Dated: April 19, 2021
ArborXR Terms of Service
1. Introductions, Acceptance and Effective Date.
This ArborXR Terms of Service (“Terms”) is between 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”), and the individual or entity accepting these Terms, electronically or by signature, (“you” or “your”). ArborXR and you may also be referred collectively as “Parties” and each individually as a “Party”.
The access to and use of our services (“Services”) are provided to you subject to these Terms which are effective as of the date that you first click the “I Accept” to the Terms, or otherwise accept the Terms, or gain initial access to or use our Services (“Effective Date”).
By accepting the Terms, you acknowledge and agree that you: (a) are at least 16 years of age (or the minimum age in your jurisdiction for entering into a binding contract), (b) have read and understand the Terms, (c) are legally bound to the Terms and any other agreements or policies incorporated herein by reference, (d) have the authority to accept the Terms on behalf of yourself as an individual or on behalf of the entity that you represent (“Customer”), and (e) that your use of the Services doesn’t not violate any law, rule or regulation or terms and conditions or requirements to which you are subject.
IF YOU DO NOT AGREE TO THE TERMS OR HAVE THE AUTHORITY TO BIND THE ENTITY YOU REPRESENT TO THE TERMS, DO NOT ACCEPT THESE TERMS AND USE THE ARBORXR SERVICES.
YOU FURTHER UNDERSTAND THAT THESE TERMS CONTAINS AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER, WHICH SHALL BE ENFORCEABLE AGAINST YOU UNLESS CONTRARY TO GOVERNING LAW.
As used in these Terms, the following capitalized terms have the following meanings:
“Authorized User” means an individual who has created a User Account, accepted these Terms, and is accessing and using the Services on behalf of and under the control, direction or management of a Customer.
“Client Software” means the software components that ArborXR makes available for download that must be installed in connection with the use of our Services, including but not limited to our Android Client Application, Android Launcher Application, Desktop Pairing Application, and Mobile Pairing Application, and all new versions, updates, revisions, improvements and modifications thereof.
“Content” means the extended reality applications and games, 360º video, interactive tools, training or educational materials, and other content, information or postings that you or your Users submit, upload, transmit, manage and/or make available via the Services.
“Customer” means the business entity or organization that has created a User Account, accepted these Terms and owns the Subscription to the Services.
“Data” means any and all data and information, in any form or medium, that is collected, downloaded, uploaded or otherwise received, directly or indirectly, by or through the Services, including any Content, data, or information derived or processed by the Services based on a User’s use of and/or access to the Services.
“Device” means an extended reality headset or glasses that is supported by our Services.
“Documentation” means any explanatory materials, operating or training manuals, or other materials that ArborXR makes available to you that describe the functionality, components, features or requirements of the Services.
“End User” means an individual or entity that is accessing and using the Services on behalf of and under the control, direction or management of a Customer.
“Fee” means the fee you pay to ArborXR for purchased Services made available during a Subscription Term.
“Materials” means ArborXR’s Software, Documentation, Systems, Data, account information and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technology and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided to or accessed by you via the Platform (other than Third-Party Services) or used by ArborXR in connection with the Services.
“No-Charge Services” means Services or certain features and functionalities made available to you at no charge, including a free Subscription plan and beta versions.
“Platform” means the software platform operated by ArborXR that enables users to run software applications for the deployment and management of extended reality devices and content.
“Services” means the services, products, software, and support made available to you by Subscription that are developed, operated and maintained by us and accessible at http://arborxr.com or other designated URL, including our Website, Platform, Materials, Add-Ons and other related products and services, including content hosting, that we may provide.
“Software” means all the software and/or applications made available by ArborXR whether cloud-based or Client Software, and all new versions, updates, revisions, improvements and modifications thereof.
“Subscription” means the tiered offerings of applicable services, products, software, and support provided by ArborXR for a specified period of time.
“Subscription Term” means the period of time for which you have access to ArborXR Services beginning on the Subscription Start Date. For a paid Subscription, the Subscription Term is one (1) year, unless otherwise agreed. A Subscription Term for No-Charge Services is the period of time for which you have access to the No-Charge Services.
“Subscription Start Date” means the date you are given access to the Services.
“Systems” means the information technology infrastructure used by or on behalf of ArborXR in performing the Services, including all computers, software, hardware, database, electronic systems (including database management systems) and networks, whether operated directly by ArborXR or through the use of Third-Party Services.
“Third-Party Services” means any services, materials or information, in any form or medium, including any software, documents, data, content, specifications, products, games, devices, equipment or components that are used in conjunction with, or of or relating to the Services, or use thereof that are not owned or proprietary to ArborXR.
“Users” means all users of the Services, including Customers, Authorized Users, and End Users.
“Website” means ArborXR’s website, www.arborxr.com , and all corresponding or associated domains, subdomains, web pages and websites.
3. The Services
3.1 Provision of Services; Supplemental Terms. ArborXR makes the Services available to you on a subscription basis pursuant to these Terms and other policies or agreements which ArborXR may present to you (collectively, “Supplemental Terms”). Supplemental Terms are incorporated into and form a part of these Terms. Services are available subject to our sole discretion and, in some cases, may be limited based on region.
3.2 No-Charge Services. We may offer No-Charge Services to you, which may be modified, terminated and/or limited in use, functionality and support at any time without notice. Your use of No-Charge Services is subject to these Terms and any applicable Supplemental Terms. Notwithstanding the foregoing, No-Charge Services are provided on an “as is” basis and are not subject to any warranties, indemnification or liability or other contractual obligations applicable to other Services unless such exclusions are not enforceable under applicable law.
3.3 Add-ons. ArborXR may make certain additional services, capacity, enhancements, features, third-party services or other elements available to you for purchase (“Add-on”) on a per Device basis or for a flat fee, as applicable. If not purchased on the Subscription Start Date, Add-ons will be co-termed to the underlying Subscription Term. All Add-ons are subject to these Terms and any applicable Supplemental Terms.
3.4 Changes to the Services. We will occasionally provide automatic upgrades or make modifications to the Services or to our Materials in order to maintain or enhance your experience, improve the cost efficiency or performance or competitive strength of the Services, or to comply with applicable laws, regulations or orders. These changes may not be consistent across all devices and may include the addition or discontinuance of a feature or functionality. We reserve the right to make changes with or without notice to you.
4. Use of the Services
4.1 Access and Use. ArborXR will provide access to and use of the Services to you solely for your personal, non-commercial use except as expressly provided in the Terms. ArborXR will also provide access to and use of the Services to a Customer or an individual authorized by the Customer to access and use the Services on its behalf (including its Authorized Users and End Users) in accordance with these Terms. Customer acknowledges that each of its Users must agree to these Terms prior to use of the Services and that Customer will be responsible for ensuring compliance by each of its Users with these Terms and for any breach of these Terms by its Users. This includes the right, as part of your authorized use of the Services, to download and use the Client Software according to the terms and conditions set forth in Section 5.2 below and the ArborXR End User Licensing Agreement which is incorporated herein and made a part hereof. Any limits that apply to your use of the Services will be determined by the Services plan and the functionality of Services to which you subscribe and by these Terms.
5.1 Service License. Subject to and conditioned on your compliance with these Terms. ArborXR grants you a non-exclusive, non-transferable, non-sublicensable, limited right during the Subscription Term to access and use the Service solely for the purposes of managing your Users’ Devices and making Content available to your Users.
5.2 Client Software License. Subject to and conditioned on your eligibility to use the Services and compliance with these Terms and the ArborXR End User License Agreement (incorporated herein by reference), 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.
5.3 Content. As between you and ArborXR, we acknowledge and agree that you maintain all rights, title and interest in and to the Content that you submit to the Services. You warrant and represent that you either own or have the right to provide all Content that you submit to the Services. By submitting, uploading, managing and/or making available the Content through the Services, you hereby grant to ArborXR a non-exclusive, worldwide, license in and to patent, trademark, trade secret, copyright or other proprietary rights in and to the Content solely to: copy, transmit, perform, display, modify (solely for formatting purposes), capture, translate, host, distribute, make available and use the Content solely in connection with the provision of the Services, subject to the terms of this Terms. You are solely responsible for any Content that you submit, upload, manage, and/or make available via the Services. In no event shall we be responsible for the use or misuse of any Content by you, Users, or other third party. ArborXR reserves the right to exclude or remove any Content that we, in our sole discretion, determine to be prohibited by these Terms.
5.4 Hosted Content. Subject to and conditioned on your compliance with these Terms. ArborXR grants you a non-exclusive, non-transferable, non-sublicensable, limited license during the Subscription Term to upload Content to our hosting system solely for use in connection with the Services and subject to, and solely for purposes consistent with, the Terms. Our hosting services are accessible via your User Account. You represent and warrant that during the Subscription Term: (a) you shall (and shall ensure that third parties or Users) access, use, submit or upload Content to the Services only as permitted by these Terms and the applicable Documentation; and (b) you shall obtain and maintain all rights, licenses, authorizations and consents necessary for you to upload and make the Content available to your Users via the Services and for ArborXR to host, display and make available the Content to your Users. We are not required to provide hosting services for any software, applications, content, components or Third-Party Services, other than the Services, unless otherwise specifically agreed by us in writing.
6.1 Subscriptions. Services are offered on a subscription basis through free and paid Subscription plans. The current Subscription plans and available Add-ons and their corresponding fees are available on our Website or specified on your billing page accessible through your User Account dashboard.
6.2. Initial Subscription Term and Renewals. The initial Subscription Term for No-Charge Services begins on your Subscription Start Date and continues as long as you have access to the No-Charge Services. The initial Subscription Term for paid Services begins on your Subscription Start Date and continues for a one (1) year period. Paid Subscriptions automatically renew for successive one (1) year periods unless cancelled or terminated. Fees for a renewed Subscription will be charged at the then-current Subscription plan rates. If your Subscription is not renewed, you will not be charged for the next Subscription Term, nor will you receive any refund for credits that have not been used prior to the end of your current Subscription Term.
6.3. Cancellation. You may choose to cancel your Subscription for any reason at any time without notice to us and ArborXR may cancel your Subscription for any reason at any time upon thirty (30) days written notice to you. If your Subscription is cancelled, ArborXR will not provide any refunds of prepaid Fees. Upon cancellation, access to the Services will remain available to you until your Subscription Term has expired. Once the Subscription Term has expired, your access to Services will be limited. If you do not reactivate your Subscription, as may be allowed, your access to the Services will be terminated.
7. Fees and Payments
7.1 Fees and Adjustments. Your Fee for Services is based upon the Subscription plan you choose, and where applicable, a price per Device per month, the number of Devices you have specified on your billing page, any charges for Add-ons, any other fees specified on your billing page as well as any applicable credits or additional charges. Your Fee may be adjusted during your Subscription Term if you make changes in your account, including but not limited to upgrading or downgrading your Subscription plan, increasing or decreasing your Device limit, exceeding applicable limits, subscribing to Add-ons, or becoming subject to any credit or additional charge. Fee adjustments will be made immediately by issuing and applying the prorated credits or charges to your account as applicable.
7.2 Payment. Payment of Fees will be made against invoices presented to you on your billing page. Invoices are due and payable immediately upon presentation in the currency of the United States, and all Fees are non-refundable and non-cancellable.
7.2.1 Payment by Credit Card. If you are paying by credit card, you authorize ArborXR to charge your credit card or bank account for all Fees payable. You also authorize ArborXR to use third-party payment processors and consent to the disclosure of your billing information, if applicable.
7.2.2 Payment by ACH. If you are paying by ACH, you authorize ArborXR or our designated payment processor to store your bank account information and other required information, and to conduct automatic debits of your designated bank account for such Fees as they become due. This authorization to initiate ACH debit transactions will remain in full force and effect until ArborXR has received written notice cancelling the authorization from you by email at [email protected] at least thirty days (30) in advance of the date the applicable charges become due. Because these are electronic transactions, these funds may be withdrawn from your designated bank account immediately.
7.3 Disputed Fees. If you dispute any Fees charged to you by ArborXR, you must notify us by email at [email protected] within thirty (30) days of the date of the invoice in dispute. We will work with you to resolve the applicable dispute in a reasonable manner.
7.4 Unpaid Fees. In the case of your failure to make full payment for invoiced Services for any reason, ArborXR may at its discretion (a) attempt to repeatedly process the payment for a period of time, (b) suspend or otherwise limit your access to the Services until the matter is resolved, or (c) terminate these Terms.
7.5 Taxes. All Fees stated in your invoice are exclusive of taxes, levies, duties, tariffs or similar governmental assessments, including, sales, value-added, goods and services tax, use or withholding taxes, assessable by any jurisdiction, (collectively, “Taxes”). You agree to pay all Taxes, and any related penalties and interest, associated with the use of our Services, except for those taxes based on our net income. If applicable law requires us to charge, collect and remit any Taxes on your behalf, the Taxes will be added to your invoice for payment by you. In such case, you represent that you are registered for tax purposes with the appropriate taxing authority, and at our request, you will provide us with your tax registration number.
8. Term and Termination
8.1 Term. These Terms are effective on the Effective Date and shall continue until terminated.
8.2 Termination for Cause. Either Party may terminate these Terms upon written notice to the other Party, if the other Party: (i) materially breaches these Terms, effective in 30 days unless the breach is cured, or effective immediately if the breach is not subject to cure; (ii) becomes the subject of a petition in bankruptcy that is not dismissed within forty-five (45) days or any other proceeding related to insolvency, receivership, liquidation, or assignment for the benefit of creditors, or (iii) ceases operation without a successor. We may also terminate these Terms, effective immediately without prior notice, if we determine that you have violated any acceptable use or restriction related to the Services, or have otherwise acted in a way that harms or negatively affects us or our existing or prospective Users.
8.3 Termination for Convenience. You may stop using our Services and terminate these Terms for any reason at any time without notice to us by deleting the organization associated with your User Account. ArborXR may terminate these Terms for any reason upon thirty (30) days’ written notice to you.
8.4 Effect of Termination or Expiration. Upon termination of these Terms or expiration of your Subscription, your access to the Services and Materials shall terminate, and all licenses and rights granted to you shall immediately terminate. You and your Users shall stop all use of the Services and Materials. ArborXR, in its sole discretion, may disable all your and your Users’ access to the Services or delete all Data associated with you, your Authorized Users, and End Users. Upon termination or expiration of these Terms, you will not be entitled to a refund of any prepaid Fees. If you have not paid all Fees due through the end of the then-current Subscription Term, those Fees are immediately due and payable.
8.5 Suspension. ArborXR may, in its sole discretion, suspend any User’s access to our Services without notice for (a) non-payment of Fees; (b) violation of the Terms; (c) being subjected to or engaged in a denial of service attack or other disruptive activity; (d) creating a security vulnerability for our Services; (e) exceeding any applicable limitations on your use of the Services, including our hosting of Content; or (f) causing harm to us or others. We will work with you to promptly and in a reasonable manner resolve the issue causing the suspension, however nothing in this Section 8.5 limits our right to terminate for cause
9. Your Responsibilities
9.1 Accuracy and Maintenance of Information. It is your responsibility to provide and maintain accurate and complete account and billing information. You acknowledge that ArborXR bears no responsibility for and shall have no liability for any losses incurred as a result of any of your inaccurate, incomplete or untimely information.
9.2 Unauthorized Access and Account Security. You shall take reasonable steps to prevent unauthorized access to the Services, including without limitation, keeping all User Credentials strictly confidential and preventing unauthorized sharing. You shall promptly notify ArborXR of any known or suspected unauthorized use of your User Account, the Services or breach of its security and shall use your best efforts to stop said breach. You are responsible for establishing and monitoring appropriate permissions and controls in connection with your Users’ use of the Services.
9.3 Responsibility for Users. You are responsible for the use of the Services and any activity under your User Account by you and any User that you authorize or invite to use the Services on your behalf or under your supervision and control regardless of whether the actions were authorized or unauthorized and your knowledge of such actions. You must notify your Users that their use of the Services and the use of their Data are subject to these Terms and relevant policies. You must not let a User access or use the Services if they do not agree to be bound by these Terms and relevant policies. You are responsible for your Users compliance with these Terms and the relevant policies and for ensuring that the transfer and processing of their Data under the Terms is lawful.
9.4 Acceptable Use. You are responsible for the acceptable use of the Services and Materials and any unlawful or harmful activities are expressly prohibited.You agree that, while using the Services, you will not, and will not allow others to:
(a) sell, distribute, rent, lease, lend, market, license, sublicense, transfer, commercialize, or otherwise provide unauthorized access to the Services or Materials, including but not limited to posting or otherwise making the Services available on the Internet including as a service bureau or application service provider;
(b) attempt to decompile, disassemble, reverse-engineer, hack, modify, adapt, tamper with, disable, interfere with, disrupt, translate, create derivative works, create or recreate the source code for any part of the Services or Springboard Materials, in whole or in part;
(c) modify, remove, erase, obscure, tamper with or fail to preserve any copyright or product identification, trademark, trade name, proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on the Services or Materials, including any copy thereof;
(d) attempt to gain unauthorized access to the Services or Materials, or bypass or breach any security device or protection used by the Services or Materials;
(e) input, upload, transmit or otherwise provide to or through the Services or
Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any malicious, disruptive, or harmful code; upload to, or transmit from, the Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component or a technology that unlawfully accesses or downloads content or information stored within the Services;
(f) make available through the Services any material, content or information or take any action that is or is likely to be unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, deceptive, fraudulent, false, incorrect, misleading, invasive of another’s privacy or publicity rights, harassing, profane, obscene or vulgar, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(g) damage, destroy, disrupt, disable, impair, alter or interfere with or otherwise impede or harm in any manner the Services, Materials or ArborXR’s provision of Services to any third party, in whole or in part;
(h) access or use the Services or Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the Data of any other ArborXR user), or that violates any applicable contract, law, rule, regulation, judicial or government order;
(i) access or use the Services or Materials for purposes of competitive analysis of the Services or Materials, or the development, provision or use of a competing software service or product or any other purpose that is to the ArborXR’s detriment or commercial disadvantage;
(j) otherwise access or use the Services or Springboard Materials beyond the scope of the authorization granted under Section 5.
(k) engage in or encourage conduct that affects adversely or reflects negatively on our brand, the Services, business, goodwill or reputation or causes duress, distress or discomfort to us or anyone else, or discourage any person from using the Services.
(l) make any representations or warranties regarding the Services or any other matter on behalf of nor create any obligations or liabilities for ArborXR.
If we believe a violation of this Section 9.4 has occurred, we may suspend or terminate your access to and use of the Services and Materials or terminate these Terms, without advance notice to you. We reserve the right, but are not required to under the Terms, to take any action against anyone who, in our sole discretion, violates, or is suspected of violating this Section including, without limitation, reporting a violator to law enforcement authorities or cooperating with law enforcement who validly request information from us.
9.5 You are solely responsible for any Third-Party Services and any of your products, services, content, operations, and other business offerings or activities that you provide or that are provided to your customers, employees, contractors, representatives or other Users for use in connection with the Services.
9.6. Notifications. You are responsible for reviewing all notices, reports, documents or materials made available to you by ArborXR and, if appropriate, to make such information available to your Users. If you receive any notice from a third party that may affect our provision of Services to you, you must provide ArborXR with the notice in a timely manner.
9.7 Compliance with Laws. You will be solely responsible for compliance with any and all applicable laws, rules and regulations in connection with your and your Users’ use of our Services.
9.8 Digital Millennium Copyright Act. In the use of our Services, you are responsible for complying with our Digital Millennium Copyright Act (“DCMA”) Policy.
10. ArborXR Responsibilities
10.1 Availability of Services. We will use commercially reasonable efforts to make the Services available to you 24 hours a day, 7 days a week, except for planned downtime, unavailability of the Services beyond our control, including for example, a Force Majeure Event, Internet service provider failure, or delay or denial of services attack, or any unavailability of Third-Party Services.
10.2 Support. For assistance with technical issues or customer support inquiries related to the Services, please send an email to: [email protected] . We shall use commercially reasonable efforts to provide you with e-mail support during our normal business hours. Some support may require us to assist you by accessing your User Account or by using a remote access tool to access your computer(s). To the extent any non-standard or specialized support or additional training is required, such support may be subject to a fee at our then-current support hourly rates.
10.4 European Union Data Protection. If you are located in the European Union (“EU”) or the European Economic Area (“EEA”), transfer of personal data outside of the EU or EEA is regulated by certain EU data protection laws. The Standard Contractual Clauses are used to ensure that personal data leaving the EEA will be transferred in compliance with these laws. Please be advised that Data, including personal data may be transferred to, processed, maintained or stored on servers or databases by ArborXR or third-party service providers outside of the EU or EEA. ArborXR agrees and you agree to the terms of the DPA that includes the Standard Contractual Clauses.
11. Intellectual Property Rights; Other Licenses
11.1 Reservation of Rights. These Terms do not convey to you title or ownership of the Services or any of our Materials, but only a limited right to use the same as expressly provided for in these Terms. No other rights, express or implied, are granted by ArborXR. We own and reserve all rights, title, and interest in and to the Services and our Materials, including all related intellectual property rights and proprietary rights therein (other than personally identifiable information). You and your Users shall treat any ArborXR 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 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.
11.2 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.
11.3 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 from you in any and all media now known or hereafter discovered without notice, review or approval and without additional compensation.
11.4 Use of Data. You are solely responsible for any Data uploaded or stored on the Services by you or your Users. In no event shall we be responsible for the use or misuse of any Data by you or your Users or other third parties. You warrant and represent that you either own or have the right, license or necessary consents to provide all Data. In addition to the other rights to use Data as set forth herein, you grant ArborXR a fully paid, perpetual, transferable worldwide license to: (a) use Data uploaded downloaded, collected, or otherwise received by or from you and your Users via the Platform for purposes of providing and improving the Services; and (b) generate, publish and otherwise utilize aggregate and/or anonymized information about any Data relating to you and your Users (collectively “Data Subjects”), obtained as a result of these Terms.
12. Third-Party Services.
Your use and access of the Services may require Third-Party Services to operate or integrate with the Services. Some Third-Party Services may be made available through the Services. Your failure to obtain any applicable Third-Party Services may result in you not being able to use or access our Services or Materials. Your use of a Third-Party Service is exclusively governed by a separate Terms between you and the third-party provider. You will comply with all terms and conditions and obtain all required permissions and consents applicable to the use of Third-Party Services. If you enable or use Third-Party Services, we will allow the third-party providers to access or use Data relating to you or your usage as required for the interoperation of their products and services with our Services and Materials. This may include transmitting, transferring, modifying or deleting Data, or storing Data on systems belonging to the Third-Party Services. Any Third-Party Services’ use of Data related to you is subject to the applicable agreements between you and such third-party providers. You acknowledge and agree that you have sole responsibility for and assume all risks arising from your use of Third-Party Services; and that between you and ArborXR, your sole remedy with respect to such Third-Party Services shall be with the third-party provider.
ARBORXR DOES NOT WARRANT, ENDORSE, INDEMNIFY OR SUPPORT ANY THIRD-PARTY SERVICES AND SHALL NOT BE LIABLE FOR ANY BREACH, FAILURE, OR UNAVAILABILITY OF THE THIRD-PARTY SERVICES FOR ANY REASON WHATSOEVER. UNDER NO CIRCUMSTANCE WILL ARBORXR BE RESPONSIBLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE ASSOCIATED WITH SUCH THIRD-PARTY SERVICES AND YOUR CHOICE TO USE SUCH IS AT YOUR OWN DISCRETION AND RISK.
13.1 You agree to maintain the confidentiality of ArborXR’s Confidential Information. For purposes of the Terms, “Confidential Information” means all of ArborXR’s software code, inventions, trade secrets, know-how, and technical, business and financial information that are not publicly known. Such Confidential Information shall be either: (a) identified as confidential at the time of disclosure; or (b) the nature of such information and/or the manner of disclosure are such that a reasonable person would understand it to be confidential. Without limiting the foregoing, and subject to applicable open source license(s), all confidential portions of the Services and Materials are considered ArborXR’s Confidential Information.
13.2 Confidential information does not include any information that (a) was rightfully in your possession or known to you prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of yours; (c) is rightfully obtained by you from a third party without breach of any confidentiality obligation; or (d) is independently developed by you without access to such information.
13.3 You agree: (a) to maintain the confidentiality of the Confidential information; (b) not use Confidential Information for any purpose other than fulfilling your obligations and exercising your rights under these Terms; (c) to use the same care to protect our Confidential Information as you would use to protect your own similar information, but in no event less than reasonable care; (d) to not disclose any Confidential Information to third parties without ArborXR’s consent, other than to your employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations that are consistent with those in this Section 13; and (e) to promptly notify us of any misuse or misappropriation of Confidential Information that comes to your attention.
13.4 You agree that a breach of any confidentiality or proprietary rights provision of these Terms may cause ArborXR irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, we will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
13.5 Title 18, § 1833(b) of the United States Code provides that “[a]n individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.” Accordingly, the parties have the right to disclose trade secrets as allowed by 18 U.S.C. § 1833(b) and nothing in these Terms is intended to conflict with or limit the immunity under 18 U.S.C. § 1833(b).
14. Modification of the Terms.
We may modify these Terms from time to time without notice to you, for any reason, at our sole discretion. We may post or display notices of material changes on our Website and/or notify you via other electronic means. The form of such notice is at our discretion. Once we post or make them available, these changes become effective immediately and if you use the Services after they become effective it will signify your Terms to be bound by the changes. We recommend that you check back frequently and review these Terms regularly so you are aware of the most current rights and obligations that apply to you.
15. Successors and Assigns.
You shall not assign or delegate any of your rights or obligations under these Terms, 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 15 is void. ArborXR may freely assign and delegate its rights and obligations under these Terms without restriction or notice to you. The Terms are binding upon the Parties hereto and their respective representatives, successors, and permitted assigns.
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, licensors, 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 Users’ use of the Services; (b) your or your Users’ breach or violation these Terms; or (c) you or your Content. We reserve the right, but not the obligation, 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.
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, CONTENT AND THIRD-PARTY MATERIALS AND THIRD PARTIES UTILIZED BY YOU AND ARBORXR IS NOT RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOUR OR YOUR USERS’ USE OF THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OR YOUR USERS’ OWN RISK. EXCEPT FOR ANY WARRANTIES BY ARBORXR EXPRESSLY PROVIDED IN THESE TERMS, THE SERVICES, CONTENT, INFORMATION, DOCUMENTATION/MATERIALS AND ARBORXR IP ARE PROVIDED ON AN “AS IS’’ AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR STATEMENTS OF ANY KIND, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER 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 SERVICES, CONTENT, INFORMATION, DOCUMENTATION OR ARBORXR IP. WITHOUT LIMITING THE FOREGOING, NEITHER ARBORXR OR ANY PERSON ASSOCIATED WITH ARBORXR MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION THAT THE FEATURES AND FUNCTIONS CONTAINED IN THE SERVICES, CONTENT OR ARBORXR IP WILL MEET YOUR OR YOUR USERS’ SPECIFIC REQUIREMENTS OR EXPECTATIONS OR THAT THE OPERATION OF THE SERVICES, CONTENT OR USE OF THE ARBORXR IP WILL BE UNINTERRUPTED OR ERROR FREE OR INTEROPERABLE OR COMPATIBLE WITH OTHER SOFTWARE OR SERVICES, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES, CONTENT OR ARBORXR IP WILL BE UPDATED, UPGRADED OR IMPROVED, THAT THE SERVICES, CONTENT, INFORMATION, DOCUMENTATION, ARBORXR IP, OR ARBORXR SOFTWARE ARE 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 TERMS.
18. LIMITATION OF LIABILITY.
IN NO EVENT WILL ARBORXR, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS, OR EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OR THEIR 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. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF ARBORXR AND ITS LICENSORS, SERVICE PROVIDERS, SUPPLIERS , EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS UNDER OR IN CONNECTION WITH THIS TERMS OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED EITHER THE AMOUNT OF FEES PAID BY YOU TO ARBORXR DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM OR ACTION AROSE. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. YOU SHALL BE RESPONSIBLE FOR ALL CLAIMS AND DAMAGES RESULTING FROM THE MISUSE OF THE SERVICES BY YOU OR YOUR USERS.
19. 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 to 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 these Terms 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 A REPRESENTATIVE 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; (f) 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.
20.1 To ArborXR. Notices to ArborXR in connection with these Terms shall be in writing and may be sent to [email protected] (if by email), or delivered by certified or registered mail with return receipt requested, or by overnight courier delivery to the addresses first written above.
20.2 To You. Notices to you may be sent either to the email address or physical address supplied and updated by you in your User Account. In addition, we may send broadcasts or messages through the Services to inform of changes to the Services or other matters of importance, and such broadcasts shall be deemed satisfying the notice provisions of this Section 19 to the extent permitted by applicable law.
20.3 Delivery. Notices are validly delivered upon (a) on the delivery date if delivered personally; (b) two (2) business days after deposit with a commercial overnight courier, with written verification of receipt; (c) five (5) business days after the mailing date, if sent by certified or registered mail with return receipt requested; (d) upon written or electronic confirmation of receipt if sent by email; or, as applicable, (e) three (3) days after ArborXR posts a notice or broadcast within the Services. By using the Services, you consent to receiving electronic communications from ArborXR related to your use of the Services.
21. Governing Law and Venue.
These Terms 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 these Terms 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.
22. Miscellaneous/ General
22.1 Entire Agreement. Unless otherwise expressly agreed in writing between the Parties, these Terms, and other agreements incorporated by reference herein, contain the entire understanding and agreement between you and ArborXR concerning Services and supersedes any and all prior or inconsistent understandings relating thereto. The Terms cannot be changed orally.
22.2 Precedence. In the case of inconsistency or conflict between the provisions of these Terms and the treatment of such provision in any Supplemental Terms, the treatment of such provision in the Supplemental Terms will control but all other provisions of the Terms shall continue to apply.
22.3 Interpretation. For purposes of these Terms: (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 these Terms as a whole. The Parties intend these Terms 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 the Terms are for reference only and do not affect the interpretation of the Terms.
22.4 Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of these Terms invalid or otherwise unenforceable in any respect. In the event that a provision of the Terms 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 the Terms shall not be affected and will continue in full force and effect.
22.5 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 the Terms, no failure to exercise or delay in exercising any rights, remedies, powers, or privileges arising from the Terms 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.
22.6 Relationship of the Parties. The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
22.7 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 us as a result of your failure to comply with any export regulations or restrictions.
22.8 Force Majeure. In no event will ArborXR be liable or responsible to you, or be deemed to have defaulted under or breached the Terms, for any failure or delay in fulfilling or performing any term of these Terms 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 these Terms if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
22.9 Survival. All provisions relating to ArborXR’s proprietary rights, confidentiality, disclaimer of warranties, limitation of liability, indemnification, and any other provisions of these Terms expressly stated to survive or which by their nature extend beyond the expiration or termination of these Terms shall survive the expiration or termination of the Terms