Meta Wearables Platform Supplement
This Meta Wearables Platform Supplement (this “Supplement”) is entered into by and between ABXR Labs, Inc. d/b/a ArborXR, a Delaware corporation (“ArborXR”), and the customer identified in the underlying ArborXR Terms of Service who accepting such Agreement exectronically or by Signature (“Customer”). This Supplement supplements, and is incorporated by reference into, the ArborXR Terms of Service in effect between the parties (the “Agreement”). This Supplement is effective as of the date Customer first enables, accesses, or uses the Meta Wearables Integration (as defined below) (the “Supplement Effective Date”). Capitalized terms used but not defined in this Supplement have the meanings given to them in the Agreement.
Recitals
WHEREAS, ArborXR offers the Services as a platform for the management, deployment, and analytics of extended reality devices and content;
WHEREAS, Meta Platforms Technologies, LLC (“Meta”) makes available the Meta Wearables Platform, including the Meta Wearables Device Access Toolkit, which permits developers to build integrated experiences with Meta-branded wearable products, including Ray-Ban Meta smart glasses, Oakley Meta smart glasses, and other Meta-approved wearable products (collectively, “Meta Wearables”);
WHEREAS, ArborXR has elected to develop and offer an optional integration enabling certain Services to interoperate with Meta Wearables (the “Meta Wearables Integration”);
WHEREAS, ArborXR’s access to and use of the Meta Wearables Platform is governed by the Meta Wearables Developer Terms (the “Meta Developer Terms”) and the Meta Wearables Developer Acceptable Use Policy (the “Meta AUP”), each as amended by Meta from time to time (collectively, the “Meta Platform Terms”);
WHEREAS, the Meta Platform Terms impose restrictions and obligations on the use of the Meta Wearables Platform and the data obtained therefrom, certain of which flow through ArborXR to Customer and Customer’s Users; and
WHEREAS, Customer wishes to enable the Meta Wearables Integration as part of Customer’s use of the Services, and the parties wish to set forth the additional terms and conditions applicable to such use.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and in the Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions
- Defined Terms. In addition to the capitalized terms defined elsewhere in this Supplement, the following capitalized terms shall have the meanings set forth below:
(a) “Meta”, “Meta Wearables”, “Meta Wearables Integration”, “Meta Developer Terms”, “Meta AUP”, and “Meta Platform Terms” have the respective meanings set forth in the Recitals.
(b) “Meta Technology Data” means any information, data, or other content that is from, about, or associated with a person, device, or unique identifier (including pseudonymized or hashed identifiers), that ArborXR or Customer obtains from or through the Meta Wearables Platform or Meta Wearables (including any data derived therefrom), whether directly or indirectly, and whether before, on, or after the Supplement Effective Date.
(c) “Minor” means any natural person under the age of eighteen (18), or such higher age as may be established under applicable law for the jurisdiction in which the person resides.
(d) “Protected Health Information” or “PHI” has the meaning given to such term in the HIPAA Privacy Rule, 45 C.F.R. § 160.103.
(e) “Sensitive Location” means any location in which the recording, capture, or transmission of audio, video, image, or sensor data without express consent would be unlawful, unethical, or contrary to a reasonable expectation of privacy, including, without limitation: (i) restrooms, locker rooms, changing rooms, and similar facilities; (ii) medical examination rooms, patient care areas, and other clinical settings; (iii) private residential spaces; (iv) classrooms or other educational facilities involving Minors; (v) financial-institution secure areas, vaults, and trading floors; (vi) government secure facilities or areas designated as classified, restricted, or controlled; (vii) industrial cleanrooms, hazardous-material areas, or other facilities in which recording is prohibited by law, regulation, or facility policy; and (viii) any other location designated as sensitive by Meta, by applicable law, or by the controlling entity of the premises.
(f) “Prohibited Use Case” means any use case set forth in Section 3.1.
2. Order of Precedence; Relationship to Agreement
2.1 Order of Precedence. In the event of any conflict or inconsistency between this Supplement and the Agreement, this Supplement shall control with respect to the Meta Wearables Integration and Meta Technology Data only. With respect to all other matters, the Agreement shall continue in full force and effect.
2.2 Relationship to Meta. This Supplement does not create, and shall not be construed to create, any direct contractual relationship between Customer and Meta. Customer’s rights and obligations with respect to Meta Wearables and the Meta Wearables Platform are derived from, and limited by, ArborXR’s rights and obligations under the Meta Platform Terms.
3. Eligibility; Prohibited Use Cases
3.1 Prohibited Use Cases. Customer represents, warrants, and covenants that Customer will not, and will not permit any User or other third party to, use the Meta Wearables Integration for any of the following purposes:
(a) Surveillance. Any surveillance use case, including the collection, use, or sharing of audio, video, image, location, biometric, or other sensor data about individuals, groups, places, or events for law-enforcement, national-security, intelligence, counter-intelligence, immigration-enforcement, or similar governmental investigative purposes;
(b) Law Enforcement and Public Safety. Use by, on behalf of, or in cooperation with any law-enforcement agency, intelligence agency, military entity, correctional facility, or similar governmental entity in connection with investigative, intelligence-gathering, or enforcement activities;
(c) Mission-Critical, Life-Saving, or Hazardous Activities. Any activity that is mission-critical, life-saving, or hazardous, including, without limitation: (i) clinical diagnosis, treatment, monitoring, or decision-support; (ii) emergency medical services or first-responder operations in active deployment; (iii) the operation of motor vehicles, aircraft, watercraft, or heavy machinery; (iv) the operation of nuclear, petrochemical, or other hazardous-material facilities; or (v) any activity in which a malfunction, latency, or interruption of the Meta Wearables Integration could reasonably be expected to result in death, serious bodily injury, or significant property damage;
(d) Protected Health Information. The creation, receipt, maintenance, transmission, or processing of any Protected Health Information, unless and until ArborXR has provided Customer with written confirmation that ArborXR has executed a Healthcare Addendum and Business Associate Agreement with Meta sufficient to authorize such use under the Meta Platform Terms, and Customer has executed a Business Associate Agreement with ArborXR;
(e) Minors. Any use of, or interaction with, Meta Wearables by, with, or directed at Minors, including any deployment in primary or secondary educational settings, except as expressly authorized in writing by ArborXR and in accordance with all applicable laws, including the Children’s Online Privacy Protection Act (“COPPA”), the Family Educational Rights and Privacy Act (“FERPA”), the General Data Protection Regulation (“GDPR”), and analogous laws of other jurisdictions;
(f) Sensitive Locations. The use of any Meta Wearables sensor (including any camera, microphone, location, or biometric sensor) or recording functionality within any Sensitive Location, including any encouragement, suggestion, instruction, or facilitation of Users to do so;
(g) Recording Without Consent. The recording, capture, or transmission of audio, video, image, biometric, or other sensor data of any individual without that individual’s express, informed, and contemporaneous consent, except as expressly permitted by applicable law and undertaken in compliance therewith;
(h) Harassment, Abuse, or Discrimination. Any use that promotes, facilitates, or constitutes harassment, abuse, intimidation, stalking, doxing, discrimination, or bullying of any individual or group;
(i) Unlawful Activity. Any activity that violates applicable law, the Meta AUP, the Meta Developer Terms, or any other applicable third-party agreement;
(j) Competitive Reverse-Engineering. Use of the Meta Wearables Integration to reverse-engineer, benchmark, or otherwise gather information about Meta Wearables, the Meta Wearables Platform, or the Services for the purpose of developing a competing product or service; and
(k) Other Restricted Uses. Any use prohibited by Section 8.4 of the Agreement, as amended by Section 8.4.A or any other amendment thereto.
3.2 No Circumvention. Customer shall not, and shall not permit any User to, take any action designed or intended to circumvent, evade, or render ineffective the restrictions set forth in this Section 3, whether through the use of multiple accounts, alternative identifiers, third-party intermediaries, technical workarounds, or otherwise.
3.3 ArborXR Eligibility Determinations. ArborXR may, in its sole discretion, determine that Customer or any User is ineligible for the Meta Wearables Integration based on Customer’s industry, intended use case, jurisdiction, regulatory status, or other risk factors. ArborXR may decline to provision, suspend, condition, or terminate Customer’s access to the Meta Wearables Integration at any time, with or without notice, and without liability to Customer.
4. Acknowledgment and Incorporation of Meta Platform Terms
4.1 Customer Acknowledgment. Customer acknowledges that: (a) Customer has been provided with, or has been afforded a reasonable opportunity to obtain and review, the Meta Platform Terms; (b) ArborXR’s ability to provide the Meta Wearables Integration is conditioned upon ArborXR’s ongoing compliance with the Meta Platform Terms; and (c) Customer’s and its Users’ use of the Meta Wearables Integration is subject to the Meta Platform Terms in addition to the Agreement and this Supplement.
4.2 Flow-Down Obligations. Customer agrees to comply with, and to ensure that each of its Users complies with, the applicable provisions of the Meta Platform Terms as if Customer were a direct party thereto. Without limiting the foregoing, Customer specifically agrees to comply with:
(a) the prohibited uses set forth in the Meta AUP;
(b) the data-use restrictions, including the prohibitions on selling, licensing, renting, or otherwise commercializing Meta Technology Data;
(c) the prohibition on processing Meta Technology Data using automated means such as harvesting bots, robots, spiders, or scrapers;
(d) the prohibition on attempting to decode, circumvent, re-identify, de-anonymize, unscramble, unencrypt, reverse-hash, or reverse-engineer Meta Technology Data; and
(e) the security, breach-notification, and incident-reporting obligations applicable to Meta Technology Data.
4.3 Amendments to Meta Platform Terms. Customer acknowledges that Meta may amend the Meta Platform Terms from time to time, and that any such amendment shall be deemed incorporated into this Supplement upon its effective date under the Meta Platform Terms. ArborXR will use commercially reasonable efforts to provide Customer with notice of material changes, but shall have no liability for failure to do so.
5. Meta Technology Data; Carve-Outs from Customer Data Rights
5.1 Carve-Out from Sections 10.4 and 10.5 of the Agreement. Notwithstanding anything to the contrary in Sections 10.4 and 10.5 of the Agreement, and notwithstanding any other provision of the Agreement granting ArborXR rights in Customer Data or Resultant Data, the following restrictions shall apply solely with respect to Meta Technology Data:
(a) ArborXR shall not include Meta Technology Data in any Resultant Data, nor shall ArborXR aggregate, combine, commingle, or correlate Meta Technology Data with any other data set for the purpose of generating Resultant Data;
(b) ArborXR shall not use Meta Technology Data to improve any product or service of ArborXR, except to the limited extent expressly permitted by the Meta Platform Terms;
(c) ArborXR shall not sell, license, rent, lease, or otherwise commercialize Meta Technology Data, and shall not permit any third party to do so; and
(d) ArborXR shall use Meta Technology Data solely for the purpose of (i) operating, supporting, and maintaining the Meta Wearables Integration for Customer’s benefit and the benefit of the end user from whom such data was collected, and (ii) complying with applicable law.
5.2 Customer Representations Regarding Data Rights. Customer represents, warrants, and covenants that Customer and its Users have obtained, and will at all times during the term of this Supplement maintain, all rights, consents, authorizations, permissions, and notices necessary for: (a) ArborXR to process Meta Technology Data in connection with the Meta Wearables Integration; (b) ArborXR to transmit, share, or otherwise disclose Meta Technology Data to any third party expressly designated or authorized by Customer (including any learning management system, business intelligence tool, human resources system, or other reporting environment); and (c) the parties to comply with the Meta Platform Terms with respect to such data. Customer shall retain documentary proof of all such consents and shall provide such proof to ArborXR or Meta promptly upon request.
5.2 No Onward Transfer Without Verifiable Consent. Customer acknowledges that any onward transfer, sharing, or disclosure of Meta Technology Data to a third party (other than ArborXR’s subprocessors acting on Customer’s behalf) requires the express, informed, and verifiable consent of the individual end user from whom the data was collected, or such other lawful basis as may be required under applicable law or the Meta Platform Terms. Customer shall implement appropriate consent-capture, recordkeeping, and proof-retention mechanisms to demonstrate compliance with this Section 5.3.
5.3 Deletion of Meta Technology Data. Customer acknowledges that ArborXR may be required to delete Meta Technology Data upon: (a) request by Meta; (b) request by, or deletion of the account of, an individual end user; (c) requirement of applicable law or regulation; or (d) termination of ArborXR’s access to the Meta Wearables Platform. Such deletion shall not constitute a breach of the Agreement or this Supplement, and Customer shall cooperate with ArborXR in effecting any required deletion.
5.4 International Data Transfers. To the extent the Meta Wearables Integration involves the cross-border transfer of personal data, the parties shall comply with the applicable provisions of the Meta Platform Terms governing such transfers, including, where applicable, the Standard Contractual Clauses adopted by the European Commission and the United Kingdom International Data Transfer Addendum. The ArborXR Data Processing Addendum is hereby supplemented to give effect to this Section 5.5.
6. Subprocessors
6.1 Engagement of Subprocessors. Customer acknowledges that ArborXR may engage subprocessors to provide certain components of the Meta Wearables Integration. ArborXR shall ensure that each such subprocessor is bound by written obligations no less protective of Meta Technology Data than those imposed on ArborXR under the Meta Platform Terms and this Supplement.
6.2 Disclosure to Meta. Customer authorizes ArborXR to disclose to Meta, upon Meta’s reasonable request, the identity of any subprocessor that processes Meta Technology Data, the types and volume of Meta Technology Data shared, and copies of, or summaries of, the relevant subprocessor agreements.
7. Audit Cooperation
7.1 Meta Audit Rights. Customer acknowledges that Meta has the right under the Meta Developer Terms to audit ArborXR’s processing of Meta Technology Data, including by accessing relevant information-technology systems and records, upon reasonable notice or, in certain circumstances specified by Meta, on shorter notice.
7.2 Customer Cooperation. Customer shall reasonably cooperate with any such audit to the extent it pertains to Customer’s use of the Meta Wearables Integration, including by (a) providing access to relevant records and personnel, (b) directing its Users and subprocessors to cooperate, and (c) responding to information requests within the timeframe reasonably requested by ArborXR or Meta. ArborXR shall use commercially reasonable efforts to limit the scope of any such audit to that which is reasonably necessary.
8. Indemnification
8.1 Customer Indemnification. In addition to, and not in limitation of, Customer’s indemnification obligations under Section 15 of the Agreement, Customer shall defend, indemnify, and hold harmless ArborXR and its affiliates, and their respective directors, officers, employees, agents, representatives, successors, and assigns (collectively, the “ArborXR Indemnitees”), from and against any and all claims, actions, suits, proceedings, liabilities, damages, losses, judgments, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and disbursements) (collectively, “Claims”) arising out of or relating to:
(a) any breach by Customer or any of its Users of this Supplement or the Meta Platform Terms;
(b) any use of the Meta Wearables Integration by Customer or any User in violation of applicable law;
(c) any Prohibited Use Case undertaken by or on behalf of Customer or any User;
(d) any Claim asserted by Meta arising out of or relating to Customer’s or any User’s actions, omissions, or use of the Meta Wearables Integration, including any indemnification obligation owed by ArborXR to Meta arising therefrom;
(e) any Claim asserted by any natural person (including any individual whose data is captured by or through Meta Wearables) arising out of Customer’s or any User’s failure to obtain required consents or to comply with applicable privacy, employment, biometric, wiretap, or surveillance laws; and
(f) any Claim asserted by any third party arising out of Customer’s or any User’s violation of intellectual property, publicity, or privacy rights in connection with the Meta Wearables Integration.
8.2 Carve-Out from Limitation of Liability. Customer’s indemnification obligations under this Section 8, and Customer’s liability arising out of any breach of Section 3 (Prohibited Use Cases), Section 4 (Flow-Down Obligations), or Section 5 (Meta Technology Data) of this Supplement, shall not be subject to the limitations of liability set forth in Section 17 of the Agreement.
9. Platform Dependency; Availability; Discontinuation
9.1 Acknowledgment of Platform Dependency. Customer acknowledges that the Meta Wearables Integration depends on Meta’s continued provision of the Meta Wearables Platform, and that ArborXR has no control over Meta’s decisions regarding the availability, functionality, scope, pricing, terms, or continuation of the Meta Wearables Platform.
9.2 No Warranty of Availability. Notwithstanding Section 9.1 of the Agreement or any other provision thereof, ArborXR makes no representation, warranty, or commitment that the Meta Wearables Integration will be available, continuous, error-free, or interoperable with any particular Meta Wearable device, feature, or service.
9.3 Right to Suspend, Modify, or Discontinue. ArborXR may suspend, modify, or discontinue the Meta Wearables Integration, in whole or in part, at any time, with or without notice, and without liability to Customer. Without limiting the foregoing, ArborXR may exercise such right if: (a) Meta suspends, terminates, or modifies ArborXR’s access to the Meta Wearables Platform; (b) Meta updates the Meta Platform Terms in a manner that materially affects ArborXR’s ability to provide the Meta Wearables Integration; (c) ArborXR determines, in its sole discretion, that continued provision of the Meta Wearables Integration would expose ArborXR to legal, regulatory, contractual, or reputational risk; or (d) ArborXR elects to exit the Meta Wearables Platform for any reason or no reason.
9.4 No Refunds; Force Majeure. Customer acknowledges that the Fees payable under the Agreement are not specifically allocated to the Meta Wearables Integration, and that any suspension, modification, or discontinuation of the Meta Wearables Integration shall not entitle Customer to any refund, credit, set-off, or other compensation, except to the extent expressly required by applicable law. Section 21.7 (Force Majeure) of the Agreement is hereby supplemented to provide that any suspension, termination, modification, or unavailability of the Meta Wearables Platform by Meta, and any change in the Meta Platform Terms that materially affects ArborXR’s ability to provide the Meta Wearables Integration, shall constitute a “Force Majeure Event” thereunder.
10. Beta and Experimental Status
10.1 Beta Status. Customer acknowledges that, as of the Supplement Effective Date, the Meta Wearables Device Access Toolkit and certain related Meta technologies are designated by Meta as in “developer preview” or as “Experimental Features” under the Meta Developer Terms. Accordingly, the Meta Wearables Integration is provided to Customer on an “AS IS” and “AS AVAILABLE” basis, without any warranties of any kind, express or implied, and is expressly subject to the disclaimers set forth in Section 16 of the Agreement.
10.2 No Production-Critical Reliance. Customer agrees not to rely on the Meta Wearables Integration for any business-critical, mission-critical, or production-critical purpose. Customer shall maintain reasonable contingency plans, including alternative training, deployment, and analytics solutions, in the event the Meta Wearables Integration becomes unavailable, is materially modified, or is discontinued.
11. Term; Termination; Survival
11.1 Term. This Supplement shall be effective on the Supplement Effective Date and shall continue concurrently with the Agreement, unless earlier terminated as provided herein or in the Agreement.
11.2 Termination by ArborXR. ArborXR may terminate this Supplement, in whole or in part, at any time, with or without notice, and without liability, including (without limitation) upon any termination, suspension, or material modification of ArborXR’s access to the Meta Wearables Platform.
11.3 Effect of Termination. Upon termination of this Supplement: (a) Customer’s right to access and use the Meta Wearables Integration shall immediately cease; (b) Customer shall, and shall cause its Users to, immediately discontinue all use of the Meta Wearables Integration; and (c) the parties shall cooperate to effect any data deletion or return required by the Meta Platform Terms or applicable law.
11.4 Survival. Sections 1 (Definitions), 3.1 (Prohibited Use Cases, with respect to any continuing or post-termination use), 5 (Meta Technology Data), 7 (Audit Cooperation), 8 (Indemnification), 9.4 (No Refunds; Force Majeure), 11.3 (Effect of Termination), 11.4 (Survival), and 12 (General Provisions) shall survive the termination or expiration of this Supplement.
12. General Provisions
12.1 Relationship to Agreement. Except as expressly modified by this Supplement, all terms and conditions of the Agreement remain in full force and effect.
12.2 Third-Party Beneficiary. Meta is hereby designated as an intended third-party beneficiary of Sections 3, 4, 5, 6, 7, and 8 of this Supplement, and shall be entitled to enforce such provisions directly against Customer to the extent permitted by applicable law. Except as set forth in the preceding sentence, this Supplement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and no other person or entity shall have any rights hereunder.
12.3 Severability. If any provision of this Supplement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect, and the invalid, illegal, or unenforceable provision shall be modified to the minimum extent necessary to render it valid, legal, and enforceable while preserving its original intent.
12.4 Governing Law; Venue. This Supplement, and any disputes arising out of or relating hereto, shall be governed by, and construed in accordance with, the governing law and venue provisions set forth in the Agreement, including Section 18 (Arbitration) and Section 20 (Governing Law and Venue) thereof, except to the extent any provision of this Supplement, the Meta Platform Terms, or applicable law specifies otherwise.
12.5 Counterparts; Electronic Acceptance. This Supplement may be executed in counterparts, each of which shall be deemed an original. Customer’s electronic acceptance of this Supplement, including through any ArborXR provisioning workflow, click-through, or in-product affirmation, shall constitute Customer’s binding agreement to its terms.
12.6 No Modification of Meta Terms. Nothing in this Supplement shall be construed to modify, waive, or limit any provision of the Meta Platform Terms, or to grant Customer any rights to which Customer would not otherwise be entitled under the Meta Platform Terms.
12.7 Entire Agreement. This Supplement, together with the Agreement and any other documents expressly incorporated by reference, constitutes the entire agreement between the parties with respect to the Meta Wearables Integration and supersedes all prior or contemporaneous understandings, agreements, negotiations, and discussions, whether oral or written, with respect to such subject matter.