Dated: April 19, 2021
ArborXR End User License Agreement
This ArborXR End User License Agreement (“License Agreement”) constitutes a legally binding agreement between you (“Customer”, “you” or “your”) and ABXR Labs, Inc. d/b/a ArborXR, a Delaware corporation with a business address of 3750 West Main Street, Suite AA, Norman, Oklahoma 73072, (“ArborXR” 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 Client Software.
In connection with use of Services, you will need to download a copy of the Client Software. This License Agreement is a license to use those downloaded copies, subject to the terms and conditions hereof and the ArborXR Terms of Service (“Terms”) which you must accept in order to use the Client Software to access the Service.
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 THE TERMS AND AGREE TO BE BOUND BY THEIR TERMS AND CONDITIONS.
IF YOU ARE AN INDIVIDUAL ACCEPTING THESE TERMS ON BEHALF OF AN ENTERPRISE OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTERPRISE OR ENTITY TO THE TERMS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO THE ENTERPRISE/ENTITY AND THIS LICENSE AGREEMENT SHALL APPLY TO CUSTOMER AND ALL OF ITS USERS. ALL QUALIFICATIONS AND LIMITATIONS REGARDING ELIGIBILITY FOR USE OF THE SERVICES SHALL APPLY TO THE USE OF THE CLIENT SOFTWARE.
ARBORXR MAY MODIFY THIS LICENSE AGREEMENT AT ANY TIME. YOU ARE FREE TO CHOOSE TO ACCEPT A MODIFIED VERSION OF THIS AGREEMENT OR NOT, BUT ACCEPTING THIS AGREEMENT, AS MODIFIED, IS REQUIRED FOR YOU TO CONTINUE USING THE CLIENT SOFTWARE. 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 ARBORXR SERVICES AND CLIENT SOFTWARE. EXCEPT AS OTHERWISE EXPRESSLY STATED, ANY USE OF THE SERVICES IS SUBJECT TO THE VERSION OF THESE AGREEMENTS IN EFFECT AT THE TIME OF USE.
All capitalized terms which are used herein but not defined shall have the same meaning as defined in the Terms.
1. Client Software License Grant. Subject to and conditioned on your eligibility to use the Services and compliance with the Terms and this License Agreement, as such may be updated from time to time, ArborXR grants you a personal, non-exclusive, non-transferable, non-sublicensable, limited right to download and use copies of the Client Software without modification during the Term solely for accessing the Services.
Your Responsibilities and Acknowledgements.
2.1 Acknowledgements. Customer acknowledges and agrees that its Users shall be bound by this License Agreement and that Customer is responsible for ensuring and shall ensure its Users’ compliance with the Terms and this License Agreement. You shall be liable for any breach thereof. Should there be a conflict or inconsistency between any provisions of this Agreement and the treatment of such provision in the Terms, you agree that the treatment of such provision in this Agreement will control.
2.2 Restrictions. You shall not permit any other person (other than your Users who are bound by this License Agreement) to access or use the Client Software 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 Client Software; (b) decompile, disassemble, reverse-engineer, modify, adapt, tamper with, translate, create derivative works, create or recreate the source code for any part of the Client Software, 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 Client Software, including any copy thereof; (d) bypass or breach any security device or protection used by the Client Software.
2.3 Password; Security. 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 Customer and Users. You are responsible for any and all activities that occur under your and your Users’ access credentials to the extent such activities are not performed or caused by ArborXR, its agents or employees. You shall promptly notify ArborXR of any unauthorized use of your User Account, the Services, or any other breach of security known to you. You shall treat any Materials made available to you with the same degree of care with which you treat your own confidential information, and in no case less than a reasonable degree of care, and you shall take all reasonable precautions to protect the confidentiality of such ArborXR Materials made available to you. ArborXR shall have no liability for any loss or damage to you in any form arising from your failure to comply with these requirements.
Proprietary Rights and Other Licenses
3.1 Reservation of Rights. This License Agreement does not convey to you title or ownership of the Client Software, but only a right of limited use in accordance with the terms of this License Agreement. ArborXR reserves all rights, title, and interest in and to the Client Software, including all related intellectual property rights and proprietary rights therein.
3.2 Feedback. For any feedback that you provide to ArborXR 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 Services, or relating to ArborXR, or the Materials shall vest solely with ArborXR, and you agree to assign and do hereby assign all such Improvements to ArborXR without any additional consideration or contribution or acknowledgement.
3.3 Use of Your Name and Statements. You grant ArborXR 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.
3.4 Ownership of Data. As between you and ArborXR, ArborXR 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 ArborXR reserves all rights, title, and interest therein. ArborXR shall share certain Data with you that you may access via your User Account dashboard (or otherwise to the extent ArborXR elects to make Data available in other formats). 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 ArborXR the right to track, monitor, collect and publish information and Data generated via the Services, including that related to your and your Users’ interaction with and use of the Content, which shall be determined by ArborXR in its sole discretion from time to time.
4. 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 ArborXR. Any purported assignment, delegation or transfer in violation of this Section 4 is void. ArborXR 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.
5.1 Term. This License Agreement shall commence on the date you download the Client Software, and shall continue until terminated under the terms of this Agreement. If your right to use the Services is terminated, this License Agreement and the license granted herein shall simultaneously terminate.
5.2 Termination. We may suspend or terminate your access to and use of the Client Software if you breach any of the terms of this License Agreement, if your Subscription to the Services expires or is terminated, or if the ArborXR Terms of Service is terminated.
5.3 Effect of Expiration or Termination. Upon any expiration or termination of this License Agreement, you shall immediately cease all use of the Client Software.
6. Indemnity. You agree to indemnify, defend and hold ArborXR 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 your User’s use of the Client Software; or (b) your, or any of your User’s, breach or violation this License Agreement. ArborXR 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, and you agree to fully cooperate with us upon our request.
7. Disclaimers and Limitation of Liability
7.1 DISCLAIMERS THE CLIENT SOFTWARE IS PROVIDED ON AN “AS IS’’ 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 ARBORXR NOR ANY PERSON ASSOCIATED WITH ARBORXR MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE CLIENT SOFTWARE. WITHOUT LIMITING THE FOREGOING, NEITHER ARBORXR OR ANY PERSON ASSOCIATED WITH ARBORXR MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION THAT THE CLIENT SOFTWARE OR WILL BE UPDATED, UPGRADED OR IMPROVED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ARBORXR 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 ARBORXR OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS WARRANTIES MADE BY ARBORXR IN THIS LICENSE AGREEMENT.
7.2 LIMITATION OF LIABILITY. IN NO EVENT WILL ARBORXR, OR ANY OF ITS SUPPLIERS, 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; (D) ANY LOSS, DAMAGE OR IMPAIRMENT DUE TO ANY CLAIMS OR ACTIONS FOR PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT YOUR OR YOUR USERS’ USE OR ACCESS TO THE SERVICES (INCLUDING ANY INJURY OR PROPERTY DAMAGE THAT OCCURS AT A USER’S LOCATION); OR (E) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLUDING SUCH LOSSES IDENTIFIED IN (A) – (D) 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. ARBORXR’S AGGREGATE COLLECTIVE LIABILITY IS THAT AS SET FORTH IN THE ARBORXR TERMS OF SERVICE BETWEEN YOU AND ARBORXR.
8. Arbitration Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause. If you are a resident of the United States (including its possessions and territories), 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 ArborXR 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.
Arbitration shall be subject to the Federal Arbitration Act and not any state or provincial/territorial arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and 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 ArborXR must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR ARBORXR MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF AREPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, ArborXR will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (d) ArborXR also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator shall honor claims of privilege and privacy recognized at law; (g) 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; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) 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 Delaware in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Delaware 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 Delaware.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
9. 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.
10. Governing Law and Venue. This License Agreement shall be governed and interpreted by the laws of the State of Delaware 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 Delaware. 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 the State of Delaware, and each Party hereto irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
11. Interpretation. 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.
12. Severability. 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.
13. Export Regulations. ArborXR 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. You 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 ArborXR harmless from any loss, damages, liability, or expenses incurred by ArborXR as a result of your failure to comply with any export regulations or restrictions.
14. Force Majeure. In no event will ArborXR 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 ArborXR’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. ArborXR may terminate this License Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.
15. Entire Agreement. Unless otherwise expressly agreed in writing between the Parties, this License Agreement, and other agreements incorporated by reference herein, contains the entire understanding and agreement between you and ArborXR concerning the Services and Client Software and supersedes any and all prior or inconsistent understandings relating thereto. This Agreement cannot be changed orally.
16. 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.
17. Survival. All provisions relating to ArborXR’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.