PixoVR, CORP. TERMS OF SERVICE
These PIXOVR, CORP. TERMS OF SERVICE (“Terms of Service”) including the PixoVR Order Form (“Order Form”) to which these Terms of Service are attached constitute an agreement (“Agreement”) entered into on the date of the Order Form (“Effective Date”) by and between PixoVR, CORP., a Delaware corporation with its headquarters at 124 E. Hudson Avenue, Suite 103, Royal Oak, Michigan 48067 (“PixoVR”), and the entity named as “Customer” on the Order Form. The Order Form is incorporated into, and is made an integral part of, these Terms of Service. PixoVR and Customer (as defined herein) are each a “Party” and collectively are the “Parties.”
WHEREAS, PixoVR owns a three-dimensional virtual reality platform including related Intellectual Property as defined herein (the “System”) that it makes available to customers for permissive use by subscription on a software-as-a-service basis); and
WHEREAS, Customer wishes to have access to and use the System for the sole purpose of enabling access to Customer’s designated Users (the “Purpose”), and PixoVR wishes to provide Customer with access to and use of the System solely for such Purpose, based on one or more Order(s) (as defined herein) to be placed by Customer subject to acceptance by PixoVR, pursuant to the terms set forth herein;
NOW, THEREFORE, in consideration of the terms and conditions set forth herein, the Parties do hereby agree as follows:
OVERVIEW AND ACCEPTANCE
1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1 “AUP” means PixoVR’s acceptable use policy available through Customer’s dashboard as may be amended from time to time by PixoVR with notice to Customer.
1.2 “Customer Content” means non-public information provided by Customer to PixoVR to enable the provision of the Services. Customer Content includes information in electronic form input or collected through the System by Customer, including without limitation by Customer’s Users.
1.3 “Documentation” means PixoVR’s standard manuals and instructions related to use of the System, as well as other PixoVR documents (whether hard or soft copy) that Customer will obtain or have access to during the Term.
1.4 “Order” means an order for Services made by Customer on the Order Form attached hereto, together with any subsequent Order Form made by Customer. An Order becomes a firm commitment by each Party when it has been accepted in writing by PixoVR.
1.6 “Fees” means Implementation Fees and Subscription Fees stated on each Order.
1.7 “Services” means paid access to the System, and any other services to be provided by PixoVR for Customer, including Implementation Services, if any, as specifically described in each respective Order.
1.7.1 “Implementation Services”, if any, are described in an applicable SOW and are provided by PixoVR to Customer pursuant to this Agreement (including each Order placed hereunder). As part of Implementation Services, PixoVR will provide Customer with permissive access to the System during the Term to enable the application described in an Order to operate on the System. Implementation Services may comprise: (1) PixoVR “System Software”, as defined herein; (2) art assets; and (3) learning objective or story. As between PixoVR and Customer: (i) PixoVR exclusively owns, and will continue to own, the System Software; (ii) Art assets that are part of PixoVR’s System are, and shall remain, under PixoVR’s ownership. (iii) If PixoVR is specifically directed by Customer to use Customer-proprietary art assets, or to integrate a Customer-proprietary process to run on top of the System Software, such specific proprietary art, and process, constitute Customer Content.
1.8 “Subscription” means subscriptions to access and use the System for a designated period of time for which Subscription Fees are fully prepaid (the “Subscription Term”, defined herein). Each Subscription terminates at the end of the Subscription Term (except as otherwise provided herein). There shall be no refund of Subscription Fees (except where required by law).
1.9 “System” means all elements of architecture, design, implementation and delivery including System Software, websites including www.pixovr.com and www.dashboard.pixovr.com, tools, and modules enabling PixoVR to create, enhance, maintain, operate and make available to customers PixoVR’s proprietary virtual reality platform, comprising, as well, all intellectual property related thereto.
1.10 “System Software” means any software, documentation or data related to the System including, without limitation, modules, libraries, architecture and frameworks, and related intellectual property, including all improvements, enhancements or modifications made thereto, whether made before, during or after the Term, including in connection with Implementation Services or Support Services.
1.11 “SLA” means PixoVR’s standard service level agreement, as made available at www.PixoVR.com as may be modified from time to time by PixoVR at PixoVR’s sole discretion.
1.12 “Term” is defined in Section10 below. “Subscription Term” is the period stated on each respective Order.
1.13 “User” means any person who is permitted by PixoVR to use the System through Customer’s, or any Affiliate Reseller’s, account or passwords and for whom Subscriptions have been ordered, and who have been supplied user identifications and passwords by Customer or Affiliate Reseller. Users may include Customer’s or Affiliate Reseller’s employees, consultants, contractors.
2. THE SYSTEM.
2.1 Permissive Use by Customer. During the Term, Customer, including Customer’s designated User(s) described in each Order, may access and use the System pursuant to the terms of any outstanding Order, including such features and functions as the Order requires, solely pursuant to PixoVR’s policies as such policies may be updated from time to time with notice to Customer. With respect to any System Software required by Customer to use Implementation Services on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable license to use such System Software solely during the Term and only in connection with the Services.
2.2 PixoVR Retention of Rights. PixoVR retains all right, title, and interest in and to the System, including without limitation the Software Framework, all software used to create, provide or maintain the System and all logos and trademarks reproduced through the System. Customer’s use of the System does not grant Customer any intellectual property rights in the System or any of its components. PixoVR shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to of the foregoing.
2.3 Service Levels. PixoVR shall provide the remedies listed in the SLA for any failure of the System listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the System, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeited upon termination of this Agreement. PixoVR is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
2.4 Documentation and License: Customer may reproduce and use the Documentation solely as necessary to support its and Users’ use of the System. Solely to the extent necessary to enable Customer and Users to use the System pursuant to this Agreement, PixoVR hereby grants a non-exclusive, revocable, non-transferable limited license to use and reproduce Documentation during the Term.
2.5 System Revisions. PixoVR may revise System features and functions, the AUP or SLA at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding. If any such revision to the SLA materially reduces service levels provided pursuant to an outstanding Order, the revisions will not go into effect with respect to such Order until the start of the Term beginning 30 or more days after PixoVR posts the revision and so informs Customer.
2.6 Fees. Customer shall pay PixoVR all applicable Implementation Fees and Services Fees as stated in each Order. PixoVR will not be required to refund Fees or any portion thereof under any circumstances.
3. CUSTOMER DATA & PRIVACY.
3.3 Data Accuracy. PixoVR will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
3.4 Data Deletion. PixoVR may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
3.5 Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to PixoVR’s computers or other media, any data (“Excluded Data”) regulated pursuant to any law, rule, order or regulation of any governmental entity having jurisdiction over such data (the “Excluded Data Laws”). CUSTOMER RECOGNIZES AND AGREES THAT: (a) PIXOVR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) PIXOVR’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
3.6 Aggregate & Anonymized Data. Unless Customer consents, PixoVR may not use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers.)
4. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
4.1 Acceptable Use. Customer and all Users shall comply with the AUP. Customer and Users shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third-parties to access the System; (b) provide System passwords or other log-in information to any third-party; (c) share non-public System features or content with any third-party; or (d) access the System in order to build a competitive product or service, to build a product or service using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System. If PixoVR suspects any breach of the requirements of this Section 4.1, including without limitation by Users, PixoVR may suspend Customer’s including User’s(s’) access to the System without prior notice, in addition to such other remedies as PixoVR may have. Neither this Agreement nor the AUP requires that PixoVR take any action against Customer or any User or other third-party for violating the AUP, or this Agreement, but PixoVR is free to take any such action it sees fit.
4.2 Restrictions. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant or related to the Services or the System including, without limitation, the System Software; modify, translate, or create derivative works based on the Services or any part of the System; or remove any proprietary notices or labels.
4.3 Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify PixoVR immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
4.4 Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized by PixoVR.
5. IP & FEEDBACK.
5.1 IP Rights to the System. PixoVR retains all right, title, and interest in and to the System, including without limitation all System Software. This Agreement does not grant Customer any ownership rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright, trademark, trade secret and other laws. Customer acknowledges and agrees that PixoVR owns and shall retain ownership of all patents, rights to file for patents, inventions, copyrights, images, trademarks, trade secrets and all other proprietary rights, title and interests (including any renewals or extensions) in or to the System and any other PixoVR software, source code, object code or other technology, including improvements, customizations, modifications or enhancements to the object code or source code of the System that may be developed by PixoVR during the Term (including, in each case, any derivative works thereof) (“PixoVR Materials”). Customer acknowledges and agrees that it does not have and shall not acquire or retain any rights whatsoever in or to the PixoVR Materials as a result of this Agreement, and does hereby relinquish, quitclaim and assign any such rights to PixoVR.
5.2 Feedback. PixoVR has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to PixoVR, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict PixoVR’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Feedback will not be considered confidential information (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of PixoVR’s products or services.)
5.3 License from Customer. Subject to the terms and conditions of this Agreement, Customer hereby grants to PixoVR a free, worldwide, limited, non-exclusive, non-transferable, revocable license to use, copy, store, configure, perform, display, incorporate and transmit Customer Materials solely as necessary to facilitate PixoVR in providing access to the System to Customer under this Agreement.
6. ADDITIONAL TERMS APPLICABLE TO PIXOVR RESELLERS.
6.1 Supplement to Affiliate Agreement. If you are a PixoVR authorized Reseller Affiliate, these terms supplement the terms and conditions of the Affiliate Agreement between you and PixoVR and specifically govern your access to and use of the Service during the course of your performing your marketing, sales, on-boarding, provision of Support Services, or other Customer support duties that you provide, when such activities by you require your use of or access to the Service. As used herein, the term Reseller Affiliate includes each and every Affiliate Reseller User as defined in section 1.13.
7. REPRESENTATIONS & WARRANTIES.
7.1 By Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, a sole proprietorship of an individual 18 years or older, or another entity authorized to consent to and perform the obligations hereunder to be performed by Customer; (d) Customer is at least eighteen (18) years of age; (e) Customer has read and understands this Agreement and agrees to be bound by these terms; (f) if Customer or its User is entering into this Agreement on behalf of its employer, such Customer or User is legally authorized by such employer to enter into this Agreement and has legal authority to bind such Customer’s or User’s employer to this Agreement; and (g) Customer’s use of the Services does not violate any law, rule or regulation to which Customer or its employer is subject.
7.2 Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 7.1 above, CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) PIXOVR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (b) PIXOVR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer shall defend, indemnify, and hold harmless PixoVR and the PixoVR Associates (as defined below) against any “Indemnified Claim,” meaning any third-party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Users or by Customer’s employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including by Customer Data; and (d) claims that use of the System through Customer’s account harasses, defames, or defrauds a third-party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to PixoVR’s negligence. Customer’s obligations set forth in this Article 8 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. PixoVR will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “PixoVR Associates” are PixoVR’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
9. LIMITATION OF LIABILITY.
9.1 PIXOVR’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT IN AGGREGATE THAT CUSTOMER HAS PAID TO PIXOVR FOR CUSTOMER’S ACCESS TO THE SYSTEM.
9.2 IN NO EVENT WILL PIXOVR OR CUSTOMER BE LIABLE TO FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. If applicable law limits the application of the provisions of this Article 9, PixoVR’s liability will be limited to the maximum extent permissible.
9.3 THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF PIXOVR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 9, PixoVR’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, PixoVR’s liability limits and other rights set forth in this Article 9 apply likewise to Pixo Associates as well as Pixo affiliates, licensors, suppliers, advertisers, sponsors, employees, consultants, and other representatives.
10. TERM & TERMINATION.
10.1 Term. The term of this Agreement (the “Term”) will commence on the Effective Date of any Order and continue for the Subscription Term set forth in each Order. Thereafter, the Term will renew for successive annual periods, unless either Party refuses such renewal by written notice 30 or more days before the renewal date.
10.2 Termination by PixoVR. PixoVR may immediately terminate this Agreement based on the Customer’s breach and upon such termination may suspend or disable Customer’s access to the Service.
10.3 Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. Any terms of this Agreement which by its nature must survive so that PixoVR can enforce its meaning shall survive the termination of this Agreement, including the following terms: (a) any obligation of Customer to pay Fees incurred before termination; (b) and Sections 3.1 (Use of Customer Data), 5 (IP & Feedback), 6 (Confidential Information), 7.3 (Warranty Disclaimers), 8 (Indemnification), and 9 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
11.1 Notices. PixoVR may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to service@PixoVRgroup.com, and such notices will be deemed received 72 hours after they are sent.
11.2 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing Party’s reasonable control.
11.3 Assignment & Successors. This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by Customer, but may be assigned or transferred by PixoVR without restriction, notice or other obligation to Customer.
11.4 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this 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 Agreement will continue in full force and effect.
11.5 No Waiver. PixoVR will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver by PixoVR of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
11.6 Choice of Law & Jurisdiction. This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Delaware, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties hereby consent to the personal and exclusive jurisdiction of the federal and state courts of Oakland County, Michigan. This Section governs all claims arising out of or related to this Agreement, including without limitation tort claims.
11.8 Construction. This Agreement will not be construed in favor of or against either Party by reason of authorship.
11.9 Technology Export. Customer shall not: (a) permit any third-party to access or use the System in violation of any U.S. law or regulation; or (b) export any software provided by PixoVR or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third-party to access or use the System in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
11.10 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Party has relied upon any such prior or contemporaneous communications.
11.11 Amendment and Modifications. This Agreement may be modified by PixoVR from time to time and in PixoVR’s sole discretion, with or without notice to Customers. PixoVR may notify Customers by posting a new version at the Website and otherwise by providing notice to Customers, and such new version will become effective on the date it is posted. Use of the Services by Customer after the effective date of any amendments or modifications evidences Customer’s agreement to be bound to this Agreement as amended or modified. Customer assumes responsibility to periodically check the Website to keep apprised of changes to these terms.
a. Non-Solicitation. Customer shall not during any Term and for the twelve (12) month period thereafter, directly or indirectly: (a) solicit, interfere with, or seek to obtain for Customer’s benefit, or for the benefit of any third-party, any contract or business relationship between Customer and any then-current employee/contractor of PixoVR, or any former employee/contractor whose employment/engagement terminated during the twelve (12) month period immediately preceding such solicitation and/or hire/engagement; or (b) hire or solicit for hire any then-current employee/contractor of PixoVR, or any former employee/contractor whose employment/engagement terminated during the twelve (12) month period immediately preceding such solicitation and/or hire/engagement.
11.12 EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.
IN WITNESS WHEREOF, by executing the PixoVR Services Order Form into which these Standard Terms of Service are included as an integral part thereof, or by using the Service, Customer agrees to be legally bound by these Terms of Service.