These Osso Academy Terms of Service set forth legal terms and conditions applicable to a Customer’s access and use of the VR Solution and related Services. All access to and use of the Services by a Customer is subject to these Terms of Service. Capitalized terms used in these Terms of Service are set forth in Section 1 below or as otherwise defined in the text of these Terms of Service. Osso VR may update these Terms of Service from time to time and shall provide written notice of such updates to Customer.
1. “Approved Hardware” means the VR hardware approved for use with the VR Solution in each Order, including any software pre-installed on the Approved Hardware.
2. “Authorized User” means Customer’s employee or contractor that is authorized by Customer to have administrative rights to the VR Solution and access to Customer Data.
3. “Customer” means the entity, company, organization or party that is accepting and agreeing to, or is otherwise bound y, these Terms of Service as set forth herein.
4. “Customer Data” means the data Customer provides to Osso VR related to Customer’s use of the Services.
5. “Documentation” means the instructions, training materials, and other documentation regarding the Services that may be made available by Osso VR to Customer and updated from time-to-time.
6. “EULA” means the end user license agreement, as may be updated by Osso VR from time to time, that VR End Users must agree to before using the Services.
7. “Intellectual Property” means all algorithms, application programming interfaces (APIs), concepts, data, databases and data collections, designs, diagrams, documentation, drawings, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, business processes, marks (including brand names, product names, logos, and slogans), methods, models, network configurations and architectures, procedures, processes, software code (in any form including source code and executable or object code), specifications, tools, uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, works of authorship, and other forms of technology.
8. “Intellectual Property Rights” means a party’s patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, trademark rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction.
9. “Osso VR” means Osso VR, Inc., a Delaware corporation.
10. “Order” means the document that Customer uses to order Services that is signed by both Customer and Osso VR.
11. “Reports” means the written reports available on the VR Platform that may, from time to time in accordance with Osso VR’s then current standard practices, be generated by Osso VR in connection with Customer’s use of the Service.
12. “Services” means the VR Solution and any services provided to Customer by Osso VR in connection therewith.
13. “Terms of Service” or “Agreement” means these Osso Academy Terms of Service.
14. “Usage Data” means data and other information relating to the provision, use and performance of the Services. Usage Data is Osso VR’s Intellectual Property and is not Customer Data.
15. “Users” means Authorized Users and VR End Users.
16. “VR End User” means an individual who uses the VR Modules on Approved Hardware with Customer’s permission and subject to the EULA.
17. “VR Modules” means the content developed by Osso VR and made available through the VR Platform.
18. “VR Platform” means the Osso VR application Customer and Users use to manage, deploy, facilitate and experience virtual reality training content, including the VR Modules.
19. “VR Solution” means the VR Platform and VR Modules.
Subject to all terms and conditions of this Agreement, Osso VR grants to Customer, a limited, non-exclusive, non-sublicensable, revocable, non-transferable license during the Term to (a) access, and permit Authorized Users to access, the VR Platform remotely over the internet for the performance of administrative functions, and (b) install the VR Solution on the Approved Hardware and to use, and permit VR End Users to use, the VR Solution solely for Customer’s lawful commercial purposes. Except as expressly set forth in this Section 2.1, Osso VR grants no licenses or other rights by implication, estoppel, or otherwise to Osso VR’s Intellectual Property Rights. All rights not expressly granted are reserved by Osso VR.
Customer will access and use, and will ensure all Users access and use, the VR Solution in accordance with the Documentation. Without limiting the foregoing, Customer will not and will ensure that its Users do not, directly or indirectly:
(a) access or use any of Osso VR’s Intellectual Property to develop competitive products or services or to create any application, solution or other Intellectual Property that performs, replicates, or utilizes the same or substantially similar functions as the Services;
(b) sublicense, distribute, rent, lease, encumber, resell, or otherwise transfer the Services to a third party except as expressly permitted by the Agreement;
(c) disassemble, decompile, reverse engineer or otherwise attempt to discover any source code or underlying organization, structures, ideas or algorithms in the Services;
(d) copy, adapt, combine, create derivative works of, translate, localize, port or otherwise modify the Services (in whole or in part) except to make temporary copies as part of accessing VR Modules on Approved Hardware in accordance with Section 2.1(b);
(e) use any third party to conduct any benchmarking or competitive analysis or disseminate benchmark performance information or analysis for purposes other than internal issue resolution or as requested by Osso VR;
(f) abuse or misuse the Service, including attempting to gain unauthorized access to the Service;
(g) remove, alter, obscure, cover, or modify any Documentation or other information printed on or provided with the Services;
(h) remove, alter, obscure, cover, or modify any copyright or trademark notices or marks found in or on Services or other materials provided by Osso VR; or
(i) permit any third party to do any of the foregoing.
During the Term and subject to the terms and provisions of this Agreement, Osso VR shall use commercially reasonable efforts to provide Customer with the following support services for the Services:
(a) reasonable telephone and/or e-mail support related to use of the Services from 7am to 5pm Pacific Time on weekdays (excluding United States federal holidays) at email@example.com;
(b) technical support for any material errors or bugs in the Services comprising of (i) workarounds or (ii) software patches and fixes for such errors or bugs, once Osso VR has determined that such error or bug is a fault in the Services; and
(c) any other support service offered to Customer by Osso VR from time to time which Osso VR may, at its sole discretion, designate as a support service.
Support services shall not include any services related to any errors, bugs or issues resulting from:
(A) any alteration or modification to the Services made by any person other than Osso VR;
(B) minor defects in the Services which do not materially affect or impair the use of the Services;
(C) any incorrect or improper use of the Services;
(D) failure to implement Osso VR recommendations in respect of any solutions or workarounds to errors previously advised by Osso VR;
(E) errors or problems caused, at least in part, by Customer Data or any Authorized User;
(F) the use of features marked as “alpha”, “beta”, “early access”, “experimental”, or “lab”;
(G) the use of Services with devices other than Approved Hardware;
(H) the use of the Services for any purpose for which it was not designed;
(I) poor or inadequate performance of Customer’s systems or third-party systems procured or provided by Customer; and
(J) force majeure events described in Section 11.6 (collectively “Exclusions”).
Customer acknowledges and agrees that Osso VR’s support services for the Services do not include maintenance services relating to the Approved Hardware and third-party technology integrated into or necessary to operate and manage the Approved Hardware (including, without limitation, ay mobile device management technology) and, consistent with Section 2.5 below, Customer must seek any remediation or technical services relating to the Approved Hardware or third-party technology solely from the developer or manufacturer thereof. Additional fees may apply to any services that Osso VR elects to provide related to the foregoing Exclusions. Osso VR shall use commercially reasonable efforts to ensure the VR Solution is available 98% of the time on a monthly basis on business days between the hours of 6am Pacific time and midnight Pacific time; provided however that the Services may be down due to: Exclusions, scheduled down-time for upgrades, repair and regular network maintenance, or other reason outside of Osso VR’s control. Whenever possible, Osso VR shall perform scheduled maintenance at times that minimize inconvenience to Customer. Osso VR shall use reasonable efforts to ensure that Osso VR’s servers have sufficient capacity and rate of connectivity to provide the Customer and Authorized Users with reasonable uptime. If the Services fail to operate in substantial conformance with the terms of this Agreement, Customer shall immediately notify Osso VR, and Osso VR shall promptly use reasonable efforts to restore access to the Services as soon as possible.
Through the functionality offered by the VR Solution, Osso VR may make Reports available to Customer regarding the Users’ use of the VR Solution, including performance statistics with respect to a particular VR Module relative to other VR End Users. Osso VR does not (i) monitor or evaluate Reports, (ii) make any qualitative judgments or determinations as it relates to the performance of a VR End User, or (iii) take any action (and has no obligation to take any action) with respect to the information contained in any Report. Customer alone is responsible for the management, supervision and training of VR End Users.
Upon execution of an Order, Osso VR will, or will cause a third-party vendor to, order the number of units of Approved Hardware set forth in the Order and ship such units to Customer. Customer acknowledges and agrees that Osso VR is only responsible for software integrated into the Approved Hardware developed by Osso VR and support such technology’s function in accordance with the recommended Approved hardware management and configuration. Without limiting the generality of the foregoing, Customer acknowledges and agrees that:
(a) Osso VR will have no liability for any costs or issues associated with the Approved Hardware or any third-party technology integrated with the Approved Hardware (including, without limitation, any mobile device management technology);
(b) Customer is responsible for maintaining such Approved Hardware and complying with any requirements related thereto;
(c) Customer is solely responsible for obtaining all third-party permissions and consents required by the Approved Hardware manufacturer, suppliers or other third parties (including, without limitation, any mobile device management technology) to link, integrate, and use the Approved Hardware with the Services; and
(d) Customer may need certain other equipment and software to access and use the Services or support, which are the sole responsibility of Customer.
If Customer, a User or a particular unit of Approved Hardware is unable to access all or part of the Services because it does not have access to any necessary third party technology or because the Services in connection with a particular unit of Approved Hardware violates the terms of service of the Approved Hardware manufacturer, this shall not constitute a breach of this Agreement by Osso VR and Osso VR shall not be liable for any loss, damage or expense which may result from such inability to access the Services. Osso VR shall not be responsible for possible errors, faults, interruptions or discontinued services caused by Approved Hardware or the Approved Hardware manufacturer. If the manufacturer or supplier of Approved Hardware changes its terms of service or technical requirements, it may become impossible for the VR Solution to be deployed on such Approved Hardware, and Osso VR makes no representations or warranties that Approved Hardware will be capable of being continuously linked to or integrated with the Services. In addition, Customer may need to update the VR Solution or other software to ensure the Services function properly, which may include bug fixes, patches, security updates, or other updates (“Updates”). Failure to install Updates may result in impaired functionality of the Services, security vulnerabilities, or an inability for Osso VR to provide support to Customer. Osso VR will have no liability for damages that arise from Customer’s failure to install Updates.
Customer will keep its Users’ IDs and passwords for the VR Solution confidential and will be responsible for all User account activities. Customer is solely responsible for the use of the Services in compliance with this Agreement by Users and will ensure Users’ compliance with the Agreement. Customer will immediately notify Osso VR of any suspected violation of this Agreement by a User and will cooperate with Osso VR to remediate the suspected violation. Osso VR may suspend any User’s access to the Services if Osso VR reasonably determines that such User has violated this Agreement or poses a security risk. Customer will be responsible for any breach of this Agreement by its Users. Customer acknowledges that VR End Users will be required to agree to a EULA prior to being permitted to use the VR Solution.
Should Customer provide Osso VR with comments, modifications, corrections, enhancements, or other feedback (“Feedback”) related to the Services or Documentation, Osso VR will be free to use, disclose, reproduce, license or otherwise distribute or exploit the Feedback in its sole discretion without any obligations or restrictions of any kind, including without limitation, intellectual property rights or licensing obligations.
Customer acknowledges that Osso VR may from time to time partner with one or more academic institutions or collaborators (each, a “Research Partner”) to conduct research on, among other things, the efficacy of virtual reality surgical simulations on improving surgeon performance (each, a “Research Project”). Accordingly, Customer acknowledges and agrees that
(a) Osso VR shall have the right to permit Research Partners to utilize the VR Modules, including any Usage Data or analytics collected therewith in accordance with the terms and conditions of this Agreement, in connection with a Research Project;
(b) Osso VR and/or the Research Partner will have exclusive authority to conduct, manage, control and direct a Research Project, to supervise Research Partner personnel participating in the Research Project, and to manage any subcontractors carrying out research responsibilities on a Research Project;
(c) Customer may or may not, during the course of a Research Project, have opportunities to advise and consult with a Research Partner regarding a Research Project, its progress and results (including, without limitation, the protocol, objectives, methodology, statistical considerations, and organization of the Research Project); and
(d) Osso VR and/or a Research Partner will have the sole and exclusive right to make or permit to be made scholarly disclosures of the results of a Research Project, including, without limitation, publication in scholarly journals, presentations at academic and other conferences, disclosures to academic institutions, and disclosures in sales and marketing materials.
Customer further acknowledges and agrees that ownership of any other rights in any Intellectual Property created by a Research Partner in the course of the conduct of a Research Project will be the sole and exclusive property of such Research Partner. Notwithstanding the foregoing, any and all Intellectual Property and Intellectual Property Rights in and to the VR Modules and services, including any pre-existing Intellectual Property, will be governed by and subject to the terms and conditions of this Agreement.
Customer will pay to Osso VR the fees in accordance with the terms set forth in the applicable Order and the Agreement. Osso VR may modify the applicable fees upon prior written notice to Customer at least 90 days prior to any renewal term specified in an Order. Unless otherwise set forth in an Order, Osso VR will invoice Customer annually in advance for the Services and payment will be due and payable within 30 days of issuance of an invoice to Customer. Payments are non-refundable and non-cancellable except as expressly stated otherwise in this Agreement. Osso VR will be entitled to an award of its reasonable attorney’s fees and collection costs in connection with Customer’s breach of its payment obligations.
The licensing fees set forth in an Order shall apply to the initial term of such Order. Osso VR reserves the right to change the licensing fees following the expiration of the initial term of an Order and each renewal term thereafter, it being understood and agreed that Osso VR will notify Customer of any pricing changes prior to the beginning of the applicable renewal term of such Order.
All fees and other amounts stated or referred to in this Agreement are exclusive of all taxes, including sales and use taxes, fees, duties, and other charges imposed by any federal, state, local government or regulatory authority (collectively, “Taxes”). Customer will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments, other than any taxes based on Osso VR’s net income. If Osso VR has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Osso VR with a valid tax exemption certificate authorized by the appropriate taxing authority.
The term of this Agreement (the “Term”) will begin on the effective date of the first Order executed by Customer and Osso VR and continue until the termination or expiration of all Orders entered into by the parties, unless earlier terminated as provided for in the Agreement. Each Order will have its own term and will automatically renew for consecutive periods of equal duration unless one party to the Order gives the other party written notice of its intent not to renew the Order at least 60 days prior to the next renewal date.
This Agreement may be terminated by either party if the other party breaches any material provision of this Agreement and fails to cure the breach within 30 days after receiving written notice of the specific breach from the non-breaching party. Notwithstanding the foregoing, either party may immediately terminate the Agreement with written notice if the breaching party is in violation of Section 2.2 or otherwise misappropriates trade secrets or infringes the intellectual property rights of the terminating party in a way that may cause material harm to that party. Osso VR may also terminate the agreement pursuant to Section 9.2.
Upon expiration or termination of this Agreement, Customer’s right to access and use the Services will immediately terminate and all Users will cease use of the Services. Without limiting the rights or remedies of either party available at law or in equity, in the event of the termination of this Agreement prior to the end of the Term
(a) by the mutual agreement of Customer and Osso VR; or
(b) by either party in accordance with Section 4.2, Customer shall be obligated to pay Osso VR all accrued fees in accordance with the applicable Order and this Agreement according to the extent of conforming Services performed by Osso VR prior to the effective date of termination.
The rights and obligations set out in Sections 2.2, 2.4, 2.5, 2.6, 3, 4, 5, 6.3, 7, 9, 10, and 11 will survive termination or expiration of the Agreement.
5.1 “Confidential Information” means any non-public business or technical information disclosed by one party to the other party that the Receiving Party would reasonably believe to be confidential, including a party’s product plans, present or future developments, customers, designs, costs, prices, finances, marketing plans, business opportunities, the Services, Documentation, personnel, research, development or know-how; Customer Data and this Agreement, whether or not marked as confidential. A party disclosing Confidential Information is a “Disclosing Party.” A party receiving Confidential Information is a “Receiving Party.”
A Receiving Party will not use the Disclosing Party’s Confidential Information except as necessary under this Agreement and will not disclose Confidential Information to any third party except to those of its employees, contractors, and service providers including legal and financial advisors who have a business need to know such Confidential Information, expressly excluding Customer’s employees, contractors, or service providers that develop services for Customer that may be considered competitive to the Services; provided that the employee, contractor or service provider is bound to confidentiality restrictions at least as restrictive as the terms set forth in this Agreement. Each Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the Receiving Party uses with respect to its own confidential information and in no event less than a reasonable standard of care. The foregoing restrictions will not apply to any information that:
(a) is or becomes generally known to the public through no fault of or breach of this Agreement by the Receiving Party;
(b) is rightfully known by the Receiving Party at the time of disclosure;
(c) is independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information as evidenced by its written records; or
(d) the Receiving Party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the Disclosing Party.
The provisions of this Section 5 will not restrict either party from disclosing the other party’s Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that to the extent legally permitted, the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request; (ii) as required under applicable securities regulations.
The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief without the requirement of first posting a bond in addition to whatever other remedies it might have at law.
Customer Data is the property of Customer. Customer is responsible for obtaining any necessary rights and licenses for use of Customer Data by Customer and Osso VR as contemplated by this Agreement. Customer warrants that it is authorized by ownership or license to access, use and disclose to Osso VR any Customer Data. Customer grants Osso VR a limited, non-exclusive license to access, copy, transmit, download, and display Customer Data to provide, support, and improve the Services ordered by Customer.
Osso VR may collect and analyze Usage Data to, among other things, improve the Services, develop new products or services, or conduct research with Research Partners. Usage Data analytics may be disclosed to Customer, other customers’ Users in connection with their respective use of the Services, or to Osso VR customers and partners. All Usage Data that alone would reveal Customer’s Confidential Information or identify Customer or Customer’s Users will only be disclosed in an anonymized and aggregated form.
Osso VR will use accepted industry practices and technical and organizational measures designed to prevent unauthorized access or disclosure of Customer Data. Osso VR will notify Customer of an actual breach of Customer Data after becoming aware of such breach.
The following are and will remain Osso VR’s sole and exclusive Intellectual Property:
(a) the Services and all improvements, enhancements, or modifications to the Services (other than any Intellectual Property Rights associated with a VR Module owned by a partner of Osso VR, which remain the sole and exclusive Intellectual Property of such partner);
(c) Usage Data;
(e) Osso VR’s Intellectual Property or other technology developed in connection with providing the Services;
(f) Osso VR name, logo, and other trademarks; and
(g) all Intellectual Property Rights in and to any of the foregoing.
The following are and will remain Customer’s sole and exclusive Intellectual Property:
(a) Customer Data;
(b) Customer’s name, logo and other trademarks; and
(c) all Intellectual Property Rights in and to any of the foregoing.
Customer grants to Osso VR a worldwide, royalty-free, non-transferable, and non-exclusive license during the term to use its name, trade name, trademarks, acronym or logo solely for the following purposes:
(a) to display in the VR Platform application launcher; and
(b) to publicize or advertise that Customer is using the Services (for example, by using Customer’s marks in presentations, marketing materials, and website listings).
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS AND OSSO VR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES AND OSSO VR HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. OSSO VR DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OSSO VR OR FROM ANY THIRD PARTY WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
A. CUSTOMER DATA AND DIRECTION LIABILITY DISCLAIMER
OSSO VR WILL HAVE NO LIABILITY FOR ANY CLAIMS, LOSSES, OR DAMAGES CAUSED BY ERRORS OR OMISSIONS IN ANY CUSTOMER DATA OR OTHER INFORMATION PROVIDED TO OSSO VR BY CUSTOMER IN CONNECTION WITH THE SERVICES OR FOR ANY ACTIONS TAKEN BY OSSO VR AT CUSTOMER’S DIRECTION. OSSO VR WILL NOT BE LIABLE FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S OR ANY USER’S USE OF ANY THIRD-PARTY PRODUCTS, SERVICES, SOFTWARE OR WEB SITES THAT ARE ACCESSED ON APPROVED HARDWARE AND UNRELATED TO THE SERVICES.
B. MEDICAL ADVICE DISCLAIMER
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 USES COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT SERVICES ARE ACCURATE AND UP TO DATE, HOWEVER, THE SERVICES MAY CONTAIN TECHNICAL INACCURACIES AND OTHER ERRORS. MEDICAL INFORMATION CHANGES RAPIDLY. 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 CUSTOMER’S OVERALL WORKFORCE TRAINING AND ASSESSMENT PROGRAM, WHICH IS CUSTOMER’S SOLE OBLIGATION TO IMPLEMENT AND MAINTAIN. THE SERVICES PROVIDE GENERAL INFORMATION, WHICH MAY NOT APPLY TO ANY SPECIFIC OR FACTUAL CIRCUMSTANCE. CUSTOMER IS 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, INCLUDING USE OR MISUSE OF SUCH REPORTS AND ANY OTHER OUTPUTS OR CUSTOMER-SPECIFIC SERVICE GENERALLY (INCLUDING WITHOUT LIMITATION ANY PROCEDURES).
C. HIGH-RISK USE DISCLAIMER
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.
D. HEALTH AND SAFETY DISCLAIMER
CUSTOMERS SHOULD USE THE APPROVED HARDWARE IN STRICT ACCORDANCE WITH THE GUIDELINES PROVIDED BY THE APPROVED HARDWARE MANUFACTURER. THE SERVICES SHOULD NOT BE USED BY CHILDREN UNDER THE AGE OF THIRTEEN. OSSO VR SPECIFICALLY DISCLAIMS ANY LIABILILITY ARISING FROM USERS’ USE OF THE APPROVED HARDWARE NOT IN ACCORDANCE WITH THE MANUFACTURER’S GUIDELINES.
Osso VR will defend Customer from and against any suit or action brought by a third-party against Customer alleging that the Services as provided by Osso VR and when used by Customer pursuant to this Agreement, infringes any Intellectual Property Rights of a third party and will indemnify Customer for liabilities (resulting from settlements or judgment awards) based on such claims; provided that:
(a) Customer provides Osso VR with prompt written notice of any claim;
(b) Customer provides reasonable cooperation to Osso VR in the defense and settlement of the claim; and
(c) Osso VR has sole authority to defend or settle the claim, except that Osso VR will obtain Customer’s written consent for any settlement that imposes liability upon Customer or requires Customer to admit wrongdoing.
If the VR Solution becomes or, in Osso VR's opinion, is likely to become the subject of either a claim of infringement or an injunction that would prevent Customer from using the VR Solution, Osso VR may, at its option and as the sole remedy of Customer:
(a) obtain for Customer the rights to continue to use the VR Solution under the terms of this Agreement; or
(b) replace or modify the Services so that they are non-infringing or not the subject of any injunction, as applicable.
If options (a) or (b) are not available on commercially reasonable terms, Osso VR may, at its option and without additional liability to Customer, terminate this Agreement upon written notice and refund to Customer the pro-rata portion of fees paid in advance for the Services for the then-current Term.
Osso VR will have no liability or obligation to indemnify Customer for any claim attributable to
(a) any use of the VR Solution not strictly in compliance with this Agreement, or in an application or environment or on a platform or with devices for which it was not designed or contemplated;
(b) any use of the VR Solution with products, equipment, software, data or Intellectual Property not supplied by Osso VR, if such infringement would have been avoided but for such combination;
(c) alterations, combinations or enhancements of the VR Solution not created by Osso VR;
(d) failure to apply the latest Updates or releases made available by Osso VR;
(e) Customer Data alone or in combination with the VR Solution;
(f) the Customer continuing allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or
(g) infringing activity that occurred after the expiration or termination of this Agreement.
THE FOREGOING STATES OSSO VR’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
Customer will indemnify and defend Osso VR from and against any action or suit brought against Osso VR by a third party arising out of or relating to
(a) any claim that the Customer Data infringes or otherwise violates the intellectual property rights of a third party;
(b) any violation of any applicable law by Customer or an Authorized User;
(c) any gross negligence, willful misconduct or fraud of Customer or an Authorized User or
(d) any claim that arises out of any representation by or on behalf of Customer or a User that is contrary to or inconsistent with the medical advice and high-risk use disclaimers in Section 8.2.B and 8.2.C; provided that, in each case: (i) Osso VR provides Customer with prompt written notice of any claim; (ii) Osso VR provides reasonable cooperation to Customer in the defense and settlement of the claim; and (iii) Customer has sole authority to defend or settle the claim, except that Customer will obtain Osso VR’s written consent for any settlement that imposes liability upon Osso VR or requires Osso VR to admit wrongdoing.
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER CUSTOMER NOR OSSO VR, AND ITS AFFILIATES AND SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR
(A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES; OR
(B) LOSS OF: USE, DATA, BUSINESS, REVENUES, PROFITS, OR GOODWILL DAMAGES (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE, EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY.
IN ADDITION, IN NO EVENT WILL OSSO VR (OR ITS SUPPLIERS) BE LIABLE FOR CLAIMS ARISING OUT OF USE OF THE SERVICES TO PROVIDE HEALTH CARE TO PATIENTS.
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL EXCEED $25,000.
Neither party may assign its rights or obligations under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement as part of a merger, acquisition, or similar change of control or sale of substantially all its assets or business without the other party’s consent provided that the assignee is bound by the terms and conditions of the Agreement. Other than the foregoing, any attempt by either party to transfer its rights or obligations under this Agreement will be void.
The parties are independent contractors as to each other. Neither party may obligate the other party other than under this Agreement. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties.
This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
Osso VR may use subcontractors to provide any part of the Services. Osso VR remains liable for all acts and omissions of its subcontractors in their performance of the Services.
This Agreement will be governed by the laws of the United States and the State of Delaware without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in Delaware. Osso VR and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
Neither party will be liable by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money owed) on account of events beyond the reasonable control of such party, which may include, without limitation, acts of God or public enemy, acts or any order of government, fire, flood or other natural disaster, epidemics, pandemics, governmental orders, embargoes, accidents, explosions, strikes or other labor disturbances (regardless of the reasonableness of the demands of labor), shortages of fuel, power or raw materials, inability to obtain or delays of transportation facilities, failures of the internet or any public telecommunications network, failures of Osso VR’s hosting providers, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, incidents of war, or other similar types of events.
This Agreement is the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning its subject matter. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.
Notices will be sent to the addresses set forth in the Order. Notices will be deemed to have been given upon:
(a) the date actually delivered in person;
(b) the day after the date sent by overnight courier; or
(c) three (3) days following the date such notice was mailed by first class mail.
If You have any questions or comments about the Agreement, or your dealings with the Website, please contact us by email sent to firstname.lastname@example.org or by mail at Osso VR, 548 Market St., PMB 78848, San Francisco, CA 941-4-5401.