as between the parties, Seller is the sole and exclusive owner of all the right, title and interest in and to (i) any data populated on a Seller identified paper registration application, digital registration application, or any other method established in order for users of the Product to establish an account and complete requested profile information (“Registration Application”) via the Registration Process or other process made available by Seller and submitted to Seller by an end-user, (ii) any data about an end-user’s use of the Products and Services (iii) any data collected by Seller from end users or potential customers from any marketing and promotional efforts, including responses to any emails sent by or on behalf of Seller, and any (iv) Seller Confidential Information relating to end users and potential end users (collectively “Seller User Data”), including, where applicable, any and all intellectual property or proprietary rights inherent in, or appurtenant to, any of the foregoing or any portion thereof.
Buyer acknowledges and agrees that Seller may use the Seller User Data in any manner permitted under applicable law. Seller may also choose to create anonymized, de-identified, and/or aggregated data from the Buyer User Data that, in any case, does not identify, on its face or by logical implication, Buyer or any individual natural person that is an end-user associated with Buyer (the “Aggregated Data”). Such Aggregated Data shall be deemed part of the Seller User Data hereunder.
Buyer and Seller each acknowledge and agree that, while the Buyer has the rights to Buyer User Data and the Seller has rights to the Seller User Data as specified herein, each potential user of the Products and Services might be a customer of Buyer and a customer of Seller via various contact points, portals or events and therefore, Buyer and Seller each have the right to collect and separately own any information that is collected by it about such person at such contact points or portals or events even if it is identical to personal information about such end-user collected by the other party.
21. Force Majeure
The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, cyber attack, malicious code or other malicious acts of a third party.
Neither party shall assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party, which shall not be unreasonably withheld. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
23. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever, excluding the terms related to the exclusivity detailed in section 24.
The exclusivity period shall begin from the date hereof until the end of the Term of this Agreement. During the exclusivity period, Buyer shall not solicit, negotiate, or enter into any other agreement with any person or company for a purchase or acquisition of virtual reality, augmented reality and/or mixed reality technology.
25. No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
26. Governing Law
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. Subject to and without limiting the obligation to arbitrate disputes as set forth below. any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
27. Submission to Arbitration
Each party hereby waives its right to trial by jury and agrees that any controversy between the parties hereto involving any claim arising out of or related to this Agreement shall be submitted to and be settled by confidential, final and binding arbitration in New York County before one arbitrator in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. The requirement to arbitrate shall not apply to claims purely for injunctive relief.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by e-mail, personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Safety Warnings and Disclaimers, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
31. Amendment and Modification
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.