Last Updated: August 4, 2023
ArborXR Terms of Service
- Introductions, Acceptance and Effective Date. This ArborXR Terms of Service (the “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 U.S.A. (“ArborXR” or “we” or “us” or “our”), and the individual or entity accepting the Terms, electronically or by signature, (“Customer”, “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 the Terms which are effective as of the earlier of the date that you first clicked the “I Accept” to the Terms, otherwise accepted the Terms, or gained initial access to or use our Services (“Effective Date”).
By accepting the Terms, you acknowledge and agree that: (a) you are at least 16 years of age (or the minimum age in your jurisdiction for entering into a binding contract); (b) you have read and understand the Terms; (c) you are legally bound to the Terms and any other agreements or policies incorporated herein by reference; (d) you have the authority to accept the Terms on behalf of yourself as an individual or on behalf of the entity that you represent; and (e) your use of the Services does not violate any law, rule or regulation or terms and conditions or requirements to which you are subject. If you are accessing the Services on behalf of an entity for which you are an Authorized User (e.g., as an employee, contractor, or customer) and that entity has executed a separate version of the Terms that applies to the entity and its Authorized Users (“Entity Terms”), then the Entity Terms shall govern your access to and use of our Services. You may request a copy of the Entity Terms from such entity.
IF YOU DO NOT AGREE TO THE TERMS OR HAVE THE AUTHORITY TO BIND THE ENTITY YOU REPRESENT TO THE TERMS, YOU CANNOT USE THE ARBORXR SERVICES.
YOU FURTHER UNDERSTAND THAT THE TERMS CONTAIN AN ARBITRATION PROVISION CONTAINING A CLASS ACTION WAIVER, WHICH SHALL BE ENFORCEABLE AGAINST YOU UNLESS CONTRARY TO GOVERNING LAW.
As used in the Terms, the following capitalized terms have the following meanings:
“Authorized User” means an individual who has created a User Account, accepted the 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 Web Dashboard, Client Application, Home Application, and Setup Application, and all new versions, updates, revisions, improvements and modifications thereof.
“Customer” means you or, if you represent an entity, the entity that has created a User Account, accepted the Terms, and owns the Subscription to the Services.
“Customer Data” means any and all data in any form that is furnished or made available by or on behalf of Customer to ArborXR, that is input by or on behalf of Customer into the Services, or otherwise collected through Customer’s use of the Services. For clarity, Customer Data does not include Resultant Data.
“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.
“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 accesses and uses the Services on behalf of, by permission of, under the control, direction or management of, or as another proximate cause of any action of the Customer, including any of the Customer’s violation of the Terms.
“Fee” means the fee you pay to ArborXR for purchased Services made available during a Subscription Term.
“Force Majeure Event” means any circumstances beyond ArborXR’s reasonable control which affects its provision of the Services including without limitation internet service provider failures, service interruptions by third-party providers, denial of service attacks, acts of God, war, terrorism, riot, fires, floods, epidemics, failure of public utilities or public transportation systems, or national or regional shortage of adequate power or telecommunications systems.
“Materials” means ArborXR’s Software, Documentation, Systems, 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 Services (other than Third-Party Services or Non-ArborXR Content).
“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.
“Non-ArborXR Content” means the extended reality applications and games, 360º video, interactive tools, training and/or any related educational materials, other content, information or postings which are not developed by ArborXR, including such which any Users submit, upload, transmit, manage and/or make available via the Services.
“Personal Data” shall mean Customer Data that identifies, relates to, describes, is capable of being associated with, could reasonably be linked to, directly or indirectly, with a particular individual or household.
“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.
“Resultant Data” shall mean any presentation or manifestation of data elements in an aggregated, statistical, or summary format created, developed, or produced by ArborXR using the Customer Data, including, without limitation, following ArborXR’s aggregation, integration, or combination of Customer Data with data proprietary to ArborXR or any third party. For greater clarity, the Resultant Data must be at a sufficient level of abstraction such that none of the data elements contained in the original Customer Data (including any Personal Data) can be determined solely through an analysis of the Resultant Data.
“Services” means the services, products, Systems, Software, Materials, Website, and support made available to you with or without a Subscription that are developed, operated, provided, delivered, supplied, or maintained by us.
“Software” means all the software and/or applications made available by ArborXR, including all cloud-based software, the Platform, the Client Software, and all new versions, updates, revisions, improvements and modifications thereof.
“Subscription” means the tiered offerings of specified Services provided by ArborXR on a subscription basis for a specified period of time.
“Subscription Term” means the period of time for which you have access to specified Subscription, beginning on the Subscription Start Date and ending on the Subscription End Date including any renewal periods unless the Subscription or the Terms are sooner terminated according to the Terms.
“Subscription Start Date” means the date you are given access to the Services.
“Subscription End Date” means the date that your access to the Services ends in accordance with the Subscription you have selected.
“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.
“User” means any user of the Services, including Customer, Authorized Users, and End Users.
“User Account” means an account for the Services created by an Authorized User which includes a username and password combination, in addition to other requested or pertinent information, which also includes the information relating to any utilization of an authentication method (such as single sign-on) or service provider we recognize and have approved.
“Website” means ArborXR’s website, https://www.arborxr.com, and all corresponding or associated domains, subdomains, web pages and websites.
- The Services.
3.1 Access and Use. ArborXR will provide access to and use of the Services to you solely for your personal, non-commercial use pursuant to 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 in accordance with the Terms. Services are available subject to our sole discretion and, in some cases, may be limited based on region. Customer acknowledges that each of its Users must agree to the Terms prior to use of the Services and that Customer will be responsible for ensuring compliance by each of its Users with the Terms and for any breach of the Terms by its Users. 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 the Terms.
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 the 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. For the purpose of the Terms, No-Charge Services will be considered a Subscription with no charge, with a Subscription Term beginning on your access to such No-Charge Services and ending on the termination of such No-Charge Services.
3.3 Add-ons. ArborXR may make certain additional services, capacity, enhancements, features, or other elements available to you for purchase (“Add-on”) on a per Device basis or for a 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 will be deemed part of the Services and are subject to the Terms, as updated from time to time, unless otherwise mutually agreed to in writing.
3.4 Changes to the Services. We will occasionally provide automatic upgrades or make modifications to the Services 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. We reserve the right to make changes with or without notice to you. These changes may not be consistent across all devices and may include the addition or discontinuance of a feature or functionality.
4.1 Service License. Subject to and conditioned on your compliance with the Terms, ArborXR grants you a non-exclusive, non-transferable, non-sublicensable, limited license during the Subscription Term to access, install and use the Services solely for the purposes of managing your Users’ Devices and making Non-ArborXR Content available to your Users.
4.2 Client Software License. Subject to and conditioned on your eligibility to use the Services and compliance with the Terms, ArborXR grants you a personal non-exclusive, non-transferable, non-sublicensable, limited license during the Subscription Term to download, access and use copies of the Client Software the purposes of managing your Users’ Devices and making Non-ArborXR Content available to your Users.
4.3 Non-ArborXR Content. As between you and ArborXR, we acknowledge and agree that you or your Users maintain all rights, title and interest in and to any Non-ArborXR Content that you or they submit to the Services. You warrant and represent that you or your Users either own or have the right to provide all Non-ArborXR Content that you or they submit to the Services. By submitting, uploading, managing and/or making available the Non-ArborXR Content through the Services, you and your Users hereby grant to ArborXR a worldwide, non-exclusive license in and to the Non-ArborXR Content solely to: copy, transmit, perform, display, modify (solely for formatting purposes), capture, translate, host, distribute, make available and use the Non-ArborXR Content solely in connection with the provision of the Services, subject to the terms of this Terms. You are solely responsible for any Non-ArborXR Content that you or your Users submit, upload, manage, and/or make available via the Services. In no event shall we be responsible for the use or misuse of any Non-ArborXR Content by you, Users, or any unauthorized use of the Non-ArborXR Content by a third party. ArborXR reserves the right to exclude or remove any Non-ArborXR Content that we, in our sole discretion, determine to be prohibited by the Terms.
4.4 Non-ArborXR Content Hosted by ArborXR. Subject to and conditioned on your compliance with the Terms, ArborXR grants you a non-exclusive, non-transferable, non-sublicensable, limited license during the Subscription Term to upload Non-ArborXR Content to our 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 your Users) access, use, submit or upload Non-ArborXR Content to the Services only as permitted by the Terms and the applicable Materials; and (b) you shall obtain and maintain all rights, licenses, authorizations and consents necessary for you to upload and make the Non-ArborXR Content available to your Users via the Services and for ArborXR to host, display and make available the Non-ArborXR Content to your Users. You understand and agree that 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.
4.5 Non-ArborXR Content Hosted by Customer. Customer may host all or part of its Non-ArborXR Content on Customer’s own hosting system, provided that Customer’s hosting system is compatible with an API supported by ArborXR. Customer shall provide ArborXR with reasonable notice of its intent to transfer its Non-ArborXR Content from ArborXR’s hosting system to Customer’s own system, as well as a reasonable amount of time to coordinate and then conduct such transfer. If ArborXR terminates the Terms for cause, such notice period will be waived. The Parties shall determine the terms and timeframe for ArborXR’s delivery of Non-ArborXR Content in its possession to Customer, and ArborXR’s assistance necessary for an orderly transition of the Non-ArborXR Content from ArborXR’s hosted environment to Customer’s systems.
5.1 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, specified on your billing page accessible through your User Account dashboard, or otherwise made available to you.
5.2. Subscription Term and Renewals. The Subscription Term for paid Services begins on your Subscription Start Date and ends on the Subscription End Date, unless sooner terminated in accordance with the Terms. Paid Subscriptions automatically renew for successive periods unless cancelled or terminated. Fees for a renewed paid Subscription will be charged at the then-current Subscription plan rates. If you canceled your paid Subscription according to these Terms or in another manner recognized and approved by us, it will not renewed, and 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. 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.
5.3. Cancellation. You may choose not to renew your Subscription by canceling your Subscription for any reason at any time without notice to us. 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, full access to the Services will remain available to you until your Subscription Term has expired or is terminated according to the Terms.
- Fees and Payments.
6.1 Fees and Adjustments. The Fee for Services is based upon the selected Subscription plan, a price per Device per month or year, the number of specified Devices, charges for Add-ons, and any applicable additional charges or credits. The Fee may be adjusted during the Subscription Term, on a prorate basis, if you add Devices, upgrade or downgrade the Subscription plan, subscribe to Add-ons, or become subject to any credit or additional charge. Fee adjustments will be made in a reasonable timely manner by issuing an invoice applying the prorated credits or charges to Customer’s account as applicable.
6.2 Payment. Payment of Fees will be made against invoices presented to you and you are responsible for payment. You must make payment directly to ArborXR. Invoices are due and payable immediately upon presentation in the currency of the United States, and all Fees are non-refundable and non-cancellable. If you are paying for your Subscription through an intermediary authorized and approved by ArborXR to receive such payment, you must follow strict adherence to whatever agreed method you have made with such intermediary and accept all possible risks that such intermediary fails to forward such payment timely to ArborXR, in which case we may immediately take any action concerning the Services or your Subscription as provided in Section 6.4.
6.2.1 Payment by Credit Card. If paying by credit card, you authorize ArborXR to charge the Fees payable to the credit card or bank account designated for payment by you. You also authorize ArborXR to use third-party payment processors and consent to the disclosure of billing information, if applicable.
6.2.2 Payment by ACH. If paying by ACH, you authorize ArborXR or our designated payment processor to store necessary bank account information and other required information, and to conduct automatic debits of the 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 the designated bank account immediately.
6.3 Disputed Fees. If you dispute any Fees charged 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.
6.4 Unpaid Fees. In the case we do not receive 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 with the information already provided to ArborXR, (b) suspend or otherwise limit your access to the Services until the matter is resolved, or (c) terminate the Terms.
6.5 Taxes. All Fees stated in any 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 an 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 applicable tax registration number(s).
- Term and Termination.
7.1 Term. The Terms are effective on the Effective Date and shall continue for the period that a Subscription is in effect, unless sooner terminated in accordance with this Section.
7.2 Termination for Cause. In addition to any right to termination provided elsewhere in the Terms, either Party may terminate the Terms upon written notice to the other Party, if the other Party: (i) materially breaches the Terms, effective upon thirty (30) day’ written notice to the other Party, unless the breach is cured within such thirty (30) day period, or effective immediately if the breach cannot be cured; (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 the 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. If any intermediary is involved with your access or management of any of the Services, you agree that any action or inaction of such intermediary described in this Section will be imputed upon you, which will grant us all rights and remedies available to us as if you had committed such action or inaction.
7.3 Termination for Convenience. You may stop using our Services and terminate the Terms for any reason at any time without notice to us by deleting the relevant organization associated with your User Account. ArborXR may terminate the Terms for any reason upon thirty (30) days’ written notice to you.
7.4 Effect of Termination or Expiration. Upon termination of the Terms or expiration of your Subscription, your access to the Services shall terminate, and all licenses and rights granted in the Terms shall immediately terminate. You and your Users shall stop all use of the Services. ArborXR, in its sole discretion, may disable all your and your Users’ access to the Services, delete all Customer Data associated with you, your Users, and delete or disable access to any Non-ArborXR Content uploaded by you and your Users. Upon termination or expiration of the 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.
7.5 Suspension. ArborXR may, in its sole discretion, suspend any User’s access to our Services without notice if ArborXR has a reasonable belief any of your Users have caused or is likely to cause, in its sole discretion, any of the following: (a) non-payment of Fees; (b) a material breach of the Terms; (c) violated any acceptable use or restriction related to the Services; or (d) otherwise engaged in an action which is likely to harm or negatively affect us or our existing or prospective users. We will work with you to promptly and in a reasonable manner resolve the issue causing the suspension, however nothing in this Section limits our right to terminate for cause as set for in these Terms.
- Your Responsibilities.
8.1 User Account. In order to register for a User Account, you must be at least 16 years of age or the minimum age in your jurisdiction for entering into a binding contract and register all information requested by ArborXR to create a User Account. 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.
8.2 Unauthorized Access and Account Security. You shall take reasonable steps to prevent unauthorized access to the Services, including without limitation, keeping all User Account information (including usernames and passwords) 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 commercially reasonable 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.
8.3 Responsibility for Users. You are responsible for the use of the Services by you and any User 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 Customer Data is subject to the Terms and relevant policies. You must not let a User access or use the Services if they do not agree to be bound by the Terms and relevant policies. You are responsible for your Users’ compliance with the Terms and the relevant policies and for ensuring that the transfer and processing of Customer Data under the Terms is lawful.
8.4 Acceptable Use. You are responsible for the acceptable use of the Services by your Users and any unlawful or harmful activities are expressly prohibited. You agree that, while using the Services, your Users 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, 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, 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, including any copy thereof;
(d) attempt to gain unauthorized access to the Services, or bypass or breach any security device or protection used by the Services;
(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 or ArborXR’s provision of Services to any third party, in whole or in part;
(h) access or use the Services 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 Customer 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 for purposes of competitive analysis of the Services, 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 beyond the scope of the licenses or authorizations granted under these Terms.
(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.
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 8.4 including, without limitation, reporting a violator to law enforcement authorities or cooperating with law enforcement who validly request information from us.
8.5 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.
8.6 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. 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.
8.7 Digital Millennium Copyright Act. In the use of our Services, you are responsible for complying with the Digital Millennium Copyright Act (“DCMA”). If you believe your intellectual property rights may have been violated under the DMCA, you agree to follow the steps provided below. ArborXR, in appropriate circumstances and in our sole discretion, may suspend or terminate the access to Services by any user who violates the DMCA.
If you are a copyright owner, or an agent of a copyright owner, and believe that any content infringes upon your copyrights, you may submit a notification pursuant to DMCA by emailing our DMCA Agent at [email protected] with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site, (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
For clarity, only DMCA notices should go to the DMCA Agent and not any other feedback, comments, requests for technical support, or other communications. You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.
If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice containing the following information to our DMCA Agent: (a) your physical or electronic signature; (b) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (c) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (d) your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal courts in Delaware, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by our DMCA Agent, ArborXR 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 ten (10) business days. Unless the copyright owner files an action seeking a court order against the party that provided the content or the user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at ArborXR’s sole discretion.
- ArborXR Responsibilities.
9.1 Availability of Services. We will use commercially reasonable efforts to make the Services available to you twenty-four (24) hours a day, seven (7) days a week, except for planned downtime, unavailability of the Services beyond our control, including for example, a Force Majeure Event or any unavailability of third-party services that we use to provide the Services or other Third-Party Services. Notwithstanding anything to the contrary in the Terms, ArborXR’s obligations extend only to those Services over which ArborXR exercises control. The Services are designed to operate on third party hardware which may include third party software. If a third party makes changes to its hardware or software, that may impact the ability for the Services to operate, in part or in whole. You acknowledge that if any third party (e.g. a hardware provider) makes any such change that impact the Services on that hardware, ArborXR shall not be deemed to be in breach of this Agreement and shall have no liability to you for any losses or harm occasioned by such events.
9.2 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.
- Intellectual Property Rights; Other Licenses.
10.1 Reservation of Rights. The Terms do not convey to you title or ownership of the Services, but only a limited right to use the same as expressly provided for in the 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, including all related intellectual property rights and proprietary rights therein. ArborXR shall have no liability for any loss or damage to you in any form arising from your failure to comply with these requirements.
10.2 Feedback. For any feedback that you or your Users 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, 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.
10.3 Use of Brand Features and Statements. You grant to ArborXR, upon your prior written consent, a worldwide, revocable, nonexclusive, transferable, royalty-free license during the Term, to use, display and perform, reproduce, distribute your trademarks, service marks, logos, images and other brand identifiers (“Brand Features”), and any statements or quotes provided by you, in any and all media, including but not limited to ArborXR’s website, for marketing and promotion purposes. ArborXR’s use of your Brand Features shall comply with any usage guidelines that you provide to ArborXR.
10.4 Use Customer Data. You shall own and retain all right, title and interest in and to Customer Data. You are solely responsible for any Customer Data. In no event shall we be responsible for the use or misuse of any Customer Data by you or your Users or other third parties (except for sub processors engaged by ArborXR). You warrant and represent that you either own or have the right, license or necessary consents to provide the Customer Data, and that use of the Customer Data in accordance with the Terms shall not infringe or misappropriate an intellectual property or other proprietary right of any third party. In addition to the other rights to use Customer Data as expressly set forth in the Terms, you grant ArborXR a fully paid, transferable, worldwide right and license to access and use Customer Data for the purpose of: (a) providing and improving the Services; and (b) generating Resultant Data.
10.5 Resultant Data. ArborXR shall own and retain all right, title and interest in and to the Resultant Data, together with all intellectual property rights therein and thereto, which it may possess, use or otherwise exploit for any legitimate business purpose in perpetuity.
- Third-Party Services.
Your use and access of the Services may require Third-Party Services to operate or integrate with the Services. Your failure to obtain any applicable Third-Party Services may result in you not being able to use or access our Services. ArborXR may link to or offer Third-Party Services on our Website or otherwise through the Services. If you decide to enable, access or use any Third-Party Services that requires you to accept its terms and conditions, your access and use of the Third-Party Services is governed solely by the terms and conditions of the Third-Party Services. You will comply with all terms and conditions and obtain all required permissions and consents applicable to the use of Third-Party Services. You irrevocably waive any claim against ArborXR with respect to such Third-Party Services. If you enable or use Third-Party Services, we will allow those Third-Party Services providers to access or use Customer Data relating to you or your usage as required for the interoperation of their products and services with our Services.
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. YOUR SOLE REMEDY WITH RESPECT TO THIRD-PARTY SERVICES SHALL BE WITH THE THIRD-PARTY SERVICES PROVIDER.
12.1 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 are considered ArborXR’s Confidential Information.
12.2 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.
12.3 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 the 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.
12.4 You agree that a breach of any confidentiality or proprietary rights provision of the 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.
12.5 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 the Terms is intended to conflict with or limit the immunity under 18 U.S.C. § 1833(b).
- Modification of the Terms.
- Successors and Assigns.
You shall not assign or delegate any of your rights or obligations under the 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 is void. ArborXR may freely assign and delegate its rights and obligations under the 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) (“Claims”), arising in any way out of or in connection with (a) your or your Users’ use of the Services not in accordance with the Terms or Materials provided by us, including without limitation any breach or violation of the Terms, including any representation or warranty provided within the Terms; or (b) any Customer Data or Non-ArborXR Content that you or your Users provide. 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.
In the event of any indemnifiable Claim, the indemnified party shall notify the indemnifying party of the Claim promptly after learning of such Claim. The indemnifying party shall be allowed to control the proceedings relating to a Claim, at its sole cost and expense; provided, however, that the indemnifying party may not settle any Claim without the consent of the applicable indemnified parties if such settlement admits liability on the part of such indemnified party or imposes any liability or obligation upon such indemnified party. Each indemnified party shall have the right to participate in the defense of any such suit or proceeding at its own expense through counsel of its own choosing. If the indemnifying party fails to timely undertake the defense of a Claim, each of the applicable indemnified parties shall have the right, but not the obligation, themselves to undertake, or to have another for them to undertake, the defense (including settlement) of such Claim, at the sole cost and expense of the indemnifying party.
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT WITH THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, CONTENT 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 THE 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.
- LIMITATION OF LIABILITY.
EXCEPT AS SET FORTH IN THE TERMS, 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 THE 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 OF 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 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.
- 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 the 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 OR ENTITY’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.
19.1 To ArborXR. Notices to ArborXR in connection with the 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.
19.2 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 to the extent permitted by applicable law.
19.3 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.
- Governing Law and Venue.
The 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 the 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.
- Miscellaneous/ General.
21.1 Entire Agreement. Unless otherwise expressly agreed in writing between the Parties, the 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.
21.2 Precedence. In the case of inconsistency or conflict between the provisions of the Terms, the treatment of such provision in the Supplemental Terms will control but all other provisions of the Terms shall continue to apply.
21.3 Interpretation. For purposes of the 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 the Terms as a whole. The Parties intend the 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.
21.4 Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of the 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.
21.5 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.
21.6 Relationship of the Parties. The Parties are independent contractors. The Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
21.7 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 the Terms when and to the extent such failure or delay is caused by a Force Majeure Event. ArborXR may terminate the Terms if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more.
21.8 Survival. All provisions relating to ArborXR’s proprietary rights, confidentiality, disclaimer of warranties, limitation of liability, indemnification, and any other provisions of the Terms expressly stated to survive or which by their nature extend beyond the expiration or termination of the Terms shall survive the expiration or termination of the Terms.