Terms and Conditions
Last Modified: March 20, 2024
Welcome to MyndVR Inc.
BY USING YOUR MYNDVR DEVICE OR BY ACCESSING MYNDVR CONTENT, YOU AGREE TO THESE TERMS AND CONDITIONS. BEFORE USING MYNDVR DEVICES OR MYNDVR CONTENT, PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, DO NOT USE YOUR MYNDVR DEVICE OR ACCESS MYNDVR CONTENT.
DEFINITIONS
A. “Affiliates” shall mean all entities which are controlling, controlled by or under common control with Client where control means the possession, directly or indirectly, of the power to cause the direction of the management and policies of an entity whether through ownership of voting securities or equity interests of such entity, by contract or otherwise.
B. “Content” means the content published or licensed by MyndVR and made available to Client on the Devices.
C. “Client” means the Client named on the Partnership Agreement, and includes any employee, consultant, or contractor of the Client, provided that the employee, consultant, or contractor is using the Services in the performance of his or her duties as an employee, consultant, or contractor of the Client.
D. “Device” means the virtual reality headset, tablet, or other hardware provided to Client by MyndVR that allows End Users to view and interact with Content (collectively, “Devices”).
E. “Documentation” means all user manuals and other material provided to Client by MyndVR to describe the functionality of and assist in the use of the Devices and Content.
F. “Effective Date” means the date on which the Partnership Agreement is entered into, as listed on the Partnership Agreement.
G. “End User” means the person using the Device through Client.
H. “Intended Use” means the use of a Device for recreational purposes.
I. “MyndVR Software” means the software pre-installed on the Devices, including any updates MyndVR may make available.
J. “Partnership Agreement” means the order for Services, whether made through the Site or with a MyndVR representative, which includes, but is not limited to, quantity of Devices, length of service, and pricing, as agreed to by and between Client and MyndVR.
K. “Services” means the delivery of Devices, Content, Documentation, Training, and Technical Support.
L. “Site” means the website located at https://www.myndvr.com/
M. “Subscription Fee” means the fee to be paid by Client, in accordance with the Partnership Agreement, to MyndVR as consideration for the license granted under this Agreement and the right to the Services.
N. “Subscription Start Date” means the date upon which the Subscription Term begins, as listed on the Partnership Agreement.
O. “Technical Support” means support provided by MyndVR, whether by phone, email, or otherwise, in connection with Client’s use of the Devices and Content.
P. “Training” means activation training, delivered either onsite or remotely, regarding the proper use of, maintenance of, and safety guidelines for the Devices and Content.
1. SERVICES
1.1 License Grant. MyndVR grants to Client and its Affiliates during the Term (as defined in Section 4) a non-exclusive, non-transferable license for Client and Affiliates to use the MyndVR Software, as updated by MyndVR from time to time, on the Devices for the Intended Use in strict accordance with this Agreement and as set forth in the Partnership Agreement.
1.2 Support. MyndVR shall provide Technical Support to Customer via email, which shall be available Monday through Friday, 9:00 a.m. to 5:00 p.m. Central Standard Time, excluding the bank recognized holidays in the United States (“Holiday”). In the event that Customer anticipates a need for support over the weekend or during a Holiday, Customer may request such support via a customized support contract to be defined on a case-by-case basis in a separate agreement. In the event that the Device or Content no longer functions properly, at no fault of the Client, MyndVR, at its sole cost including shipping, will repair or replace the Device within ten (10) business days.
1.4 Changes. MyndVR reserves the right, in its sole discretion, to make any changes to the MyndVR Software or Devices that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Services to its clients; (ii) the competitive strength of, or market for the Services; or (iii) the Services’ cost efficiency or performance; or (b) comply with applicable law, provided that the above changes shall not impact the material functions of the MyndVR Software or Devices.
1.5 Third Parties. The Services may operate, interface or be delivered with software or other technology that is licensed from and owned by third parties (“Third Party Licensors”). Client agrees that (a) it will use third party material in accordance with this Agreement, (b) no Third Party Licensor makes any representation or warranty to Client concerning the Services, and (c) no Third Party Licensor will have any obligation or liability to Client as a result of this Agreement or Client’s use of the Services, it being agreed that MyndVR shall be solely responsible for any violations or breaches of this Agreement caused by such Third Parties software or technology.
1.6 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to any intellectual property rights in or relating to, the MyndVR Software, Devices, Content, or third-party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the MyndVR Software, MyndVR Devices, and MyndVR created Content are and will remain with MyndVR. All right, title, and interest in the third-party materials or Content are and will remain with the respective rights holders.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Proper Use of Device and Content. Client agrees to only use the Device and Content in strict accordance with the Documentation, Training, and any other additional use guidelines provided to Client by MyndVR. Client agrees that Client will only use the VR headset Device in a seated position. The manufacturers of the VR headsets do not recommend the use of VR by an End-User who has an electronic medical device (i.e., pacemaker, etc.) or any history of seizures.
2.2 End User Warnings and Consent to Use Services. Client agrees that Client shall obtain, either directly or through a third party, any rights and consents necessary from all End Users prior to any End User’s use of any MyndVR Device or Content.
2.3 Prohibited Use. Except as expressly provided in this Agreement, Client will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how or algorithms relevant to the MyndVR Software, Devices, or Content; (ii) modify, translate, or create derivative works based on the MyndVR Software, Devices, or Content; (iii) use unauthorized accessories or unauthorized software in connection with or on the Devices; or (iv) remove any proprietary notices or labels from the Devices. MyndVR may use technical measures to prevent use of unauthorized software or content, and to protect the technical limitations, security, and anti-piracy systems in the MyndVR Software or Devices.
3. PAYMENT OF FEES
3.1 Billing and Fees. Client agrees to pay MyndVR the Subscription Fees in accordance with the Partnership Agreement and any renewal fees then applicable pursuant to Section 4 below.
3.2 Payment. Client agrees to provide a current, valid, accepted method of payment. Unless otherwise stated in the Partnership Agreement, MyndVR will bill the Subscription Fees on an annual basis.
3.3 Billing Disputes. If Client believes that MyndVR has billed Client incorrectly, Client must contact MyndVR no later than thirty (30) calendar days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit.
3.4 Taxes. Client shall be responsible for any and all sales taxes associated with the Services. Notwithstanding the foregoing, Client will not make deductions from any fees to be paid to MyndVR hereunder for federal, state or municipal income taxes or for social security taxes, unless otherwise required to do so by governmental regulations. MyndVR shall be responsible for and shall pay all federal, state or municipal taxes with respect to compensation, wages, or other remuneration for the Services to be performed pursuant to this Agreement and shall indemnify, defend, and hold harmless Client from and against all such taxes and shall comply with all governmental regulations with respect thereto, including the filing of all necessary reports and returns.
4. TERM AND TERMINATION
4.1 Term. This Agreement, and the license granted under this Agreement, shall commence on the Effective Date and shall continue for the duration of the Subscription Term from the Subscription Start Date in accordance with the Partnership Agreement unless otherwise terminated as described in this Section 4 (the “Initial Term”). At the end of the Initial Term, this Agreement shall automatically renew for additional one-year periods (each, a “Renewal Term”) until terminated in accordance with Section 4.2 or Section 4.3.
4.2 Termination for Convenience. Unless otherwise stated in the Partnership Agreement, during the Initial Term or then applicable Renewal Term, Client may terminate the Agreement by written notice to MyndVR if delivered more than sixty (60) calendar days prior to the end of the Term. MyndVR may terminate the Agreement upon thirty (30) calendar days’ written notice to Client. Client shall be entitled to a refund of any unearned fees.
4.3 Termination Upon Breach. In addition to any other remedies it may have, either Party may terminate this Agreement upon thirty (30) calendar days’ notice if the other Party materially breaches any of the terms or conditions of this Agreement. Client will pay in full for undisputed Services up to and including the last day on which the Services are provided. Client shall be entitled to a refund of any unearned fees.
4.4 Rights on Termination. On termination, all rights granted to Client under this Agreement cease and Client will promptly cease all use of the Services and shall return Devices to MyndVR within 15 days. Without limitation Sections 5, 6, and 7 will survive termination or expiration of this Agreement as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default.
5. REPRESENTATIONS AND WARRANTIES
5.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) if Client is a corporation or other entity, it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
5.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 5.1, ALL SERVICES ARE PROVIDED “AS IS” AND MYNDVR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND MYNDVR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, MYNDVR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER THAN AS PROVIDED WITH THE SERVICES, OR SHALL BE ERROR FREE.
5.3 SAFETY DISCLAIMER. THERE ARE IMPORTANT HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS THAT YOU MUST READ BEFORE USING THE MYNDVR SOFTWARE, THE MYNDVR DEVICES, AND CERTAIN CONTENT. BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND THESE WARNINGS AND INSTRUCTIONS. MYNDVR MAY UPDATE OR REVISE THESE WARNINGS AND INSTRUCTIONS, SO PLEASE REVIEW THEM PERIODICALLY. ADDITIONAL HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS MAY BE PROVIDED BY DEVELOPERS IN RELATION TO SPECIFIC LICENSED CONTENT. YOU REPRESENT AND WARRANT THAT YOU WILL READ ALL HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS BEFORE USING THE SERVICES.
6. INDEMNIFICATION
Client shall indemnify, defend and hold harmless MyndVR and its Subcontractors and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “MyndVR Indemnitee”) from and against any and all losses incurred by such MyndVR Indemnitee in connection with any Action by a third party (other than an affiliate of a MyndVR Indemnitee) to the extent that such losses arise out of or relate to any: (a) allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants or obligations under this Agreement, including any breach of Section 2; or (b) negligence or more culpable act or omission (including recklessness or willful misconduct) by Client or any third party on behalf of Client, in connection with this Agreement.
7. LIMITATION OF LIABILITY
MYNDVR DOES NOT ASSUME ANY LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUES, LOSS OF DATA, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF ANY REPLACEMENT GOODS OR SUBSTITUTE EQUIPMENT, OR LOSS OF USE DURING THE PERIOD THAT THE PRODUCT IS BEING REPLACED OR REPAIRED. FURTHER, IN NO EVENT SHALL MYNDVR BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, EVEN IF MYNDVR HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES, FOR ANY CLAIM ARISING FROM THE USE OF THE DEVICE OR CONTENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR LEGAL OR EQUITABLE THEORY. IN NO EVENT SHALL MYNDVR’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS WARRANTY STATEMENT EXCEED THE PRICE PAID BY CLIENT FOR PURCHASE OF THE USE OF THE SERVICES.
8. GENERAL
8.1 Entire Agreement. This Agreement, together with the Partnership Agreement and any documents referenced herein, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties except as otherwise provided herein. In the event of any conflict between this Agreement and the Partnership Agreement, the Partnership Agreement shall govern.
8.2 Marketing. Client may use MyndVR logo and approved messaging for outbound marketing and PR efforts. MyndVR may use Client logo for inclusion in any and all external marketing campaigns (i.e., TV, Print, Web, etc.)
8.2 Severability; Waiver. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.
8.3 Limitations Period. No action arising out of or in connection with this Agreement or the transactions contemplated by the Agreement may be brought by either party against the other more than 365 days after knowledge of the action accrues.
8.4 Governing Law and Venue. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions. Each Party agrees that any action at law or in equity arising out of or relating to this Agreement, shall be filed only in the state or federal courts located in Dallas County, Texas.
8.5 Dispute Resolution. In the event of any dispute between the parties arising out of this Agreement, the parties shall first attempt to resolve the dispute via non-binding mediation with a mutually agreed upon mediator via phone or video conference, or, if in person, in Dallas County, Texas. In the event that such dispute cannot be resolved at mediation, then it shall be resolved by arbitration under the rules of the American Arbitration Association by an arbitrator agreed upon in writing by the parties. In the event the parties cannot agree upon the choice of an arbitrator, each party shall appoint one individual representative and the party representatives shall, between themselves, chose an arbitrator.
8.6 Assignment. Neither Party shall assign, sub-license, sub-contract, charge or otherwise encumber any of its rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed except that either party may assign this Agreement or any of its rights or obligations hereunder to any Affiliate or to any entity which succeeds to all or substantially all of the concerned party’s assets and business subject to the other party’s information in writing. Any attempted assignment in violation of this Section 8.6 shall be null and void.
8.7 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
8.8 Attorney’s Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.
8.9 Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.