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EARLY ACCESS TESTING AGREEMENT

This EARLY ACCESS TESTING AGREEMENT (“Agreement”) is a legal agreement by and between Springboard Virtual Reality, Inc. d/b/a SpringboardVR ("Springboard" or “we” or “us” or “our”), a Delaware corporation with a business address of 3750 West Main Street, Suite AA, Norman, Oklahoma 73072 and you (“you” or “your”) regarding the terms under which Springboard will provide you with early access to its pre-beta enterprise VR device management platform and content hosting and management services (collectively, “Services”). Springboard and you may be referred to herein collectively as “parties” and each individually as a “party.”

The pre-beta enterprise platform is an online virtual reality ("VR") management platform (“Platform”) that, in conjunction with the Springboard Services Software and Springboard Client, enables you to  manage VR devices and Your Content for limited access by Authorized Users subject to the terms and conditions of this Agreement.

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR CONTINUING TO USE THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.  YOU FURTHER UNDERSTAND THAT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER, WHICH SHALL BE ENFORCEABLE AGAINST YOU UNLESS CONTRARY TO GOVERNING LAW. THIS AGREEMENT ALSO GOVERNS YOUR USE OF THE SERVICES UNDER A FREE TRIAL.

This Agreement shall begin on the date of your acceptance and shall remain in effect for the term of the early access testing, unless sooner terminated (the “Term”). Springboard shall have the right to end the early access testing at any time. Upon conclusion of the early access testing, this Agreement shall terminate.

  1. In addition to the terms defined elsewhere herein, the following terms shall have the following meanings.
  1. Account Creation. You will be required to create an account via the Platform to use the Service (“Account”). You and your Authorized Users are responsible for maintaining the confidentiality of all access credentials, including logins and passwords, for your Account. You are responsible for any and all activities that occur under your Account to the extent such activities are not performed or caused by Springboard, its agents or employees. You shall promptly notify Springboard of any unauthorized use of your Account, the Services, or any other breach of security thereto known to you.

    • Service License. Subject to and conditioned on your compliance with the terms and conditions of this Agreement and any additional terms, Springboard grants you a non-exclusive, non-transferable, non-sublicensable, limited right during the Term to access and use the Service solely for the purposes of managing devices of Authorized Users and making Your Content available to your Authorized Users.
    • Springboard Client License. Subject to and conditioned on your compliance with the terms and conditions of this Agreement, Springboard grants you a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to download, install, and use a single copy of the Springboard Client and Documentation for each Authorized User device solely for the purposes of managing these devices and making Your Content available to Authorized Users.
    • Hosted Content. Subject to and conditioned on your compliance with the terms and conditions of this Agreement, Springboard grants you a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to upload Your Content to the Springboard hosting system solely for purposes of this Agreement. Springboard shall not be required to provide hosting services for any software, applications, content, components or third party products or services, other than the Services, unless otherwise specifically agreed by Springboard in writing. You may access the hosting services via your Account. You shall be required to manage, provide access to, and grant user credentials to your Authorized Users so they may access Your Content as you desire. You represent and warrant that during the Term:  (a) you shall not (and shall ensure that no third party or Authorized User) accesses, uses, submits or uploads content to the Services other than as permitted under the terms and conditions of this Agreement;
      (b) you shall obtain and maintain all rights, licenses, authorizations and consents necessary for you to upload and make Your Content available to your Authorized Users via the Services and for Springboard to host, display and make  available Your Content to Authorized Users;
      (c) no content you upload shall interfere with the Services or Springboard’s networks or contain any viruses, harmful components, worms, trap doors, back doors, timers, time bombs, authorization codes, or other devices designed to access, modify, interfere or disrupt the use of the Services; and
      (d) the submission, uploading and/or making available of Your Content to Authorized Users via the Services does not violate any contracts, agreements or any applicable laws. You are solely responsible for all of content that you submit, upload and/or make available via the Services.
  1. Your Obligations. In addition to any other obligations set forth herein, you shall:
    (a) provide Springboard with a copy of your name/logo in a format suitable to Springboard if you want Springboard to display your name and/or logo within the Springboard Client, and you grant Springboard a license to use the name and/or logo in this manner during the Term of this Agreement;
    (b) ensure that you and your Authorized Users comply with this Agreement;
    (c) be liable for any breach of this Agreement by you or your Authorized Users;
    (d) ensure that, for any Data you collect and provide to Springboard, you have the right to share such Data with Springboard for its intended purposes in accordance with your privacy policy;
    (e) ensure that the use of Your Content in connection with the Services and any Authorized User does not violate any applicable laws, rules or regulations (including any laws regarding content and age rating, and the export of data or software to and from all relevant countries) or infringe on the intellectual property rights of any third party;
    (f) obtain and maintain all necessary rights, licenses, permissions and clearances in order to make Your Content available via the Services and to your Authorized Users;
    (g) ensure that you own or have valid licenses to use, upload and make available to Authorized Users any of Your Content accessed via devices of Authorized Users.

  2. Restrictions. You shall not, and you shall not permit any Authorized Users or any other person to, access or use the Services or Springboard Materials except as expressly permitted by this Agreement. For clarity and without limiting the generality of the foregoing, you shall not, except as this Agreement expressly permits:
    (a) sell, distribute, lease, lend, market, license, sublicense, or otherwise grant to any person or entity any right to use the Services or Springboard Materials;
    (b) decompile, disassemble, reverse-engineer, modify, adapt, tamper with, 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 Springboard Materials, including any copy thereof;
    (d) bypass or breach any security device or protection used by the Services or Springboard Materials or access or use the Services or Springboard Materials other than by an Authorized User through the use of his or her own then valid access credentials;
    (e) input, upload, transmit or otherwise provide to or through the Services or Springboard Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any malicious, disruptive, or harmful code;
    (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Springboard’s Systems or Springboard’s provision of Services to any third party, in whole or in part;
    (g) access or use the Services or Springboard 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 Springboard customer), or that violates any applicable law;
    (h) access or use the Services or Springboard Materials for purposes of competitive analysis of the Services or Springboard Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Springboard’s detriment or commercial disadvantage; or
    (i) otherwise access or use the Services or Springboard Materials beyond the scope of the authorization granted under Section 3.

  3. Third-Party Services. You acknowledge and agree that the use and access of the Service may require Third-Party Services to operate or integrate with the Service and that you, at your sole cost and expense, are solely responsible for the acquisition and maintenance of such Third-Party Services, including without limitation, Internet connections. You acknowledge and agree that your failure to obtain any applicable Third-Party Services may result in you not being able to use or access the Services or the Springboard Materials. You shall comply with those applicable Third-Party Services licenses, terms of use, and conditions. Any acquisition or use of such Third-Party Services, and any exchange of Data between you and any Third-Party Service, product or service is solely between you and the applicable third-party provider. As between you and Springboard, your sole remedy with respect to such Third-Party Services shall be with the third-party provider. You acknowledge and agree that some Third-Party Services may be made available through the Service.

SPRINGBOARD DOES NOT  WARRANT 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 SPRINGBOARD 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.

  1. Springboard’s Responsibilities. In addition to any other obligations set forth herein, Springboard shall be responsible for the following.

    • Services. Springboard will provide commercially reasonable efforts to enable the Services to be accessible to you pursuant to this Agreement, except for any: (a) planned downtime of the Services; and (b) any unavailability cause by circumstances beyond Springboard’s control, including for example, a Force Majeure Event, Internet service provider failure, or delay, or denial of service attack, or any unavailability of any Third-Party Services.
    • Support. If you have technical questions about the use of the Services during the term of this Agreement, please contact us at [email protected] and Springboard will provide commercially reasonable assistance during its normal hours of operation. Some support may require Springboard to assist you by accessing your account or by using a remote access tool to access your computer(s). To the extent additional non-standard or specialized support or additional training is required, such services may be subject to a fee at Springboard’s then-current hourly rates.
    • Springboard shall track, monitor and collect certain information related to use of the Services, including Authorized Users’ use of content and the Services (“Usage Information”). Certain Usage Information and analytics will be made available to you via the Platform.
  2. Changes. Springboard reserves the right, in its sole discretion, and at any time, with or without notice, to make any changes to (or cease offering) the Services and Springboard Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Springboard’s Services to its customers; (ii) the competitive strength of or market for Springboard’s Services, or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law, rules, regulations, or orders. For the avoidance of doubt, such changes may include the modification, addition or discontinuance, temporarily or permanently, of any feature associated with the Services.

  3. Springboard shall not charge you a fee for participating in the early access testing or for hosting during the early access term. You shall be responsible for any fees for any Third-Party Services or Your Content that you elect to use in connection with the Services.

  4. Proprietary Rights and Other Licenses.

    • Reservation of Rights. This Agreement does not convey to you title or ownership of the Services or any Springboard Materials, but only a limited right to use the same in accordance with the express terms of this Agreement. No other rights, express or implied, are granted herein. Springboard owns and reserves all rights, title, and interest in and to the Services, Usage Information and Springboard Materials, including all related intellectual property rights and proprietary rights therein (other than personally identifiable information). You and your Authorized Users shall treat any Springboard 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 Springboard Materials made available to you.
    • Feedback. For any feedback that you or any of your agents or employees provide to Springboard, 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 Springboard, or the Springboard Materials, shall vest solely with Springboard, and you agree to assign and do hereby assign all such Improvements to Springboard without any additional consideration or contribution or acknowledgement.
    • Use of Your Name and Statements. You grant Springboard a fully-paid up, perpetual, transferable worldwide license to list your name for promotion, trade, commercial, advertising, and publicity purposes, including listing you as a present or past customer (as applicable) of Springboard (and its successors and assigns) in any and all media now known or hereafter discovered without notice, review or approval and without additional compensation.
    • Use of Your Data. In addition to the other rights to use Data as set forth herein, you grant Springboard a fully paid, perpetual, transferable worldwide license to: i) use Data uploaded by you (and Authorized Users) to the Platform for purposes of providing the Services; and ii) generate, publish and otherwise utilize aggregate and/or anonymized information about any Data relating to you, your Authorized Users, and end users, (collectively "data subjects"), obtained as a result of this Agreement.
  5. Confidentiality.

    • You agree to maintain the confidentiality of Springboard’s Confidential Information. For purposes of this Agreement, the term “Confidential Information” means all confidential portions of the Services and Springboard Materials and any other trade secrets, know-how, business operations, processes, software, plans, strategies, and customers that are not publicly known. You acknowledge and agree that a breach of any confidentiality or proprietary rights provision of this Agreement may cause Springboard irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, Springboard 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.
    • 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 this Agreement is intended to conflict with or limit the immunity under 18 U.S.C. § 1833(b).
  6. Data

    • Data Safeguards. Springboard will maintain commercially appropriate administrative, physical and technical safeguards to protect collected Data, including personal information and communications, according to its stated Privacy Policy, which is incorporated herein by reference.
    • European Union Data Protection. If you are located in the European Union ("EU") or the European Economic Area ("EEA"), transfer of personal customer data outside of the EU or EEA is regulated by certain EU data protection laws. The EU Model Clauses are standardized contractual clauses used to ensure that personal data leaving the EEA will be transferred in compliance with these laws. Please be advised that Data, including personal customer data, may be transferred to, processed, maintained or stored on servers or databases by Springboard or third-party service providers outside of the EU or EEA. Springboard agrees and you agree to the terms of the Data Processing Agreement attached hereto as Exhibit A, which includes the EU Model Clauses.
  7. Disclaimers and Limitation of Liability.

    • DISCLAIMERS. SPRINGBOARD’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND THIRD-PARTY SERVICES UTILIZED BY YOU AND SPRINGBOARD IS NOT RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOUR USE OF THE SERVICES OR ANY ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. EXCEPT FOR ANY WARRANTIES BY SPRINGBOARD EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND SPRINGBOARD MATERIALS 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 SPRINGBOARD NOR ANY PERSON ASSOCIATED WITH SPRINGBOARD MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SPRINGBOARD SERVICES OR SPRINGBOARD MATERIALS. WITHOUT LIMITING THE FOREGOING, NEITHER SPRINGBOARD OR ANY PERSON ASSOCIATED WITH SPRINGBOARD MAKES ANY STATEMENT, WARRANTY, OR REPRESENTATION THAT THE FEATURES AND FUNCTIONS CONTAINED IN THE SPRINGBOARD SERVICES OR SPRINGBOARD MATERIALS WILL MEET YOUR SPECIFIC REQUIREMENTS OR EXPECTATIONS OR THAT THE OPERATION OF THE SPRINGBOARD SERVICES OR USE OF THE SPRINGBOARD MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE OR INTEROPERABLE OR COMPATIBLE WITH OTHER SOFTWARE OR SERVICES, THAT DEFECTS WILL BE CORRECTED, THAT THE SPRINGBOARD SERVICES OR SPRINGBOARD MATERIALS WILL BE UPDATED, UPGRADED OR IMPROVED, THAT THE SPRINGBOARD SERVICES, SPRINGBOARD MATERIALS, OR SPRINGBOARD SYSTEMS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SPRINGBOARD 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 SPRINGBOARD OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY EXPRESS WARRANTIES MADE BY SPRINGBOARD IN THIS AGREEMENT.
    • LIMITATION OF LIABILITY. IN NO EVENT WILL SPRINGBOARD OR ANY OF ITS EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS 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; OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES (INCLUDING SUCH LOSSES IDENTIFIED IN (A) – (C) 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 SPRINGBOARD AND ITS EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY YOU TO SPRINGBOARD DURING THE TWELVE (12) 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, YOUR AUTHORIZED USERS, OR END USERS.
  8. Indemnification. You shall indemnify, defend, and hold harmless Springboard and its affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Springboard Indemnitee”) from and against any and all claims, obligations, losses, damages, liabilities, fines, costs, and expenses (including attorney’s fees) arising out of, related to, or incurred as a result of, or in connection with (a) you or your Authorized Users’ breach of this Agreement; or (b) any third-party claim, action or demand arising out of or related to any act or omission by you, your employees, or your Authorized Users’ or breach of any representation, warranty, covenant, obligation or duty under this Agreement. For any proceedings or indemnity matters, Springboard shall have the right to assume full control of the defense, including any settlement negotiations, with counsel of its own choosing.

  9. Termination.

    • Termination. In addition to any other express termination right set forth elsewhere in this Agreement: (a) Springboard may terminate this Agreement for any reason upon written notice to you; or (b) you may terminate this Agreement upon written notice to Springboard, and provided that in each case such termination shall not relieve you of your requirement to pay any amounts due and owing and nothing shall be refunded or prorated for any prepayments made by you unless required by law.
    • Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, all licenses and rights granted to you shall immediately terminate and you shall cease all use of any Services and Springboard Materials. Springboard, in its sole discretion, may disable all your and your Authorized Users’ access to the Services or delete all Data associated with you, your Authorized Users, and end users.
  10. Notices. (a) To Springboard. Notices to Springboard in connection with this Agreement 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. Any notices or communications to Springboard under this Agreement shall be deemed delivered: (i) on the delivery date if delivered personally to the Springboard; ii) two (2) business days after deposit with a commercial overnight courier, with written verification of receipt; (iii) five (5) business days after the mailing date, if sent by certified or registered mail with return receipt requested; or (iv) upon delivery to you of a confirmation or acknowledgement email from Springboard if your notice was sent by email. (b) To you. Notices to you may be sent either to the email address or physical address supplied by you as part of your registration process or as updated by you. In addition, Springboard may send broadcasts or messages, as applicable, 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 16 to the extent permitted by applicable law. Any notices or communications to you under this Agreement will be deemed delivered: (i) on the delivery date if delivered personally to you; (ii) two (2) business days after deposit with a commercial overnight courier, with written verification of receipt; (iii) five (5) business days after the mailing date, if sent by certified or registered mail with return receipt requested; (iv) on the delivery date if transmitted by email; or (v) three (3) days after Springboard posts a notice or broadcast within the Services. By using the Services, you consent to receiving electronic communications from Springboard relating to your account and subscription.

  11. Successors and Assigns. You shall not assign or delegate any of your rights or obligations under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 17 is void. This Agreement is binding upon the parties hereto and their respective representatives, successors, and permitted assigns.

  12. Force Majeure. In no event will Springboard be liable or responsible to you, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond Springboard'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. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.

  13. Interpretation. For purposes of this 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 Agreement as a whole. The parties intend this 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 Agreement are for reference only and do not affect the interpretation of this Agreement.

  14. 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 shall not be affected and will continue in full force and effect.

  15. Governing Law and Venue. This 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 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 irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.

  16. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its actual attorneys' fees and court costs from the non-prevailing party.

  17. Export Regulations. Springboard 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 Springboard harmless from any loss, damages, liability, or expenses incurred by Springboard as a result of your failure to comply with any export regulations or restrictions.

  18. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

  19. Entire Agreement, Modification, Waiver.

    • Entire Agreement. This Agreement, including agreements and policies incorporates by reference, constitutes the full understanding of your agreement with Springboard regarding the early access testing and replaces all prior agreements, discussions, or understandings, express or implied, concerning this subject matter.
    • Modifications. Except as otherwise indicated herein, no modification of this Agreement shall be effective unless agreed to in writing by the parties.
    • 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 Agreement, no failure to exercise or delay in exercising any rights, remedies, powers, or privileges arising from this 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.
  20. Survival. The rights and obligations set forth in Sections 2, 4-6 and 10-28 shall survive the expiration or termination of this Agreement.

  21. Arbitration Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause.Any and all controversies, disputes, demands, counts, claims, or causes of action between you and Springboard or its successors or assigns 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 Springboard must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR SPRINGBOARD MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) 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; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Springboard 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; (4) Springboard also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) 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; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) 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.

  1. Digital Millennium Copyright Act

28.1. We respect the intellectual property rights of others. It is our policy to respond to any claim that content posted on the Service infringes on the copyright or other intellectual property rights of any person or entity. If you are a copyright owner or an agent thereof and believe that any content on the Services infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):

Written notification of claimed infringement must be submitted to the following Designated Agent:

Name and Address of Designated Agent: Ruth Chapman

Attention: SpringboardVR

Email Address of Designated Agent[email protected]

28.2. If you believe that your content (which was removed or to which access was disabled) is non-infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, to make such content available to Springboard for use on the Services, you may send a counter-notice containing the following information to our Copyright Agent:

If a counter-notice is received by our Copyright Agent, Springboard may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or the User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Springboard’s sole discretion.

Please note that you may be held accountable for damages (including costs and attorneys' fees) for misrepresentation or bad-faith claims on the infringement of any content found on and/or through the Service on your copyright.

Springboard may enforce its policy to terminate the accounts of repeat infringers.

EXHIBIT A

DATA PROCESSING AGREEMENT

(Enterprise)

This Data Processing Agreement, which includes the EU Model Clauses is an integral part of the Early Access Testing Agreement ("Agreement") between you ("you" or "data exporter") and Springboard Virtual Reality, Inc. ("Springboard" or "we" or "us" or "data importer"), (each a "party" and collectively the "parties") and is made effective on the date on which you accepted the Agreement.

The mutual agreement by Springboard and you to the terms of this Data Processing Agreement is evidenced by (i) your online acceptance of the Agreement by your authorized representative, and (ii) your use of Springboard's Service Software and Services after an update to the Agreement incorporating this Data Processing Agreement. You are responsible for compliance with the particular national requirements of its EU member state. You may be required to take additional steps for compliance including but not limited to notifying the data protection authority of transfers of data or notifying said authority of the existence of this Data Processing Agreement. Should you require a separately signed copy of the Data Processing Agreement, you must submit an online service request to Springboard customer support.

Data, including personal customer data, may be transferred to, processed, maintained or stored on servers or databases by Springboard or third party service providers outside of the EU or EEA.

Springboard agrees and you agree to the terms of the Data Processing Agreement as follows:

Definitions

For the purposes of the clauses:

  1. “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Directive 95/46/EC of 24 October 1995 (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
  2. “the data exporter” shall mean the controller who transfers the personal data;
  3. “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
  4. “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.

The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.

Obligations of the data exporter

The data exporter warrants and undertakes that:

  1. The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
  2. It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
  3. It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
  4. It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
  5. It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.

Obligations of the data importer

The data importer warrants and undertakes that:

  1. It will have in place appropriate technical and organizational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
  2. It will have in place procedures so that any third party it authorizes to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorized or required by law or regulation to have access to the personal data.
  3. It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
  4. It will process the personal data for purposes described in Annex B, and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
  5. It will identify to the data exporter a contact point within its organization authorized to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
  6. At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
  7. Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
  8. It will process the personal data, at its option, in accordance with:
  9. the data protection laws of the country in which the data exporter is established, or
  10. the relevant provisions of any Commission decision pursuant to Article 25(6) of   Directive 95/46/EC, where the data importer complies with the relevant provisions of such an authorization or decision and is based in a country to which such an authorization or decision pertains, but is not covered by such authorization or decision for the purposes of the transfer(s) of the personal data, or
  11. the data processing principles set forth in Annex A.

Data importer selects option: Annex A

Initials of data importer:  SpringboardVR

  1. It will not disclose or transfer the personal data to a third party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and
  2. the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
  3. the third party data controller becomes a signatory to these clauses or another data transfer agreement approved by a competent authority in the EU, or
  4. data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
  5. with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer

Liability and third party rights

  1. Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
  2. The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(b), I(d), I(e), II(a), II(c), II(d), II(e), II(h), II(i), III(a), V, VI(d) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).

Law applicable to the clauses

These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.

Resolution of disputes with data subjects or the authority

  1. In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
  2. The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
  3. Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.

Termination

  1. In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
  2. In the event that:
  3. the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
  4. compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
  5. the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
  6. a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
  7. a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occurs then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.
  8. Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
  9. The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.

Variation of these clauses

The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.

Description of the Transfer

The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(e). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.

EXHIBIT A, ANNEX A

DATA PROCESSING PRINCIPLES

Purpose limitation

Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorized by the data subject.

Data quality and proportionality

Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.

Transparency

Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.

Security and confidentiality

Technical and organizational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.

Rights of access, rectification, deletion and objection

As provided in Article 12 of Directive 95/46/EC, data subjects must, whether directly or via a third party, be provided with the personal information about them that an organization holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organizations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organization may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.

Sensitive data

The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.

Data used for marketing purposes

Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.

Automated decisions

For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:

  1. a. such decisions are made by the data importer in entering into or performing a contract with the data subject, and
  2. the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties.

or

  1. where otherwise provided by the law of the data exporter.

EXHIBIT A, ANNEX B

DESCRIPTION OF THE TRANSFER

**Data subjects **The personal data transferred concern the following categories of data subjects: 
you and your Authorized Users, customers, employees, contractors, or agents (collectively “users”).

Purposes of the transfer(s) 
Transfers are made for the following purposes:

Categories of data 
The personal data transferred concern the following categories of data about you, your Authorized Users and end users, and about their use of our Services, including information by which they may or may not be personally identified, such as:

We may use cookies and other technologies (e.g. web beacons) for various reasons.

Recipients 
The personal data transferred may be disclosed only to the following recipients or categories of recipients:

Sensitive data (if appropriate) 
The personal data transferred concern no sensitive data.

Data protection registration information of data exporter (where applicable)

Data protection registration information will be provided by you to Springboard separately.

Additional useful information (storage limits and other relevant information)

You shall have sole responsibility for responding to inquiries from data subjects concerning the data subject's (1) right to know what information is being maintained on them, (2) right to reasonably access that information, (3) the right to challenge mistaken information, and (4) the right to object to the processing and disclosure of their data. Springboard shall, to the extent legally permitted, notify you if Springboard receives an inquiry from a data subject in regard to the same.

Contact points for data protection inquiries

Data protection inquiries to Springboard should be directed to [email protected]. You shall provide contact information upon request.