|END USER LICENSE AGREEMENT
1. Ownership of the Licensed Application. The Licensed Application is the valuable property of HVS and our licensors and is protected by copyright and other intellectual property laws and treaties. HVS, and our licensors, own all right, title and interest in and to the Licensed Application, including all copyright and other intellectual property rights therein. HVS reserves all rights not expressly granted to you.
2. Scope of License to the Licensed Application. The Licensed Application is licensed, not sold, to you. Subject to the terms and conditions of this Agreement, HVS grants you a limited, non-exclusive, non-transferable license to download, install and use the Licensed Application on the Oculus Rift (the "Device") that you own or control and as permitted in the Terms of Service provided by Oculus VR, LLC (the "Usage Rules"). The terms of this license will govern any upgrades provided by HVS that replace or supplement the original License Application, unless an upgrade is accompanied by a separate license in which case the terms of that separate license will govern.
3. License Restrictions. The license granted to you in Section 2 does not allow you to do any of the following: (a) use the Licensed Application on any Device you do not own or control; (b) distribute, copy, license, rent, sell, publish, lease or otherwise transfer the Licensed Application (except as expressly permitted by this Agreement or the Usage Rules) or any proprietary materials of HVS to any third party; (c) reverse engineer, decompile, disassemble or attempt to discover any source code or trade secrets related to the Licensed Application or any proprietary materials of HVS; (d) modify, alter or create any derivative works of the Licensed Application or based on any proprietary materials of HVS; (e) remove, alter, or obscure any copyright, trademark or other proprietary rights notice on or in the Licensed Application; (f) work around any technical limitations in the Licensed Application; or (g) use the Licensed Application for purposes for which it was not designed. Unless explicitly stated herein or otherwise by HVS, nothing in this Agreement shall be construed as conferring any right or license to intellectual property rights, whether by estoppel, implication or otherwise. If you breach any of these restrictions, you may be subject to prosecution and damages.
4. Support Services. HVS will provide support for the Licensed Application. Support is available by emailing email@example.com. You may also visit www.high-voltage.com/contact.htm for more information about support. If you have any questions regarding the Licensed Application, please contact us at Community@high-voltage.com. Other than billing inquiries, Oculus VR, LLC has no obligation whatsoever to furnish any support or maintenance services with respect to the Licensed Application.
5. Product Claims. Other than billing inquiries, HSV, not Oculus VR, LLC, is responsible for addressing any questions, comments or claims relating to the Licensed Application or your possession and use of the Licensed Application, including but not limited to: (a) product liability claims; (b) any claim that the Licensed Application fails to conform to the applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. If you have any questions or comments, please contact HVS at:
High-Voltage Software, Inc.
2345 Pembroke Avenue
Hoffman Estates, IL 60169
7. Services; Additional Terms. The Licensed Application may enable access to services and websites provided by HVS and third parties (collectively and individually, the "Services"). Your use of the Services may require your acceptance of, and compliance with, additional terms provided by HVS or such third parties (collectively, "Additional Terms").
8. No Warranty. YOU ACKNOWLEDGE AND AGREE THAT: (A) THE LICENSED APPLICATION AND SERVICES MAY CONTAIN BUGS, ERRORS, AND DEFECTS; (B) USE OF THE LICENSED APPLICATION AND SERVICES IS AT YOUR SOLE RISK; AND (C) THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. ACCORDINGLY, THE LICENSED APPLICATION AND SERVICES ARE PROVIDED "AS IS," "AS AVAILABLE," WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTY OF ANY KIND. HVS DISCLAIMS ALL WARRANTIES (EXPRESS AND IMPLIED AND ARISING BY LAW OR OTHERWISE) REGARDING THE LICENSED APPLICATION AND SERVICES AND THEIR PERFORMANCE OR SUITABILITY FOR YOUR INTENDED USE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY AND NON-INFRINGEMENT. HVS SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF, OR INABILITY TO USE, THE LICENSED APPLICATION, SERVICES OR ANY SERVICE THAT THE LICENSED APPLICATION IS INTENDED TO ACCESS OR FOR ANY LOSS OF DATA. HVS DOES NOT REPRESENT OR WARRANT THAT THE LICENSED APPLICATION OR SERVICES WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS (“FAULTS”) OR IN A SECURE MANNER OR THAT ANY FAULTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY HVS OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. IN THE EVENT THAT THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
OCULUS VR, LLC HAS NO WARRANTY OBLIGATION WHATSOEVER WITH RESPECT TO THE LICENSED APPLICATION OR SERVICES AND ANY OTHER CLAIMS, LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES ATTRIBUTABLE TO ANY FAILURE OF THE LICENSED APPLICATION.
The laws of some states or jurisdictions do not allow the exclusion of implied warranties. To the extent that those laws apply, the exclusions set forth above may not apply to you.
9. Indemnification. To the fullest extent permitted by applicable law, you agree to defend, indemnify, and hold harmless HVS, its affiliates, independent contractors and service providers, and each of their respective members, shareholders, directors, offices, employees and agents ("Representatives") from and against all claims, damages, costs, liabilities and expenses (including but not limited to reasonable attorneys' fees) arising out of or related to your download or installation of and access to, or inability to download, install or access, the Licensed Application or the Services. In the event of any claim that the Licensed Application, or your possession or use thereof, or Services infringe any intellectual property rights of a third party, you agree to contact HVS directly, and Oculus VR, LLC will not be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. HVS will, at its option and expense, terminate the license granted herein, settle or defend the claim.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) HVS AND ITS REPRESENTATIVES SHALL HAVE NO LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE OR OTHERWISE) FOR ANY DAMAGES SUSTAINED BY YOU ARISING FROM YOUR DOWNLOAD OR INSTALLATION OF, OR ACCESS TO, THE LICENSED APPLICATION OR SERVICES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOSS OF DATA, EVEN IF HVS OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) YOU CAN RECOVER ONLY DIRECT DAMAGES FOR THE GREATER OF $10.00 AND THE AMOUNT YOU PAID FOR THE LICENSED APPLICATION.
11. No Export. You may not use or otherwise export or re-export the Licensed Application or any content contained therein, except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application or any content was obtained. In particular, but without limitation, the Licensed Application and the content contained therein may not be exported or re-exported to (a) any U.S. embargoed countries, or (b) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List.
12. Legal Compliance. By downloading and installing the Licensed Application, 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. You will comply with all applicable laws, rules and regulations, including but not limited to U.S. export control laws.
13. Commercial Items. If acquired by any agency of the United States government, such agency acknowledges that: (a) the Licensed Application constitutes "commercial computer software" or "commercial computer software documentation" for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable and (b) such agency's rights are limited to those specifically granted under this Agreement.
14. Third-Party Beneficiaries. Oculus VR, LLC is a third-party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Oculus VR, LLC will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
15. Termination. Any use of the Licensed Application or Services other than as specifically authorized under this Agreement or the Additional Terms, without the prior written permission of HVS, is strictly prohibited and will immediately terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. You may terminate this Agreement at any time by (a) ceasing use of the Licensed Application and Services and (b) deleting all copies of the Licensed Application in your possession or control. HVS reserves the right to terminate this Agreement at any time, for any or no reason. In the event of termination, the license granted to you herein will automatically terminate and you must immediately cease all use of the Licensed Application and Services and destroy all copies of the Licensed Application within your possession or control.
16. Survival. Sections 1, 3, 5, 6, 8-14, 15 (last sentence only) and 16-21 of this Agreement shall survive any termination of this Agreement.
17. Modifications. HVS reserves the right to modify or discontinue, temporarily or permanently, the Licensed Application or Services (or any features or portions thereof) without prior notice. You agree that HVS will not be liable for any modification, suspension or discontinuance of the Licensed Application or Services (or any part thereof). HVS also may impose limits on the use of or access to certain Services, in any case and without notice or liability.
18. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH HVS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
18.1. Binding Arbitration. Except for disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents, you and HVS: (a) waive your right to have any and all disputes or Claims arising from this Agreement or the Services (collectively, "Disputes") resolved in a court; and (b) waive your right to a jury trial. Instead, you and HVS will arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
18.2. No Class Arbitrations, Class Actions or Representative Actions. YOU AND HVS AGREE THAT ANY DISPUTE IS PERSONAL TO YOU AND HVS AND THAT SUCH DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. NEITHER PARTY AGREES TO CLASS ARBITRATION OR TO AN ARBITRATION IN WHICH AN INDIVIDUAL ATTEMPTS TO RESOLVE A DISPUTE AS A REPRESENTATIVE OF ANOTHER INDIVIDUAL OR GROUP OF INDIVIDUALS. FURTHER, YOU AND HVS AGREE THAT A DISPUTE CANNOT BE BROUGHT AS A CLASS OR OTHER TYPE OF REPRESENTATIVE ACTION, WHETHER WITHIN OR OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY OTHER INDIVIDUAL OR GROUP OF INDIVIDUALS.
18.3. Federal Arbitration Act. You and HVS agree that this Agreement affects interstate commerce and that the enforceability of this Section 18 shall be governed by, construed and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA") to the maximum extent permitted by applicable law.
18.4. Process. You and HVS agree that you will notify each other in writing of any Dispute within thirty (30) days of when it arises so that we can attempt in good faith to resolve the Dispute informally. Notice to HVS shall be sent by certified mail or courier to: High-Voltage Software, Inc., Attn: CFO, 2345 Pembrooke Avenue, Hoffman Estates, IL, 60169. Your notice must include: (a) your name, postal address and the email address you use for your HVS account; (b) a description of the nature or basis of the Dispute; and (c) the specific relief that you are seeking. If you and HVS cannot agree how to resolve the Dispute within thirty (30) days after HVS receives your notice, either you or HVS may, as appropriate pursuant to this Section 18, commence an arbitration proceeding or file a claim in court. You and HVS agree that any arbitration or claim must be commenced or filed within one (1) year after the Dispute arose; otherwise, you and HVS agree that the claim is permanently barred (which means that you will no longer have the right to assert a claim regarding the Dispute). You and HVS agree that (i) any arbitration will occur in Cook County, Illinois, U.S.A.; (ii) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (iii) that the state or federal courts in the State of Illinois have exclusive jurisdiction over any appeals and the enforcement of an arbitration award and over any Dispute between the parties that is not subject to arbitration.
18.5. Authority of Arbitrator. As limited by the FAA, this Agreement and applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, and (b) the authority to grant any remedy that would otherwise be available in court. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual's claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
18.6. Rules of JAMS. The rules of, and additional information about, JAMS are available on the JAMS website at http://www.jamsadr.com, as may be updated from time to time. By agreeing to be bound by this Agreement, you either (a) acknowledge and agree that you have read and understand the rules of JAMS or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
18.7. Severability. If any provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law and all other provisions will remain valid and enforceable. Further, the waivers set forth in Section 18.2 are severable from the other provisions of this Agreement and will remain valid and enforceable except as prohibited by applicable law.
19. Governing Law and Venue
This Agreement and your download and installation of, and access to, the Licensed Application and the Services will be governed and interpreted in accordance with the laws of the State of Illinois, without reference to its choice of law rules. Each party irrevocably consents to the jurisdiction and venue of the federal and state courts located in Cook County, Illinois, U.S.A., with respect to any Dispute between the parties that is not subject to arbitration under this Agreement.
20. Miscellaneous. If any provision of this Agreement is found to be invalid or unenforceable, such provision will be deemed to be restated to reflect the original intention of the parties to the maximum extent possible and in accordance with applicable law, and the remaining provisions, terms, covenants, and restrictions of this Agreement will remain in full force and effect. You may not assign this Agreement or any of your rights under this Agreement without the prior written consent of HVS, and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by HVS and our respective successors and assigns. Any failure by HVS to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and shall remain in full force and effect.
21. Developer Name and Address. If you have any questions, complaints or claims with respect to the Licensed Application, please contact us at:
High-Voltage Software, Inc.
Attn: Community Manager
2345 Pembroke Avenue
Hoffman Estates, IL 60169