AppliedVR, Inc. Commercial Terms and Conditions for RelieVRx™ System
The RelieVRx System terms and conditions (“Terms and Conditions”) are a binding agreement between the end user (“you” or “your”) and AppliedVR, Inc. (“AppliedVR") governing your use of the RelieVRx system (“Product"), a prescription-use immersive virtual reality system. These Terms and Conditions apply to your use of the Product, unless a separate agreement covers your use, rental, lease, license or purchase of the Product.
PLEASE READ THIS DOCUMENT CAREFULLY AS IT AFFECTS YOUR RIGHTS. BY USING THE PRODUCT, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. YOU MAY NOT USE THE PRODUCT IF YOU (A) DO NOT AGREE TO THESE TERMS AND CONDITIONS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH APPLIEDVR, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THE PRODUCT OR ITS CONTENTS BY APPLICABLE LAW.
- 1. Applicability. These Terms and Conditions apply to your use of the Product, which consists of AppliedVR’s eight-week proprietary software program content (“Licensed Content”) installed on a virtual reality headset (“Hardware”) (collectively, the “Hardware” and the “Licensed Content” are referred to as the “Product” herein). Unless a separate agreement applies to your use of the Product, AppliedVR rents the Hardware and licenses the Licensed Content to you for the Term (as such term is defined in Section 2), after which you must return the Product in accordance with Section 4 (collectively, the rental of the Hardware and license of the License Content during the Term is referred to as the “Product Rental”).
- 2. Term. Unless a separate agreement applies to your use of the Product, your Product Rental shall end on the earlier of (a) ten (10) weeks from receipt of the Product, (b) completion of your treatment program, or (c) your decision to terminate using the Product (“Term”).
- 3. Payment. To the extent any fees are owed by you, you agree to pay AppliedVR all applicable fees relating to your Product Rental within thirty (30) days after receiving an invoice. After an AppliedVR invoice for use of the Product becomes thirty (30) days past due, AppliedVR may suspend access to the Product or terminate these Terms and Conditions at its sole option. If you have a question about whether you are responsible for any fees, please contact AppliedVR.
- 4. Product Return. Except where you have purchased the Product and title has transferred and unless otherwise agreed to by AppliedVR in writing, you agree to return the Product in accordance with the instructions provided to you within seven (7) business days at the end of the Term. The Product must be placed in the original box (or, to the extent you no longer have the original box, a different suitable shipping box) and properly sealed. AppliedVR will provide you with a return label for shipping. If you have lost or cannot find the return label, please contact AppliedVR or the company that dispensed the Product to you. You agree to (a) pay $2500 if you do not return the Product within seven (7) business days from the end of the Term, and (b) reimburse AppliedVR if the Product is damaged, which may include paying the full cost of the Product if it is not able to be repaired. You understand AppliedVR is entitled to institute legal proceedings to recover the Product and/or monetary damages resulting from your breach of these Terms and Conditions.
- 5. Hardware. To the extent you have entered into a lease, rental, subscription arrangement, loan arrangement, or are otherwise having the Product or other physical technology made available to you by AppliedVR (except through the sale of the Product), you agree: (a) to maintain and protect the Product and its integrity as long as it is in your possession in accordance with instructions provided by AppliedVR; (b) to take all reasonable measures to prevent loss or damage to the Product (excluding malfunctions and normal wear and tear); (c) not to repair or attempt to repair the Product; and (d) to notify AppliedVR immediately if there has been any malfunction in the Product. All repairs or upgrades of the Hardware will be made by AppliedVR or one of its authorized contractors. You will be responsible for any loss of, theft of, or damage caused to the Product, and AppliedVR reserves the right to charge you the fair market value cost of repairing the Product and/or replacement cost of the Product in the event that damage to the Product occurs as a result of negligence, loss, theft, your improper use, or your breach of these Terms and Conditions. To the extent you have purchased the Hardware, then this Section 5 shall not apply.
- 6. End User License Grant; Restrictions. Subject to these Terms and Conditions, AppliedVR grants you a limited, non-exclusive, non-transferable, revocable license to make personal non-commercial use of the Licensed Content in accordance with the instructions for use provided with the Product. The Licensed Content contains or embodies copyrighted material, proprietary material, or other intellectual property of AppliedVR or its licensors. All right, title, and ownership in the Licensed Content, including ownership of the Licensed Content installed on the Hardware, and trade secrets, trademarks, service marks, patents, and copyrights associated with the Licensed Content, remains with AppliedVR or its licensors, as applicable. The Licensed Content is licensed to you and is not being sold to you, and you have no rights in the Product other than to use it in accordance with these Terms and Conditions. You agree that you will not:
(a) Copy, reproduce, modify, alter, translate, create derivative works of, distribute, rent, lease, loan, license, or sub-license all or any portion of the Licensed Content, in either original or modified form;
(b) Reverse-engineer, emulate, de-compile, disassemble, or attempt to derive the source code from any portion of the Licensed Content, encrypted data, or password protected data. To the extent activities described in the foregoing sentence may be permitted by law in spite of such prohibitions, this sentence shall not apply to such activities, and you must provide AppliedVR with advance notice detailing the scope of your intended reverse engineering activities;
(c) Use the Licensed Content or any part of it to create any tool or software product that can be used to create software applications of any nature whatsoever;
(d) Tamper with the Product or circumvent any technology used by AppliedVR or its licensors to protect any content accessible through the Product;
(e) Upload, send, transmit, or introduce any material that contains software viruses or any other computer code, files, or programs designed to interrupt, harm, damage, destroy, or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Product;
(f) Circumvent any territorial restrictions applied to the Product;
(g) Remove any copyright or trademark notice from the Product or Licensed Content;
(h) Use the Product in a way that violates these Terms and Conditions;
(i) Make the Product available to the public;
(j) Impersonate any other person while using the Product, conduct yourself in an offensive manner while using the Product, or use the Product for any illegal, immoral, or harmful purpose;
(k) Use the Product for any purposes related to scientific research, analysis, or evaluation of the Product without AppliedVR’s express written consent; or
(l) Assist or permit any third party in doing (a) – (k) above.
- 7. Third Party Software. Certain portions of the Licensed Content may utilize or include third party software that is subject to open source and third-party license terms (“Third Party Software”). You acknowledge and agree that your right to use such Third Party Software as part of, or in connection with, the Product is subject to and governed by the terms and conditions of the open source or third party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms, and disclaimers contained therein. In the event of a conflict between these Terms and Conditions and the terms of such open source or third-party licenses with regard to your use of the relevant Third Party Software, the terms of the open source or third party licenses shall prevail, but solely with respect to the software to which it pertains.
- 8. Services. As part of the Product Rental, AppliedVR may provide the following services: (i) AppliedVR may make communications to you, which may occur in various forms, to assist you in remembering to use the Product; and (ii) AppliedVR may provide a report to your healthcare practitioner detailing your therapy progress with the Product. Unless you notify AppliedVR that you do not wish to receive these services, you agree that AppliedVR may provide these services to you as part of your Product Rental.
- 9. Termination. In addition to its other rights under these Terms and Conditions, AppliedVR may terminate these Terms and Conditions upon notice to you if you materially violate these Terms and Conditions. Upon expiration or earlier termination of these Terms and Conditions, you shall return the Product in accordance with Section 4.
- 10. Medical Disclaimer. AppliedVR is not a licensed healthcare practitioner nor does AppliedVR provide medical advice. You are responsible for consulting with a healthcare practitioner and reviewing the health and safety warnings provided by AppliedVR prior to using the Product. IF YOU EXPERIENCE A MEDICAL EMERGENCY, STOP USING THE PRODUCT AND CONSULT A MEDICAL PROFESSIONAL OR CALL 911.
- 11. Warranties. EXCEPT FOR ANY WARRANTIES THAT MAY BE EXPRESSLY PROVIDED HEREIN AND/OR LITERATURE ACCOMPANYING THE PRODUCT, THE PRODUCT IS PROVIDED “AS IS,” AND APPLIEDVR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
- 12. Feedback. In the course of using the Product, you may provide comments, suggestions, and recommendations to AppliedVR with respect to the Product. You agree that AppliedVR may freely use any such comments, suggestions, and recommendations without any obligation to you.
- 14. Limitation of Liability. IN NO EVENT WILL APPLIEDVR BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR THE COST OF SUBSTITUTE PRODUCTS OR PRODUCTS RELATED TO THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS EVEN IF APPLIEDVR HAS BEEN ADVISED ON THE POSSIBILITY OF SUCH DAMAGES. APPLIEDVR’S LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID FOR THE PRODUCT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- 15. Governing Law. (a) Except as set forth in Section 15(b), these Terms and Conditions will be governed by and construed in accordance with the laws of the State of Delaware, United States, without regard or giving effect to its conflict of laws principles. (b) For purchases made by the United States federal government, these Terms and Conditions will be governed by the Federal laws of the United States.
- 16. Dispute Resolution. (a) Except as set forth in Section 16(b), to the extent permitted by applicable laws, all controversies and claims arising under or relating to these Terms and Conditions are to be resolved in accordance with the governing law set out in Section 15 above. All proceedings shall be conducted in English. Subject to applicable law, each party shall bear its own costs, expenses, and attorneys' fees (and all related costs and expenses) incurred in connection with any proceeding arising from or related to any transaction contemplated by these Terms and Conditions, and in connection with enforcing any judgment or order thereby obtained. Each party further agrees to waive any right to pursue a dispute by asserting a disputed claim in a representative capacity, or participating in a class action with respect to the Product. (b) For any purchases made by the United States federal government, all claims arising out of or relating to these Terms and Conditions shall be resolved in accordance with the Contract Disputes Act of 1978, as amended.
- 17. Notices. Notices from AppliedVR shall be in writing and may be sent by email or posted by any other method that AppliedVR reasonably determines will provide appropriate notice. Notices from you shall be in writing and may be sent by email to firstname.lastname@example.org. Notices from AppliedVR to you shall be effective: (i) in the case of notices by email when sent to the email address known or made available to AppliedVR by you or on your behalf; or (ii) in the case of postings by other methods deemed reasonable by AppliedVR, ten (10) business days after such notices are sent in the manner reasonably determined by AppliedVR. Notices from you to AppliedVR shall be effective when received by AppliedVR.
- 18. Assignment. You may not assign, novate, or otherwise transfer any of your rights under these Terms and Conditions without AppliedVR’s prior written consent, and any such attempt to do so without such consent will be null and void. AppliedVR may, in its discretion, assign, novate, subcontract, or otherwise transfer without further consent or notification any of AppliedVR’s rights and delegate any of its duties under these Terms and Conditions to an affiliated company or to any other party.
- 19. Severability. If any portion of these Terms and Conditions is held to be invalid or unenforceable, the remaining portions of these Terms and Conditions will remain in full force and effect. Any invalid or unenforceable portions will be deemed modified to the extent necessary to render such term or provision enforceable while preserving to the fullest permissible extent the intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from these Terms and Conditions but the rest of these Terms and Conditions will remain in full force and effect.
- 20. Modification of Terms. These Terms and Conditions are subject to change from time to time. In such cases, AppliedVR will provide you with details of any changes to these Terms and Conditions and you will be asked to reaccept them. If you do not agree to the modified Terms and Conditions, AppliedVR may opt to suspend or terminate your Product Rental, and (if applicable) refund any fees paid by you which are attributable to the unexpired portion of the period for which you paid those fees.
- 21. Waiver and Entire Agreement. A waiver of any term or provision of these Terms and Conditions at any time will not be deemed a waiver of the term or provision in the future. These Terms and Conditions (and the documents referred to herein) constitute the full and final agreement between you and AppliedVR and supersede all prior negotiations, agreements, discussions, and understandings between the parties, if any, whether oral or in writing, with respect to the subject matter hereof, and there are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as specifically set forth in these Terms and Conditions. You further acknowledge that no terms or conditions, usages of trade, courses of dealing or agreements purporting to modify, vary, explain, or supplement these Terms and Conditions shall be binding on AppliedVR unless specifically agreed to in writing by an authorized representative of AppliedVR.