Software License Agreement
Last Updated: September 12, 2022
This Software License Agreement (“Agreement”) governs access to and use of BehaVR’s virtual reality programs designed to help users learn stress resilience, emotion regulation, mindfulness, and other skills and information useful to managing mental or physical health, during which users will view and experience digital images, videos, and sounds by utilizing a virtual reality headset (together with all related documentation, the “Software”). This Agreement is a binding agreement between BehaVR, Inc, dba RealizedCare, (“BehaVR,” “we,” “us,” or “our”) and the person or entity accessing the Software (“you,” “your,” or “Customer”). BehaVR and Customer may be referred to herein together as the “Parties” or individually as a “Party.”
BY EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT, BY CLICKING “I AGREE”, OR BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND THAT YOU UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
If you are entering into this Agreement as an agent, employee, or representative of your employer, the term “Customer” means your employer and/or any other party on whose behalf you act, and you represent and warrant that you have the authority to act on such party’s behalf.
If Customer and BehaVR have executed an order form referencing this Agreement (an “Order Form”), such Order Form will be subject to, and incorporated into, the terms of this Agreement. In the event of a conflict between the Order Form and this Agreement, this Agreement will govern unless the Order Form specifically references the provision of this Agreement sought to be overridden.
1. Use of Software.
1.a License to Use. Subject to the terms of this Agreement, including the payment of the Subscription Fees set forth below, BehaVR grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Software. In connection with such use, Customer shall have the right to allow its employees and contractors (“Authorized Users”) to use the Software on Customer’s behalf, subject to their compliance with this Agreement, and provided that Customer shall remain liable for any non-compliance by Authorized Users. Any act or omission by an Authorized User that would constitute a breach of this Agreement if made by the Customer, shall be considered a breach by Customer. For purposes of clarity, the Software is licensed, not sold, to Customer.
1.b Documentation. Subject to the terms and conditions contained in this Agreement, BehaVR hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license during the Term to use BehaVR’s manuals, handbooks, and any other end-user documentation (collectively, the “Documentation”), as BehaVR may provide or make available the same from time to time in its discretion, solely for Customer’s own use in connection with its use of the Software.
1.c Hosting. Customer acknowledges that BehaVR’s Software operates on one or more third-party cloud computing platforms and that BehaVR shall have the right to change or add to the cloud computing platforms on which its Software operates.
1.d Geographic Restrictions. BehaVR is based in the United States, and the Software is provided for access and use ONLY BY PERSONS LOCATED IN THE UNITED STATES. Anyone outside the United States may not be able to access certain features of the Software, and such access by certain persons or in certain countries may not be legal. If Customer accesses the Software from outside the United States, Customer is responsible for compliance with all local laws, rules, and regulations. By using the Software, Customer represents and warrants that Customer is a lawful end user of this Software.
2. Access to and Use of the Software.
2.a Registration and Security. Customer may be required to register for an account to access the Software (“Account”), and to provide certain information in connection with Customer’s use thereof (“Customer Data”). Customer agrees, represents, warrants, and guarantees that all information and data that it provides, including the Customer Data, is true, accurate, complete, up-to-date, and solely Customer’s. Customer agrees it shall not impersonate, imitate, or pretend to be somebody else when it provides any information through the Software, or provide any information or data of another unless expressly requested or authorized by BehaVR. When Customer creates an Account and subsequently logs in, Customer will be asked to choose a password. Customer shall be responsible for safeguarding and maintaining the confidentiality of its login credentials, and it agrees not to disclose its login credentials to any third party. Customer will be solely responsible for any activities or actions taken under its Account, whether or not it has authorized such activities or actions. Customer must notify BehaVR immediately if it knows, becomes aware of, or otherwise suspects that any unauthorized person is using its login credentials or Account. Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users of Customer have access to the Software; (ii) that such Authorized Users have been trained in proper use of the Software; and (iii) proper usage of passwords, API keys, tokens and access procedures with respect to logging into and using the Software.
2.b Subscription Fees. As to any use of the Software provided for under an Order Form, Customer shall pay the fees set forth in such Order Form (the “Subscription Fees”). The Subscription Fees shall be paid on such dates and under such terms as is stipulated in the Order Form, as applicable. Unless otherwise expressly agreed in writing by BehaVR, all Subscription Fees shall be (A) non-cancellable and non-refundable; (B) paid in U.S. Dollars; and (C) exclusive of any taxes applicable to the Software or Customer’s use thereof. Additional fees and charges may be imposed by third-parties, including mobile application stores and other providers (“Third-Party Fees”). Third-Party Fees are the responsibility of Customer and the relevant third party, and BehaVR shall have no responsibility or liability with respect to the Third-Party Fees or the conduct or omissions of such third party, including without limitation, any responsibility for refunds or improper or unauthorized charges.
2.c Suspension. Notwithstanding anything to the contrary in this Agreement, BehaVR may suspend Customer’s and any Authorized User’s access to any portion or all of the Software if BehaVR determines, in its sole discretion, that: (i) there is a threat or attack on the Software or BehaVR’s intellectual property; (ii) Customers or any Authorized User’s use of the Software disrupts or poses a security risk to the Software, BehaVR, or any customer or vendor of BehaVR; (iii) Customer or any Authorized User is using the Software for fraudulent or illegal activities; (iv) BehaVR’s provision of the Software becomes prohibited by law; or (v) any vendor, licensor, or supplier of BehaVR has suspended or terminated BehaVR’s access to or use of any third-party products or services required to enable Customer to access the Software.
2.d Limitations on Use. The Software may be used and accessed for lawful purposes only. Customer agrees to abide by all applicable local, state, national, and foreign laws, rules, treaties, and regulations in connection with its use of the Software and its content, and to maintain a positive sense of decorum in all of its interactions on the Software and avoid profanity, rudeness, insults, scandalous words or actions, or otherwise inappropriate behavior while using the Software. In addition, without limitation, Customer agrees that it shall not do any of the following while using the Software:
Upload, post, e-mail, or otherwise transmit or submit any content to which Customer does not have the lawful right to copy, transmit, and display (including any content that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the content) or that infringes the intellectual property rights or violates the privacy rights of any third party (including without limitation copyright, trademark, patent, trade secret, or other intellectual property right, or moral right, or right of publicity);
Upload, post, e-mail, or otherwise transmit or submit harmful, threatening, abusive, harassing, defamatory, deceptive, fraudulent, obscene, indecent, vulgar, lewd, violent, hateful, or otherwise objectionable content or material, or material that is false, inaccurate, or misleading;
Circumvent, disable, or otherwise interfere with security-related features on the Software or features that prevent or restrict use or copying of any content;
Sell, resell, encumber, rent, lease, time-share, distribute, transfer, or otherwise use or exploit or make available any of the Software or the underlying content to or for the benefit of any third party (except as specifically contemplated herein);
Attempt to probe, scan, or test the vulnerability of any system or network operated by us, or breach or impair or circumvent any security or authentication measures protecting the platform;
Attack the Software via a denial-of-service attack or a distributed denial-of-service attack or otherwise attempt to interfere with the proper working of the Software;
Transmit or upload any material to the Software that contains viruses, trojan horses, worms, time bombs, or any other harmful or deleterious programs;
Attempt to decipher, decompile, disassemble, reverse engineer, or otherwise attempt to discover or determine the source code of any software or any proprietary algorithm used to provide the Software;
Use the Software in any way that competes with BehaVR; or
Encourage, collaborate with, or instruct any other person or entity to do any of the foregoing.
2.e Monitoring. BehaVR reserves the right, in its sole discretion, to audit or otherwise monitor any communication transmitted using the Software. BehaVR further reserves the right at all times to review, retain, and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process, governmental request, or business assessment, and to remove any information posted or otherwise submitted on the Software that BehaVR deems, in its discretion, inappropriate, illegal, or otherwise in violation of this Agreement. NOTWITHSTANDING THE FOREGOING, BEHAVR HEREBY DISCLAIMS ANY OBLIGATION TO MONITOR USE OF THE SOFTWARE OR TO RETAIN ANY CONTENT TRANSMITTED TO OR USING THE SOFTWARE, UNLESS OTHERWISE AGREED IN WRITING.
2.f System Requirements. Unless expressly agreed in writing by the Parties, Customer is solely responsible for obtaining, installing, and maintaining all hardware, software (including operating systems), systems, networks, web servers, connectivity, services, equipment, and other materials necessary for Customer’s use of the Software, including without limitation, as set forth in the Minimum System Requirements made available by BehaVR (the “Minimum System Requirements”). BehaVR has the right to update and modify the Minimum System Requirements at any time in its sole discretion, with or without notice, and with or without Customer’s consent.
2.g Third-Party Products. BehaVR may from time to time make third-party products available to Customer, Customer may choose to request integration of the Software with certain third-party products, and Customer may choose to use certain third-party products to access the Software (collectively, “Third-Party Products”). For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions, and BehaVR shall have no responsibility or liability for such Third-Party Products. Customer shall be solely responsible for complying with any licensing or other applicable terms of any Third-Party Products. A non-exhaustive list of Third-Party Products that may be made available by BehaVR or supported by the Software is available in the Minimum System Requirements, provided that inclusion on the list is not a representation, warranty, or guarantee that any Third-Party Product will be available or supported.
2.h Right to Modify the Software and Related Features; Additional Costs for Features. BehaVR reserves the right to modify the Software in its sole discretion without notice. Customer acknowledges that BehaVR will not be liable if, for any reason, all or any part of the Software is unavailable for any period of time. Periodically, BehaVR may restrict access to all or any portions of the Software. BehaVR may make these modifications at any time and for any reason without prior notice. Customer assumes any and all risk for decisions based on information contained within this Software. Likewise, from time to time, BehaVR might make certain features or functions available through the Software. Customer recognizes that BehaVR is not obligated to maintain any particular features or particular functions through the Software, and BehaVR may change, alter, modify, update, suspend, or remove altogether any features or functions from the Software at any time, in BehaVR’s sole and absolute discretion, without any liability to Customer. Furthermore, Customer acknowledges that certain features or functions may require additional fees or associated costs to access and use. Customer, in its sole discretion, may choose to incur said additional fees and costs, if it so desires to use the associated features and functionality.
3. Health and Safety.
3.a Side Effects. Customer acknowledges and agrees that, by accessing or using the Software or participating in any virtual reality activities or experiences offered on the Software, a user may experience adverse side effects, including without limitation, symptoms similar to motion sickness; dizziness; fatigue; disorientation; eye strain; impaired hand-eye coordination; altered, blurred, or double vision or other visual abnormalities; loss of awareness; impaired balance; nausea; lightheadedness; and discomfort or pain in the head or eyes. Customer acknowledges that some people (approximately one in four thousand) may experience SEVERE DIZZINESS, SEIZURES, EYE OR MUSCLE TWITCHING OR BLACKOUTS TRIGGERED BY LIGHT FLASHES OR PATTERNS while experiencing virtual reality, even if they have no history of seizures or epilepsy.
3.b Unintended Users. Customer acknowledges that the Software is not intended for anyone who is tired; needs sleep; is under the influence of alcohol or drugs; is hung-over; has digestive problems; or is suffering from cold or flu symptoms, headaches, migraines, or earaches, as these conditions can increase a user’s susceptibility to adverse symptoms. Additionally, Customer acknowledges that Customer, or any other end user, should consult with his or her doctor before using the Software if such Customer or end user is elderly, has a pacemaker or other implanted medical device, has pre-existing binocular vision abnormalities or psychiatric disorders, has a history of seizures or epilepsy, or suffers from a heart condition or other serious medical condition.
3.c Use Environment. While using any virtual reality components of the Software, Customer acknowledges that a user may not be able to see the physical space around him or her, and there is a risk of colliding with objects in his or her vicinity, such as chairs, tables, lamps, pets, and people. THE PROPER USE OF VIRTUAL REALITY COMPONENTS OF THE SOFTWARE IS SEATED IN A COMFORTABLE CHAIR AND TO REMAIN SEATED DURING USE.
3.d Waiver and Release. By accessing or using the Software or participating in any activities or experiences offered through the Software, Customer, on its own behalf and, as applicable, on behalf of any third party to whom Customer provides access to the Software, hereby:
Represents and warrants that use of the Software includes the risk of accidental physical injury or death, and the risk of adverse side effects that may be serious and may result in injury or death;
Knowingly assumes all of the risks associated with the Software and takes full responsibility for any damages, liabilities, losses, or expenses incurred by Customer or any other party, including BehaVR, in connection with the Software;
Waives, releases, covenants not to sue, and forever discharges any claims against BehaVR and its owners, co-venturers, financing sources, partners, officers, directors, managers, employees, agents, affiliates, successors, assigns, contractors, and licensors (“Representatives”) arising out of or in connection with use of the Software, including without limitation, personal, bodily, or mental injury and economic loss; and
Agrees to indemnify, defend, and hold harmless BehaVR and its Representatives from and against any harm, injury, damage, claims, demands, actions, causes of action, costs, and expenses of any nature that Customer or Customer’s assigns, heirs, next of kin, spouse, legal representatives, permitted users, Authorized Users, or any other party may have or that may hereafter accrue arising out of or in connection with the Software. For clarity, neither BehaVR nor its Representatives shall be liable for any damages, liabilities, losses, or expenses incurred in connection with the Software, and shall be under no obligation to monitor, supervise, or otherwise oversee the Software.
3.e Interpretation. This Section 3 is intended to be as broad and inclusive as permitted by applicable law, and Customer agrees that if any portion of this Section 3 is held invalid, the balance shall remain in full force and effect. Customer acknowledges and agrees that BehaVR is relying on the representations and agreements in this Section 3 in agreeing to allow Customer to use the Software. Customer acknowledges that it has given up substantial rights, and assumed substantial liabilities, by making the foregoing representations and agreements, and accepts them freely and voluntarily, on Customer’s own behalf and on behalf of any third party to whom Customer provides access to the Software, without inducement.
3.f Not Medical Advice. Customer acknowledges and agrees that, unless BehaVR expressly states otherwise in writing, any information or advice provided in connection with the Software is not meant to be medical advice, and Customer may not and agrees not to use it as such. Customer understands that users should consult their physicians or other healthcare professionals before making any lifestyle or behavior changes or discontinuing any prescription medications that may affect any medical plan of care, as established by a physician or other health care professional. The Software, including any chat features, bots, or contact forms, does not connect users with a live physician or other professional.
4. Intellectual Property.
4.a Ownership of Software. Customer acknowledges and agrees that, as between Customer and BehaVR, BehaVR owns all right, title, and interest in the Software and Documentation, and in the underlying intellectual property thereof. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement shall be construed to grant Customer or any third party any rights in the Software or Documentation, or in the underlying intellectual property thereof. BehaVR reserves all rights not expressly granted to Customer in this Agreement.
4.b Customer Content and License of Intellectual Property Rights. You grant us a worldwide, non-exclusive, royalty-free, sub-licensable, and transferable license to copy, publish, display, reproduce, or otherwise use in any manner, all of the information or content, including any text, document, image, or video that you upload, submit, or otherwise provide to or through the Software (collectively, “Customer Content”). WHEN YOU POST, SUBMIT, OR OTHERWISE PROVIDE CUSTOMER CONTENT, YOU REPRESENT AND WARRANT THAT THE CUSTOMER CONTENT DOES NOT INFRINGE THE RIGHT(S) OF ANY OTHER PARTY AND THAT YOU HAVE THE RIGHT TO SUBMIT SUCH CUSTOMER CONTENT. You further agree that you will indemnify, defend, and hold harmless BehaVR, from and against any and all third-party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs, or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) arising out of, in connection with, or resulting from any violation or alleged violation regarding your Customer Content and a third party’s proprietary or intellectual property rights.
4.c Copyright Infringement. If any party alleges intellectual property infringement against any Customer Content or any Customer, we reserve the right to terminate or suspend the access of any allegedly infringing Customer, conduct our own investigation, and take any other action we deem necessary, advisable, or reasonable, in our sole discretion, including as needed to comply with any applicable copyright, trademark, trade secret, or patent law, such as the Digital Millennium Copyright Act of 1998 (“DMCA”), the Lanham Act, and other applicable federal or state intellectual property laws. If you believe that a user of the Software is infringing your intellectual property rights, PLEASE SEND NOTICE OF THIS ACTION TO BEHAVR, IMMEDIATELY, in accordance with our DMCA Policy.
4.d Feedback and Suggestions. All feedback, suggestions, ideas, and other submissions disclosed, submitted, or offered to BehaVR or otherwise disclosed, submitted, or offered concerning the Software in connection with Customer’s use of the Software (collectively, “Feedback”) will be BehaVR’s property, and BehaVR shall own all rights, title, and interest therein and thereto. Such disclosure, submission, or offer of any Feedback will constitute an assignment to BehaVR of all worldwide rights, titles, and interests in all copyrights and other intellectual property in the Feedback. BehaVR will be under no obligation to (i) maintain any Feedback in confidence; (ii) pay any compensation for any Feedback; or (iii) respond to any Feedback.
5. Confidentiality.
5.a Confidential Information. Through the Software, Customer may have access to information that is confidential or proprietary to BehaVR. For purposes of this Agreement, “Confidential Information” means the non-public information of BehaVR or any affiliate or third party that is disclosed or made available to Customer in connection with the Software or Customer’s use thereof, whether disclosed or made available in written, oral, electronic, visual, or other form and whether identified as confidential at the time of disclosure or not, including without limitation, information regarding BehaVR’s business, operations, finances, technologies, current and future products and services, pricing, personnel, customers, or suppliers. Without limiting the generality of the foregoing, Confidential Information includes the Software.
5.b Restrictions on Use and Disclosure of Confidential Information. Customer may use BehaVR’s Confidential Information solely as necessary for use of the Software pursuant to this Agreement. Customer shall maintain the confidentiality of BehaVR’s Confidential Information using at least the same degree of care that Customer uses to protect its own information of a similarly confidential or proprietary nature, but in no event less than a reasonable degree of care. The Customer shall not disclose the Confidential Information to any third party without BehaVR’s prior written consent; provided, however, that Customer may disclose Confidential Information if required by law and provided the Customer provides prompt notice of such requirement and disclosure to BehaVR to the extent allowed by law. Confidential Information so disclosed shall continue to be deemed Confidential Information.
6. Data.
6.a Customer Data. By providing Customer Data to BehaVR, Customer grants to BehaVR a non-exclusive, transferable, irrevocable, royalty-free and fully paid-up license to use the Customer Data for purposes of providing the Software, analyzing user needs, improving and enhancing the Software, as well as any other commercial or business purpose BehaVR deems reasonably necessary or appropriate. As between BehaVR and Customer, Customer is solely responsible for the content, quality, and accuracy of Customer Data, for securing any necessary approvals for BehaVR’s use of the Customer Data as provided for herein, and for ensuring that the Customer Data complies with all applicable laws, rules, and regulations. Furthermore, by providing Customer Data to BehaVR, Customer represents and warrants that Customer has all rights necessary to transmit Customer Data to BehaVR, and that BehaVR’s use of the Customer Data in connection with this Agreement will not violate the privacy, intellectual property, or other rights of any third party, or any applicable laws, rules, or regulations. BehaVR is not responsible for Customer Data transmitted to the Software, nor is BehaVR responsible for Customer Data once it leaves the Software. Customer Data does not include Usage Data, which shall be the property of BehaVR.
6.b Personal Data. When using the Software, Customer acknowledges it may be required to provide its name, telephone number(s), e-mail, organization information, and/or street address, as well as other personally identifiable information (“Personal Data”). Personal Data shall also include any personally identifiable information about Customer’s Authorized Users, employees, personnel, or customers. By providing such Personal Data, Customer acknowledges and agrees that BehaVR may collect, process, store, and otherwise use and hold that Personal Data in accordance with its Privacy Policy, which is herein incorporated by reference together with the terms in this Agreement.
6.c Usage Data. Customer agrees that BehaVR may receive, collect, store, transmit, process, analyze, and use non-personally identifiable data or information related to Customer’s use of the Software (“Usage Data”). The Parties agree that BehaVR owns all rights, title, and interest in and to the Usage Data and may use Usage Data for any purpose, including improving, testing, evaluating, and providing the Software.
6.d Third-Party Products. You may be required to use Third-Party Products, including VR headsets, in order to access and use the Software. By using such Third-Party Products, you acknowledge and agree that BehaVR has no control over, assumes no responsibility for, and hereby disclaims all liability in connection with, the data collection, use, sharing, or other practices of the third-party provider. You are responsible for reviewing the privacy policies of all Third-Party Products before using the same in connection with the Software.
7. Term and Termination.
7.a Term. The term of this Agreement shall commence on the date that Customer installs or otherwise accesses the Software and shall continue until canceled or terminated pursuant to the terms of this Agreement.
7.b Termination. This Agreement shall automatically terminate when Customer uninstalls or otherwise removes the Software from all of its devices. In addition, BehaVR may terminate this Agreement at any time, for any reason, with or without notice and without any obligations to Customer whatsoever.
7.c Effect of Termination. Upon termination, cancellation, or expiration of this Agreement, (i) all rights granted to Customer under this Agreement shall immediately cease; and (ii) Customer shall immediately cease all use of the Software and Documentation and delete all copies thereof, and of the Confidential Information, from all devices of Customer. The terms set forth in the following sections, and any other right, obligation, or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, shall so survive, including without limitation the following provisions: 2, 3, 4, 5, 6, 7, 8, 9, 10, and 12.
8. Disclaimer.
8.a Reliance on Information Posted. The information presented on or through the Software is made available solely for business information purposes. Any reliance Customer places, or decisions Customer makes, on such information is strictly at Customer’s own risk. BehaVR disclaims all liability and responsibility arising from any reliance placed on these Software, Documentation, or any related materials by Customer, Customer’s Authorized Users, or any other user of the Software, or by anyone who may be informed of any of its contents.
8.b DISCLAIMER. THE SOFTWARE, DOCUMENTATION, AND ALL INFORMATION CONTAINED THEREIN ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. BEHAVR, TOGETHER WITH ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AND REPRESENTATIVES, HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. BEHAVR DISCLAIMS ALL WARRANTIES WHETHER ARISING OUT OF LAW, STATUTE, COURSE OF DEALING, TRADE USAGE, OR ANY OTHER RELATIONSHIP. BEHAVR MAKES NO WARRANTIES WITH REGARD TO THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, FUNCTIONALITY, TIMELINESS, SPEED, OR ACCESSIBILITY OF ANY INFORMATION SUPPLIED WITHIN THE SOFTWARE, AND BEHAVR DOES NOT WARRANT THAT THE SOFTWARE, DOCUMENTATION, OR ANY INFORMATION CONTAINED THEREIN WILL BE OPERATIONAL, SECURE, ERROR-FREE, OR VIRUS FREE. BEHAVR DISCLAIMS ALL OBLIGATIONS, RESPONSIBILITY, OR LIABILITY FOR THE THIRD-PARTY PRODUCTS.
9. Indemnification.
Customer will indemnify, defend, and hold harmless BehaVR, its licensors, and its affiliates, and their respective directors, officers, employees, contractors, agents, and representatives, from and against any and all claims, causes of action, demands, liabilities, losses, costs or expenses, including without limitation, reasonable attorneys’ fees and expenses, arising out of, in connection with, or resulting from (a) Customer’s access to or use of the Software; (b) Customer’s violation of any of the provisions of this Agreement; (c) any activity related to Customer’s Account, whether by Customer or any other person accessing the Software through Customer’s Account, including, without limitation, negligent or wrongful conduct; or (d) Customer’s violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right. BehaVR reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will cooperate with BehaVR in asserting any available defenses. For purposes of clarity, these indemnification obligations apply to Customer’s use of the Software, Documentation, Third-Party Products, or any of the content or information contained therein other than as expressly authorized in this Agreement, as well as any information Customer provides to, through, or in relation to the Software.
10. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER HEREBY RELEASES BEHAVR, TOGETHER WITH ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AND REPRESENTATIVES, FROM ALL LIABILITY ASSOCIATED WITH THIS AGREEMENT AND CUSTOMER’S, AND/OR ITS AUTHORIZED USER(S)’, USE OF THE SOFTWARE. CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS RESPONSIBLE FOR ANY ACTIONS CUSTOMER OR ITS AUTHORIZED USERS TAKE WITH THE SOFTWARE, AND FOR ANY ACTIONS TAKEN ON OR THROUGH CUSTOMER’S ACCOUNT, WHETHER OR NOT AUTHORIZED BY CUSTOMER. CUSTOMER AGREES THAT ITS USE OF THE SOFTWARE, INCLUDING ITS AUTHORIZED USERS’ USE, AND ANY SUBSEQUENT ACTIONS ARISING FROM SUCH USE OF THE SOFTWARE ARE TAKEN SOLELY AT CUSTOMER’S OWN RISK. IN NO EVENT WILL BEHAVR, ITS DIRECTORS, ITS OFFICERS, ITS EMPLOYEES, ITS CONTRACTORS, ITS AGENTS, OR ITS REPRESENTATIVES, BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY OR UNDER ANY EQUITABLE THEORY, ARISING OUT OF OR IN CONNECTION WITH ANY USE BY CUSTOMER, CUSTOMER’S AUTHORIZED USER(S), OR ANY OTHER PERSON OR ENTITY, OF THE SOFTWARE, DOCUMENTATION, THIRD-PARTY PRODUCTS, AND ANY CONTENT OR INFORMATION OF ANY OF THE FOREGOING, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW, WHICH SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH LAW. ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE AGAINST BEHAVR ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY WAIVED AND BARRED.
11. Additional Terms for Apple and Google
11.a Additional Terms for Users Who Download The Software through the Apple Store. The following additional terms apply to you, if you download the Software through the Apple Store:
This Agreement is applicable between BehaVR and you, but not Apple, Inc. (“Apple”). BehaVR, not Apple, offers the Software to you, and Apple has no responsibility to you for any use of, or information related to, the Software and this Agreement.
Apple has no obligation to provide maintenance and support services with respect to the Software, as used on your iPhone, iPad, or iPod touch Mobile Devices. In the event of any failure of the Software to conform with any applicable warranty, you may notify Apple regarding a refund of your purchase price of the Software; Apple shall have no other obligations with respect to failures of the Software. For reference, review Section 8, above, for our “Disclaimer.”
Should you have any claim, whether your own claim or whether a third-party claim has been filed against you, relating to your possession or use of the Software, Apple shall have no responsibility to you.
You and BehaVR hereby acknowledge and agree that Apple and its subsidiaries are third-party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple, as a third-party beneficiary, will receive (and otherwise shall be deemed to have received) the right to enforce this Agreement against you. Additionally, you agree to comply with applicable third party terms of agreement when using the Software.
You represent and warrant that (A) you are not located in a country that is subject to a United States Government embargo, or that has been designated by the United States Government as a “terrorist supporting” country; and (B) you are not listed on any United States Government list of prohibited or restricted parties.
11.b Additional Terms for Users Who Download The Software through Google Play. The following additional terms apply to you, if you download the Software through Google Play:
This Agreement is applicable between BehaVR and you, but not Google, Inc. (“Google”). BehaVR, not Google, offers the Software to you, and Google has no responsibility to you for any use of, or information related to, the Software and this Agreement.
Google has no obligation to undertake or provide maintenance or support services with respect to the Software. In the event of any defect or performance issue in the Software, the End User should notify BehaVR, not Google. Google shall not be responsible to you for any complaints you have regarding the Software, as used on your Android Mobile Device.
12. General Provisions.
12.a Governing Law; Venue; Waiver of Jury Trial. This Agreement shall be construed, governed, and enforced under the laws of the United States and the State of Tennessee (without regard to rules governing conflict of laws). Customer agrees that venue for all actions, relating in any manner to this Agreement, shall be in the United States District Court of the Middle District of Tennessee and of any Tennessee state court sitting in Davidson County, Tennessee. Each Party waives any objection based on forum non conveniens and waives any objection to venue of any action instituted hereunder to the extent that an action is brought in the courts identified above. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.b No Relationship; No Third-Party Beneficiaries. Nothing herein shall be construed to create a joint venture, partnership, franchise, syndication, or other similar relationship between the Parties. Neither Party shall have any right to obligate or bind the other Party in any manner whatsoever, and nothing herein contained shall give or is intended to give any rights of any kind to any third persons.
12.c Assignment. Customer may not assign, transfer, or delegate any of its rights or obligations under this Agreement without the prior written consent of BehaVR. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. BehaVR may assign, transfer, or delegate all or any of its rights and/or obligations under this Agreement, without consent or notice, in whole or in part. BehaVR may use subcontractors in connection with the provision of the Software. Subject to the foregoing, this Agreement shall be binding upon the permitted successors and assigns of each Party.
12.d Severability. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions will continue in full force and effect.
12.e Modification; Waiver. BehaVR shall have the right to modify this Agreement at any time, with or without notice, in its sole discretion, and Customer’s continued use of the Software shall be considered acceptance of those modifications. Subject to the foregoing, no modification or amendment of this Agreement, including any inconsistent, additional, or conflicting terms contained in any purchase order or order form of Customer, shall be binding upon BehaVR unless BehaVR consents to such terms in a signed writing. No waiver by BehaVR of any term or condition set forth herein shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of BehaVR to assert a right or provision shall not constitute a waiver of such right or provision.
12.f Force Majeure. BehaVR shall have no liability for failure to perform under this Agreement if the failure results, directly or indirectly, from government action or inaction, mechanical or electrical breakdown, war, civil unrest, natural disaster, pandemic or epidemic, or other cause beyond its reasonable control (a “Force Majeure Event”).
12.g Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under this Agreement would cause BehaVR irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Customer will be entitled to equitable relief, including in a restraining order, injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
12.h Attorneys’ Fees. In the event institution of, participation in, or defense of any action, suit, or other legal or administrative proceeding is deemed necessary by BehaVR, in its sole discretion, in order to protect the rights and interest of BehaVR or to enforce any provision of this Agreement, BehaVR shall be entitled to recover its attorneys’ fees and court costs from Customer.
12.i US Government Rights. Each of the Documentation and the Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the U.S. Government or any contractor therefor, Customer only receives those rights with respect to the Software and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
12.j Export Regulation. The Software may be subject to U.S. export control laws, including the U.S. Export Control Reform Act and its associated regulations. Customer will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction, or individual to which export, re-export, or release is prohibited by applicable law, rule, or regulation. Customer will comply with all applicable laws, rules, and regulations, and will complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the U.S.
12.k Notices. The Parties agree that any notice, request, consent, claim, demand, waiver, or other communication sent under this Agreement will be effective: (i) if to Customer, when sent by email, when posted or displayed on the Software, or when otherwise transmitted by or on behalf of BehaVR by any other means or method; or (ii) if to BehaVR, when actually received by BehaVR via personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case return receipt requested, postage pre-paid) at BehaVR, Inc, 1690 Ring Rd., Suite 110 Elizabethtown, Kentucky 42701. BehaVR may update its notice address at any time by notifying Customer in accordance with this Section 12(k).
12.l Entire Agreement. This Agreement represents the entire agreement between Customer and BehaVR with respect to the subject matter hereof, and supersedes all prior proposals, representations, and agreements, whether written or oral, with respect thereto. Unless otherwise specified or agreed in writing by BehaVR, this Agreement shall govern with respect to all services, materials, and purchases related to the Software, whether submitted through electronic transmissions or otherwise. Any additional or different terms in any other agreements, acknowledgments, or other documents will not be effective unless provided by, or expressly agreed to in writing by, BehaVR.