You should carefully read the following terms and conditions of this Application End User License Agreement (“Agreement”) before utilizing the application provided along with this Agreement (the “App”). By installing or using the App You accept the terms and conditions of this Agreement. If You do not agree to the terms and conditions of this Agreement, then You are not authorized to use the App and You must uninstall the App.
THIS AGREEMENT INCLUDES VARIOUS DISCLAIMERS, SUCH AS A NO-MEDICAL ADVICE DISCLAIMER AND A MANDATORY AGREEMENT TO ARBITRATE, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT.
This Agreement is effective as of the day You first download the App or first access the App, whichever is later (“Effective Date”) and is between Osso VR, Inc., with offices at 548 Market St., PMB 78848, San Francisco, CA 94104-5401 and contact information of support@ossovr.com (“Osso VR”), and you (“You” or “User”). For the sake of clarity, if You downloaded or otherwise obtained the App from a central application marketplace operated by anyone other than Osso VR, such as the Apple App Store or the Google Play Store (a “Store”), the operator or owner of that Store (the “Proprietor”) is neither a party to this Agreement nor responsible for the App in any way. In consideration of the promises and the mutual obligations of the parties set forth in this Agreement, and for other good and valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, Osso VR and User agree as follows:
Osso VR offers a virtual reality technology platform (the “Osso VR Platform”) that includes third party components and enables device manufacturers, hospitals and healthcare providers to train its personnel in part via the App that has been installed on certain third-party hardware being used by a User (all information available through the App is collectively referred to as the “Content”). The App together with all Content is referred to as the “Service.” The App works only in conjunction with the Osso VR Platform. Your use of the App is conditioned on Osso VR having authorized your access to the Osso VR Platform, whether directly or indirectly through Your employer. Your right and license to use the App is limited to use in conjunction with the Osso VR Platform.
Osso VR hereby grants to User a limited, non-exclusive, non-transferable, non-assignable license to install and use the App, in object code form only, on one device approved by Osso VR for use with the App (e.g., a compatible virtual reality headset) solely for use by User and solely in conjunction with User’s use of the Osso VR Platform. User may not install the App in a way to allow its use by anyone other than a human—computerized utilization of the App is not allowed. User may use the Service solely for personal purposes. User may not use the Service commercially. For example, without intending any limitation, User may not: (A) offer to third parties a service of User’s own that uses the Service; (B) resell the Service; (C) offer to rent or lease the Service; or (D) offer the Service to the public via communication or integrate it within a service or application of User’s own, without the prior written consent of Osso VR. User is responsible for ensuring that User has appropriate hardware, software, and connectivity to enable the App to function in accordance with the documentation for the App. User is responsible for keeping the App up to date, including, without limitation, downloading and installing any new versions and new Content that may become available after installation.
The Service is the proprietary work of Osso VR and its licensors. Osso VR reserves all rights not expressly granted in Section 1. User may not otherwise copy, use, sublicense, modify, adapt, or create derivative works of the Service or related documentation or remove any copyright or other proprietary rights notices. Osso VR reserves the right to suspend or terminate access to or use of the Service if such use represents a breach of the terms and conditions of this Agreement, without prejudice to any other remedies available to Osso VR. The rights granted in Section 1 are a license, not a sale. User has no other express or implied license or right of any kind. User will not itself, and will not permit any other person or organization to (A) directly or indirectly, in whole or in part, sublicense, distribute, lease, make available as a service bureau or otherwise allow any third parties any right or access to the Service; or (B) disassemble, decompile, decrypt, or reverse engineer, or otherwise attempt to discover or replicate source code of the App. User acknowledges and agrees that Osso VR and its suppliers and providers of Content own and retain all rights existing from time to time in any jurisdiction under copyright law, patent law, moral rights law, trade secret law, confidential information law, trademark law, unfair competition law or other similar rights (“Proprietary Rights”) in the App, the Content, documentation, any training materials and any copies, modifications, adaptations, derivative works, and enhancements thereof, by whomever produced. User agrees that any threatened or actual breach of Osso VR's Proprietary Rights by User will constitute immediate, irreparable harm to Osso VR for which monetary damages is an inadequate remedy and for which equitable remedies may be awarded by a court of competent jurisdiction without requiring Osso VR to post any bond or any other security (or if a court requires a bond, then a bond of no more than U.S. $1,000). Except as set forth in Section 10, nothing in this Agreement limits either party's right to any remedies at law or in equity, including, without limitation, the recovery of damages for breach of this Agreement.
User is not licensed or authorized to use or otherwise engage with the Service in a manner that prevents or may prevent User from exercising due care with respect to User’s physical environment at the time of using the Services, including, without limitation, ensuring that User has third party supervision and is not in a location that could lead to the User’s harm due to User’s inability to see his or her physical surroundings. User must exercise appropriate vigilance and care in all respects when using or engaging with the Service to ensure User’s well-being, the well-being of those around User, and surrounding property. User hereby waives any right to bring any action against Osso VR or receive damages for any damages or losses suffered by User from Osso VR when User did not exercise the due care required under this Section or when the claim is based on the Content. User assumes full, exclusive and sole responsibility for the use of and reliance on the Service, and User further agrees and acknowledges that User’s use of or reliance on the Service is made entirely at User’s own risk. User will comply with all applicable laws while using the Service.
You must not, whether yourself or through any other means or person:
a. interfere with or violate any third party or other user’s right to privacy or other rights, including, without limitation, copyrights and any other intellectual property rights of others, or harvest or collect personal information about users of the Service or the Osso VR Platform without their express consent, including, without limitation, using any robot, spider, site search or retrieval application, or other manual or automatic device or process to retrieve, index, or data-mine;
b. defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others, including, without limitation, others’ copyrights, and other intellectual property rights through Your use of the Services or the Osso VR Platform;
c. transmit or otherwise make available in connection with the Service or the Osso VR Platform any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
d. interfere with or disrupt the operation of the Service or the Osso VR Platform, or the servers or networks that host the Osso VR Platform or make the Service or the Osso VR Platform available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;
e. sell, license, or exploit for any commercial purposes any use of or access to the Service or the Osso VR Platform;
f. frame or mirror any part of the Service or the Osso VR Platform without Osso VR’s prior express written authorization;
g. create a database by systematically downloading and storing all or any of the content from the Service or the Osso VR Platform;
h. forward any data generated from the Service or the Osso VR Platform without the prior written consent of Osso VR;
i. transfer or assign your Service accounts’ password, even temporarily, to a third party;
j. use the Service or the Osso VR Platform for any illegal, immoral or unauthorized purpose; or
k. use the Site or the Osso VR Platform for non-personal or commercial purposes without Osso VR’s express prior written consent.
Osso VR has created an App Privacy Policy to inform You what information may be collected via the App and how Osso VR, its customers and third parties may use the information. Osso VR’s App Privacy Policy is at https://www.ossovr.com/privacy-policy. You agree to Osso VR’s, its customers, and other third parties’ uses of information provided by or on behalf of You through the use of the Services, as described in the App Privacy Policy.
You are solely responsible for ensuring that You exercise due care at all times when using or engaging with the Service. Osso VR makes no representation or warranty as to the accuracy of the Content provided or the results derived from the App. You acknowledge and agree that the Content is not reviewed by Osso VR for accuracy or completeness and that Osso VR has no obligation to do so. The Service is provided “as is, where is” and as available. Osso VR provides no warranty and to the maximum amount allowable by law expressly disclaims all warranties, guarantees, conditions, or representations, whether express, implied, statutory, or otherwise, with respect to the Service, including, without limitation, any implied warranty of merchantability, error-free use, originality, title, against infringement, or fitness for a particular purpose. You are solely responsible for ensuring that the App is used in accordance with its documentation. Your sole remedy for any problems with the App or other parts of the Service or the accuracy or completeness of any Content is to cease use of the Services. Proprietor makes no warranties about the Service and Proprietor is not responsible for the support or maintenance of the App. Any and all claims under this Agreement (including, without limitation, all products liability claims, claims that the Service fails to conform to any applicable legal or regulatory requirement, and claims arising under consumer protection or similar legislation) must be made to Osso VR and not to Proprietor. Insofar as the App includes services or applications not operated or managed by Osso VR, Osso VR will not be liable for any form of liability arising from Your reliance on, or in connection with, the content of such services and applications or any information provided by them, including but not limited to its completeness, accuracy, correctness or it being up-to-date.
The App is not a medical device and should not be relied upon for the provision of medical information or for the purposes of obtaining medical treatment. THE SERVICES ARE NOT PROFESSIONAL OR MEDICAL ADVICE AND ARE NOT A SUBSTITUTE FOR PROFESSIONAL OR MEDICAL ADVICE. THE SERVICES DO NOT, AND ARE NOT INTENDED BY THE PARTIES TO, REPLACE THE JUDGMENT, TRAINING, EDUCATION OR EXPERIENCE OF ANY PHYSICIAN, NURSE, PHARMACIST, TECHNICIAN OR OTHER HEALTHCARE PROFESSIONAL. OSSO VR DOES NOT GUARANTEE THAT THE SERVICES COVER ANY OR ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, OR ADVERSE EFFECTS THAT MAY BE ASSOCIATED WITH ANY PRODUCT, DEVICE, SERVICE, GUIDELINE, ALERT, DIAGNOSIS, PROCEDURE OR THERAPY, AND OSSO VR DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC PRODUCT, DEVICE, SERVICE, TEST, PHYSICIAN, PROCEDURE, THERAPY, OR OPINION. OSSO VR DOES NOT ASSUME ANY LIABILITY OR RESPONSIBILITY FOR DAMAGE OR INJURY (INCLUDING DEATH) TO ANY PATIENT, CARE PROVIDER, OTHER PERSON OR PROPERTY ARISING FROM ANY USE OF A PRODUCT, DEVICE, SERVICE, PROCEDURE, INFORMATION, IDEA OR INSTRUCTION CONTAINED OR REFERENCED IN THE SERVICES PROVIDED. THE SERVICES ARE MERELY A TOOL DESIGNED TO ASSIST WITH ONE ASPECT OF YOUR TRAINING NEEDS OR REQUIREMENTS, WHICH IS YOUR SOLE OBLIGATION TO ACHIEVE. THE SERVICES PROVIDE GENERAL INFORMATION, WHICH MAY NOT APPLY TO ANY SPECIFIC OR FACTUAL CIRCUMSTANCE. AS BETWEEN OSSO VR AND YOU, YOU ARE SOLELY RESPONSIBLE FOR INTERPRETING, UNDERSTANDING, AND USING THE RESULTS OF THE SERVICES AND FOR VALIDATION OF THE ACCURACY OF ALL REPORTS AND OTHER OUTPUTS FROM THE SERVICES.
THE SERVICES ARE NOT DESIGNED TO BE ERROR-FREE OR FAULT-TOLERANT AND ARE NOT DESIGNED TO BE USED IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE INCLUDING PRENATAL OR OTHER SURGICAL OR MEDICAL CARE SYSTEMS IN WHICH FAILURE OF THE SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, PHYSICAL OR EMOTIONAL IMPAIRMENT, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK ACTIVITIES"). OSSO VR SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.
Osso VR may terminate this Agreement at any time, for any reason or no reason, by providing User with written (including, without limitation, electronic) notice. This Agreement will automatically terminate upon the earliest of (i) User erasing or uninstalling the App, (iii) User selling or transferring the device upon which the App is installed, (iv) User assigning any of its assets to its creditors, or voluntarily or involuntarily petitioning for the protection of bankruptcy court, or (v) User otherwise expresses its intent to no longer utilize the App. Rights of termination are in addition to any other remedies available to Osso VR, at law or in equity. Upon any termination or expiration of this Agreement, all license rights will immediately terminate, and User will immediately cease use of and uninstall the App. The following sections of this Agreement will survive: 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 15, and 16. Osso VR has no obligation to provide any data or information of any kind to User following termination.
User will indemnify and hold harmless Osso VR from any loss, damage, liability, cost or expense suffered or incurred in connection with any claim, suit or proceeding brought by a third party against Osso VR to the extent that it arises out of User's use of the Service, use of the Service to obtain medical treatment, or User’s failure to exercise due care while using the Service as described in Section 3. Osso VR will indemnify and hold harmless User for any third-party claim that the App, unmodified by anyone other than Osso VR, in and of itself, and when used in accordance with this Agreement and its documentation, violates that third party’s intellectual property rights. Proprietor has no obligation to indemnify User for any reason.
a. Neither Osso VR nor Proprietor, nor their officers, directors, employees, shareholders, agents, licensors, resellers, or representatives (collectively “Osso VR Parties”) will be liable to User or any third party for any incidental, indirect, special, exemplary or consequential damages, including, but not limited to, lost profits, lost time, lost savings, lost data, or lost goodwill or damages that may arise from use of or inability to use the Service or that may arise out of or in connection with the Service or any related functionality or information relating to the subject matter of this Agreement, whether foreseeable or unforeseeable, regardless of whether such damages are based in contract, tort (including, without limitation, negligence), warranty, strict liability, products liability, or otherwise, even if they have been notified of the possibility or likelihood of such damages occurring.
b. THE MAXIMUM AGGREGATE LIABILITY OF THE OSSO VR PARTIES IN ALL EVENTS WILL BE LIMITED TO THE HIGHER OF THE PRICE USER PAID TO THE STORE OR OSSO VR FOR THE APP, ONE THOUSAND US DOLLARS (USD$1,000), OR THE LOWEST AMOUNT ALLOWABLE BY LAW.
Except as otherwise provided below, the parties will first attempt to resolve any dispute, claim, or controversy relating in any way to this Agreement (a “Dispute”) between User and an officer of Osso VR or, if the User is an organization, between officers of each party who have authority to resolve the Dispute. If any Dispute cannot be settled in this manner within 60 days of written notice being received by the other party, the Dispute will be exclusively settled by arbitration in accordance with the Commercial Arbitration Rules of American Arbitration Association (“Rules”) in San Francisco, California in the United States of America, with judgment upon the award rendered by the arbitrator to be entered in any court of competent jurisdiction. Any arbitrator selected pursuant to the Rules will have a background or training in contract and intellectual property law. The arbitrator may award attorneys’ fees and costs to the prevailing party. Notwithstanding the foregoing, either party may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim, conservatory or equitable relief, without breach of this agreement to arbitrate and without any abridgment of the powers of the arbitrator. Osso VR and User acknowledge and agree that Proprietor is a third-party beneficiary of this Agreement and has the right to enforce this Agreement against each.
Osso VR may, either partially or in its entirety and without being obligated to provide prior notice, modify, adapt, or change the Service’s features, the user interface and design, the extent and availability of Content, and any other aspect related to the Service.
Osso VR may modify this Agreement from time to time. Your continued use of the Service after this Agreement has been modified signifies your agreement to the updated Agreement. If you do not agree to the updated Agreement, you must discontinue all further use of the Service and uninstall the App. If fundamental changes are introduced, a notice will be posted in the App.
User may not assign this Agreement or any rights and obligations under this Agreement in whole or in part. Any attempted assignment will be void and of no effect. Osso VR may assign this Agreement at will. The terms and conditions of this Agreement will inure to the benefit of and be binding upon their respective successors and assigns of the parties. No delay or failure in exercising any right and no partial or single exercise thereof will be deemed to constitute a waiver of such right or any other rights under this Agreement. If any provision of this Agreement is declared invalid by a court of competent jurisdiction, the provision will be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will be valid and enforceable to the fullest extent permitted by applicable law. Should any provision of this Agreement require interpretation by a court or arbitrator, the parties agree that the court or arbitrator interpreting or construing the same will not apply a presumption that this Agreement will be more strictly construed against one party than the other. This Agreement is governed by and construed in accordance with the laws of the State of Delaware, in the United States of America, without regard to its rules regarding conflict of laws, the application of UCITA, or any international conventions on the transfer of technology or goods.
By utilizing the App you agree to transact business with Osso VR electronically, and you represent and warrant that you are more than 18 years of age, are not located in or a citizen of a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country, are is not listed on any U.S. Government list of prohibited or restricted parties, and will not export the App itself or use the App to export any information in violation of the laws of the United States of America.
