IMMERSIVE TECH INC.
END USER LICENSE TERMS
These Immersive Tech Inc. End User License Terms (these “Terms”) govern your access and use of the surgical training software, mobile application, and the live surgical feeds made available therein (the “Licensed Application”) provided by Immersive Tech Inc. in connection with the agreement between us and the institution with which you are employed or otherwise affiliated (your “Institution”) authorizing you to access and use the Licensed Application. By creating an account or by using the Licensed Application, you agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 11. If you do not agree to these Terms, do not use the Licensed Application.
These Terms are effective as of the date you first access the Licensed Application and remain effective until your access to the Licensed Application has been terminated under the terms of the agreement between us and your Institution authorizing you to access and use the Licensed Application. Notwithstanding any terms to the contrary in that agreement, we reserve the right to modify the Licensed Application or to suspend or stop providing all or portions of the Licensed Application at any time. You also have the right to stop using the Licensed Application at any time. We are not responsible for any loss or harm related to your inability to access or use the Licensed Application, including, without limitation, if your inability to access or use the Licensed Application results from termination or expiration of the agreement between us and your Institution authorizing you to access and use the Licensed Application. Please contact your Institution if your access or use of the Licensed Application is suspended or terminated.
You need to register for an account to access the Licensed Application. You must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account and promptly notify us if you discover or suspect that someone has accessed your account without your permission. You are responsible for all activities that occur in connection with your account.
3. Third-Party Services
The Licensed Application integrates with certain third-party products, services, websites, links, content, or applications (“Third-Party Services”). By using the Licensed Application, you grant us permission to access Third-Party Services on your device for us to provide the Licensed Application’s functionality to you. We integrate Third-Party Services into the Licensed Application solely as a convenience to you. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Services are solely between you and the third party. We do not control or endorse, and make no representations or warranties regarding, any Third-Party Services, and your access to and use of such Third-Party Services is at your own risk.
You will not violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort, and you are solely responsible for your conduct while using the Licensed Application. You will not:
- modify, disclose, alter, translate, or create derivative works of the Licensed Application (or any components thereof),
- license, sublicense, resell, distribute, lease, rent, lend, transfer, assign, or otherwise dispose of the Licensed Application (or any components thereof),
- disassemble, decompile, or reverse engineer the software components of the Licensed Application,
- use the Licensed Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights,
- use the Licensed Application to store or transmit any viruses, software routines or other code designed to permit unauthorized access, disable, erase, or otherwise harm software, hardware, or data, or to perform any other harmful actions,
- copy, frame, or mirror any part or content of the Licensed Application,
- build a competitive product or service, or copy any features or functions of the Licensed Application,
- attempt to gain unauthorized access to the Licensed Application or their related systems or networks,
- remove, alter, or obscure any proprietary notices in or on the Licensed Application, including copyright notices,
- interfere in any manner with any other user’s enjoyment of the Licensed Application, or
- cause or permit any third party to do any of the foregoing.
5. Application Data
We may collect, use, reproduce, display, aggregate, modify and create derivative works of data and content related to your use of the Licensed Application, including data and content input into the Licensed Application by you and technical and usage data (“Application Data”) to permit us to understand, improve and provide the Licensed Application and related data analytics and reporting to you and for other Immertec business purposes subject to the licenses below. You grant to Immertec:
- a perpetual, irrevocable, worldwide, non-exclusive license to use, reproduce, aggregate (including with other users’ data), publish, display and distribute any anonymous information or data derived from Application Data for any purpose, and
- a perpetual, irrevocable, worldwide, non-exclusive license to use, reproduce, publish, display and distribute any information or data derived from Application Data in any manner on behalf of you, your Institution, or your Institution’s designees and as may be necessary for us to provide you and your Institution with the Licensed Application and/or other services, including, without limitation, additional services as may be requested by you or your Institution and agreed upon by Immertec.
You may not create, post, upload, store, or share any Application Data that violates these Terms or for which you do not have all the rights necessary to grant us the license described above. You represent and warrant that any Application Data posted by you, and our use of such Application Data as permitted by these Terms, will not violate any rights of or cause injury to any person or entity. Although we have no obligation to screen, edit or monitor Application Data, we may delete or remove Application Data at any time and for any reason with or without notice
6. Ownership; Limited License
The Licensed Application, including the text, graphics, images, photographs, videos, illustrations and other content contained therein, are owned by us or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Licensed Application are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use the Licensed Application for your own personal, noncommercial use. Any use of the Licensed Application other than as specifically authorized herein, without our prior written permission, is strictly prohibited, will terminate the license granted herein, and will violate our intellectual property rights.
The Licensed Application name and logo and the look and feel of the Licensed Application are our trademarks and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on the Licensed Application are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by us.
Any suggestions, comments, or other feedback provided by you to us with respect to The Licensed Application or us (collectively, “Feedback”) will constitute our confidential information. We will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback provided to it as we see fit, entirely without obligation or restriction of any kind, on account of intellectual property rights or otherwise.
You agree, at your sole expense, to defend, indemnify and hold us (and our directors, officers, employees, consultants, and agents) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest, and disbursements) that we (or our directors, officers, employees, consultants, or agents, individually or collectively) incur and are caused by, arise out of, result from, are attributable to, or are in any way incidental to any of your conduct or any actual or alleged breach of any of your obligations under these Terms.
10. Disclaimers and Limitation of Liability
YOUR USE OF THE LICENSED APPLICATION AND ANY THIRD-PARTY SERVICES IS AT YOUR SOLE RISK. THE LICENSED APPLICATION AND SUCH THIRD-PARTY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE LICENSED APPLICATION OR ANY THIRD-PARTY SERVICES, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, NON-INFRINGEMENT, AND CONDITION OF TITLE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THE LICENSED APPLICATION OR ANY THIRD-PARTY SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE LICENSED APPLICATION EXCEED ONE HUNDRED U.S. DOLLARS (USD $100.00).
11. Dispute Resolution; Binding Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH US AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.
In the event of any controversy or claim arising out of or relating in any way to these Terms or The Licensed Application, each of us agrees to consult and negotiate with the other and, recognizing our mutual interests, try to reach a solution satisfactory to both parties. If we do not reach a settlement within a period of 60 days, then either of us may, by notice to the other, demand mediation under the mediation rules of the American Arbitration Association in Tampa, Florida.
We both give up our right to litigate our disputes and may not proceed to arbitration without first trying mediation, but neither party is required to arbitrate any dispute in which either party seeks equitable and other relief from the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. Except as otherwise required under applicable law, each of us intends and agrees (a) not to assert class action or representative action procedures and agrees that they will not apply in any arbitration involving the other, (b) not to assert class action or representative action claims against the other in arbitration or otherwise, and (c) that each of us will only submit individual claims in arbitration and will not seek to represent the interests of any other person or entity.
If a settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim will be resolved by arbitration in accordance with the rules of the American Arbitration Association before a single arbitrator in Tampa, Florida. The language of all proceedings and filings will be English. The arbitrator will render a written opinion including findings of fact and law and the award and/or determination of the arbitrator will be binding on the parties, and their respective administrators and assigns, and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction.
The expenses of the arbitration will be shared equally by the parties unless the arbitrator determines that the expenses will be otherwise assessed, and the prevailing party may be awarded its attorneys’ fees and expenses by the arbitrator. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within 90 days from the date the arbitrator is appointed. The arbitrator may extend this time limit only if failure to do so would unduly prejudice the rights of the parties. Failure to adhere to this time limit will not constitute a basis for challenging the award. Consistent with the expedited nature of arbitration, pre-hearing information exchange will be limited to the reasonable production of relevant, non-privileged documents, carried out expeditiously.
You have the right to opt-out of binding arbitration within 30 days of the date you first accepted the terms of this arbitration agreement by sending an email to firstname.lastname@example.org. In order to be effective, the opt-out notice must include your full name and address and clearly indicate your intent to opt-out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 12 of these Terms.
If any portion of this arbitration agreement is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision will be severed from these Terms, (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this arbitration agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this arbitration agreement, and (iii) to the extent that any claims must, therefore, proceed on a class, collective, consolidated, or representative basis, such claims will be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this arbitration agreement is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this arbitration agreement will be enforceable.
Any dispute arising from these Terms and your use of the Licensed Application will be governed by and construed and enforced in accordance with the laws of the State of Florida, except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of the State of Florida and the United States, respectively, sitting in Hillsborough County, Florida.
These Terms constitute the entire agreement between the parties regarding your access to and use of the Licensed Application. If any provision or part of a provision of these Terms is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. Notwithstanding any other provisions of these Terms, Sections 4 through 13 of these Terms survive any expiration or termination of these terms. Our failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.
You agree that communications and transactions between us may be conducted electronically. These Terms may not be transferred, assigned or delegated by you, by operation of law or otherwise, without our prior written consent, and any attempted transfer, assignment or delegation without such consent will be void and without effect. We may freely transfer, assign or delegate these Terms or The Licensed Application, in whole or in part, without your prior written consent.
If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to 220 W 7th Ave STE210, Tampa, FL 33602 with your electronic mail address and a request for these Terms. Under California Civil Code Section 1789.3, California Website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
13. Additional Terms Applicable to Mobile Devices
The following terms apply if you install, access, or use the Licensed Application on any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).
- Acknowledgment. You acknowledge that these Terms are concluded solely between you and us, and not with Apple, and we, not Apple, are solely responsible for the iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service as of the date you download the iOS App, and in the event of any conflict, the Usage Rules in the App Store will govern if they are more restrictive. You acknowledge and agree that you have had the opportunity to review the Usage Rules.
- Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch, or iPad that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
- Maintenance and Support. The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App.
- Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the iOS App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such applicable warranty would be our sole responsibility. However, you understand and agree that in accordance with these Terms, we have disclaimed all warranties of any kind with respect to the iOS App, and therefore, there are no warranties applicable to the iOS App.
- Product Claims. The parties acknowledge that as between Apple and us, we, not Apple, are responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
- Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s intellectual property rights, we, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
- Legal Compliance. You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Developer Name and Address. Any questions, complaints, or claims with respect to the iOS App should be directed to:
Immersive Tech Inc.
220 W 7th Ave STE210, Tampa, FL 33602
- Third-Party Terms of Agreement. You agree to comply with any applicable third-party terms when using The Licensed Application.
- Third-Party Beneficiary. The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
The following terms apply if you install, access or use the Licensed Application on any device that contains the Android mobile operating system (the “Android App”) developed by Google, Inc. (“Google”):
- You acknowledge that these Terms are between you and us only, and not with Google.
- Your use of the Android App must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for the Android App and The Licensed Application and content available thereon. Google has no obligation or liability to you with respect to the Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to these Terms as they relate to the Android App.