This Agreement is entered into as of the earliest of the date that Customer accepts the terms and conditions herein, or the date on which Customer activates or uses the software.
- OperaVR Services and Products. “OperaVR Services” means the services made available by access to and use of software hosted by Operability, LLC to which Customer has purchased a license under this Agreement to the OperaVR Services and any proprietary application software programs made available by OperaVR for download by Customer for use in connection with any OperaVR Services, including any Documentation and Updates. “Documentation” means the written and/or electronic release notes, implementation guides, or other published technical documentation about the applicable OperaVR Services that is provided by OperaVR to Customer together with access to the OperaVR Services. “Updates” means any correction, update, upgrade, patch, or other modification or addition made by OperaVR. “OperaVR Products” means the viewer headset and the various viewing topical content which are separately offered for purchase without a subscription as described herein and on the OperaVR website.
- Rights of Access and Use. Subject to the terms and conditions of this Agreement, during the applicable License Term, OperaVR hereby grants to Customer (i) a non-exclusive, non-transferable and non-sublicensable license for Customer to access and use the OperaVR Services/OperaVR Products, and install the application software, in each case, solely for Customer’s internal use with Customer’s ordinary business operations and in accordance with the applicable Documentation. Customer may provide access to the OperaVR Services/OperaVR Products to its employees, patients, clients, and other individual users to access and use the OperaVR Services on its behalf and for its internal business purposes in compliance with this Agreement, provided Customer is responsible for all such users’ actions that violate the terms of this Agreement, any breach by any such user is a breach by Customer. Customer agrees that its purchase of the OperaVR Services/OperaVR Products are neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by OperaVR with respect to future functionality or features.
- Use Restrictions; Customer Obligations. As a condition of the license granted in Section 2, Customer shall not itself and shall not authorize or permit any third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the OperaVR; (b) modify, adapt, or create any derivative works based on the OperaVR Services/OperaVR Products; (c) distribute, sell, license, lease, transfer, or otherwise provide any OperaVR Services/OperaVR Products to third parties except as expressly provided in this Agreement; (d) provide the OperaVR Services as a service to unaffiliated third parties, including but not limited to on a service bureau, SaaS, or time-sharing basis; (e) unbundle any component of any OperaVR Services; or (f) use the Documentation except for supporting Customer’s authorized use of the OperaVR Services; or (g) employ or authorize a OperaVR Competitor to use or view the OperaVR Services or Documentation, without the prior written consent of OperaVR.
- Payment; Additional Licenses; Reporting.
- Fee Schedule. OperaVR Services are offered on either an Annual Subscription or on a Monthly Subscription basis. Customer agrees to pay the set-up and all Subscription Fees for the OperaVR Services as set forth on the current Fee Schedule as described on the website, which is subject to change with a 30-day notice. OperaVR Products are separately offered on a purchase only basis without a subscription that does not include upgrades, or additional services/content, as set forth on the current Fee Schedule on the website.
- Annual Subscription. The Annual Subscription includes 12 months access to the OperaVR website, application, and software upgrades.
- Monthly Subscription. The Monthly Subscription includes a 30-day access to the OperaVR website.
- Customer Acknowledgement. Customer acknowledges that OperaVR’s delivery and support infrastructure may enable OperaVR to access the device or user account for the OperaVR Services.
- Return & Refund Policy. If you are not 100% satisfied with your purchase of OperaVR, you can return the headsets for up to 30-days from the date of purchase and receive a full refund less a 20% restocking fee. Any headset you return must be in the same condition you received it and in the original packaging.
- Applicable Sales Taxes. The Subscription Fee does not include the applicable state’s sales taxes on the subscription agreement or on the purchase or lease of OperaVR Products, respectively, which will be invoiced separately and subject to change from time to time.
- Definition. “Confidential Information” means non-public information provided by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or reasonably should be considered as such, excluding information that (i) is or becomes public through no fault of the Recipient, (ii) was known to Recipient before the disclosure, (iii) is disclosed to Recipient by a third party without violation of any confidentiality restrictions, or (iv) is independently developed by the Recipient without access to or use of the Discloser’s information. OperaVR Confidential Information includes but is not limited to all OperaVR Services (and any derivatives, performance data, and any other technical information relating to the OperaVR Services).
- Non-disclosure and Non-Use. The Recipient shall (i) only use the Confidential Information of the Discloser to exercise its rights and/or to perform under this Agreement, (ii) use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as it does for its own confidential information, but in no event less than reasonable care, and (iii) with respect to employees, contractors, or agents of Recipient, limit access to the Discloser’s Confidential Information only to those employees, contractors, or agents who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified in this Section 5. The Recipient may disclose the Discloser’s Confidential Information to the extent required by any court, governmental body, or law or regulation; Recipient shall provide prompt written notice to the Discloser of such disclosure. Upon written request of the Discloser, the Recipient shall return or destroy, at Discloser’s option, the Discloser’s Confidential.
- Ownership. OperaVR owns and retains all right, title, and (except as expressly licensed in this Agreement) interest in and to the OperaVR Services and its derivative works, including all video and audio content associated with OperaVR Services. Customer is not obligated to provide OperaVR with any suggestions or feedback about the products or services (“Feedback”). To the extent Customer does provide Feedback to OperaVR, Customer assigns ownership of such Feedback to OperaVR and OperaVR may use and modify such Feedback without any restriction or payment. Customer is prohibited from downloading any OperaVR video and audio content without the written permission of OperaVR.
- Indemnification by OperaVR. OperaVR shall at its cost and expense (i) defend or settle any claim brought against Customer and its directors, officers and employees (“Customer Indemnitee(s)”) by an unaffiliated third party alleging that Customer’s use of the OperaVR Services infringes or violates that third party’s intellectual property right(s), and (ii) pay, indemnify and hold Customer Indemnitees harmless from any settlement of such claim or any damages finally awarded to such third party by a court of competent jurisdiction as a result of such claim.
- Remedies. If a claim under Section 7.a occurs or in OperaVR’s opinion is reasonably likely to occur, OperaVR may at its expense and sole discretion: (i) procure the right to allow Customer to continue using the applicable OperaVR Services, (ii) modify or replace the applicable OperaVR Services to become non-infringing, or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license to the affected portion of applicable OperaVR Services and refund a portion of the pre-paid, unused license fees paid by Customer corresponding to such OperaVR Services.
- Exclusions. OperaVR shall have no obligations under this Section 7 if the claim is based upon or arises out of: (i) any modification to the applicable OperaVR Services not made by or at the direction of OperaVR, (ii) any combination or use of the applicable OperaVR Services with any third party equipment, products or systems, to the extent that such claim is based on such combination or use, (iii) Customer’s continued use of the allegedly infringing technology after being notified of the infringement claim, (iv) Customer’s failure to use Updates made available by OperaVR, (v) Customer’s failure to use the OperaVR Services in accordance with the applicable Documentation, and/or (vi) use of the OperaVR Services outside the scope of the license granted under this Agreement. This Section 7 constitutes Customer’s sole and exclusive remedies, and OperaVR’s entire liability, with respect to infringement of third party intellectual property rights.
- OperaVR Viewing Device. OperaVR Services shall include one or more OperaVR viewing devices (“headsets”), which the Customer may have the option to purchase or lease the headsets from OperaVR, as it may be offered from time to time.
- OperaVR Services and Products. OperaVR represents and warrants to Customer that the OperaVR Services materially conforms to the specifications specified in the relevant Documentation. Customer must notify OperaVR of any warranty deficiencies within thirty (30) days from the provision of the deficient OperaVR Services. Customer’s sole and exclusive remedy and the entire liability of OperaVR for OperaVR’s breach of this warranty will be for OperaVR to cure such defect in the OperaVR Services.
- Exclusions. The express warranties do not apply if the applicable OperaVR Services or OperaVR Products (i) has been modified, except by or at the direction of OperaVR, (ii) has not been installed, used, or maintained in accordance with this Agreement and Documentation, (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence or accident, and/or (iv) is used with equipment, products or systems not specified in the Documentation. Additionally, these warranties only apply if notice of a warranty claim is provided within the applicable warranty period.
- Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS SECTION 9, THE OPERAVR SERVICES, , AND OPERAVR PRODUCTS ARE PROVIDED “AS IS,” AND OPERAVR PROVIDES NO OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND OPERAVR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
- Term and Termination. The access rights granted herein with respect to the OperaVR Services shall remain effective until the License Term for the OperaVR Services expires or the license for the OperaVR Services is terminated. This Agreement shall remain effective until the earliest of termination in accordance with this Section 10, or expiration of the applicable License Term. If OperaVR agrees to reinstate a lapsed subscription license, then the terms of this Agreement shall apply. Either party may terminate this Agreement: (a) upon thirty (30) days written notice of a material breach by the other party (or three (3) business days in the case of a failure to pay), unless the breach is cured within the notice period, or (b) immediately, if the other party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. In addition, the parties may terminate this Agreement by mutual written consent. All other licenses terminate upon expiration or termination of this Agreement. In addition, Sections 1, 3-7, and 9-12, and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason.
- Limitation of Liabilities. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACHES OF OR FOR LIABILITY ARISING OUT OF SECTION 3 (RESTRICTIONS), 5 (CONFIDENTIALITY) OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR: (a) ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE, OR (b) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAYABLE TO OPERAVR FOR THE RELEVANT OPERAVR SERVICES, HARDWARE, OR SERVICE DURING THE TWELVE-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11.
- Governing Law and Jurisdiction. Except as otherwise provided in Schedule A (if applicable), this Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of Minnesota, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in Minneapolis, Minnesota The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply.
- Assignment. Neither party may assign this Agreement without prior written consent of the other party, provided however either party may do so to a successor-in-interest pursuant to a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section 12.b shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
- Data Communications. OperaVR shall only collect, access, use, store, safeguard, disclose and transfer (“Process”) Personal Information (i) for the purposes of this Agreement, including without limitation, to implement and deliver the OperaVR Services and its features and associated services, provide Customer support, and help Customer prevent or address service or technical problems, (ii) as otherwise expressly permitted by Customer in writing, or (iii) as compelled by law. Customer shall make such disclosures, obtain such consents, and provide such access, choices and other applicable rights to individual users with regard to the Processing of Personal Information as are required under applicable law, rules or regulations. “Personal Information” means any information relating to an identified or identifiable individual user that is obtained by or communicated to OperaVR by Customer in performance by OperaVR of its obligations under this Agreement. OperaVR collects, analyzes, and uses aggregated, de-identified technical data and related information (such as product or feature usage, device metrics/metadata and/or mobile application usage) to facilitate market research, product development/improvement and to provide support and maintenance services. OperaVR may use, store, or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual.
- Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting OperaVR’s intellectual property rights in the OperaVR Services or either party’s Confidential Information may cause irreparable injury to such party for which monetary damages would be an inadequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have under this Agreement or at law.
- Publicity. OperaVR may publicly disclose that Customer is a customer of OperaVR and a licensee of the OperaVR Services, including in a list of OperaVR customers and other promotional materials.
If you reside in California, you are entitled to request, once per year, disclosure regarding how we share your personal information with third parties for their own direct marketing purposes. California Civil Code Section § 1798.83 permits users of our website that are California residents to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes. To make such a request, please send a written request to us at the address listed below. Please indicate in your request that you are a California resident making a “Shine the Light” inquiry
- Independent Entities. The parties hereto are independent entities. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
- Waiver & Severability; Amendments. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
- Notices. Except as otherwise provided in this Agreement, all legal notices to Customer will be given in writing to any Customer address listed on the applicable registration. All legal notices to OperaVR will be given in writing to: OperaVR, Inc., 109 Bushaway Road, Suite 100, Wayzata, MN 55391, Attention: President. Such notices will be effective (a) when personally delivered, (b) on the reported delivery date if sent by a recognized international or overnight courier or by fax, or (c) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with OperaVR and Customer’s standard procedures.
- Entire Agreement. This Agreement consists of these terms and conditions, and the related schedule(s), which are incorporated by reference. This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes and cancels all prior agreements, representations, communications, and understandings of the parties, written or oral, relating to such subject matter, and is not intended to confer upon any person other than the signatories below any rights or remedies. This Agreement prevails over any conflicting, or additional terms of any ordering document, acknowledgment, confirmation or other document issued by Customer before or after the execution of this Agreement unless such conflicting or additional terms have been introduced via an amendment and accepted in writing by both parties. The headings of sections of this Agreement are for convenience and are not for use in interpreting this Agreement.
Revised December 18, 2019