OVR SOFTWARE LICENSE AGREEMENT

Software License Agreement governs the terms of your use of the OVR Software Package (defined below). By downloading, using, or accessing the OVR Software Package, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, you may not use or access the OVR Software Package and must destroy any locally-saved copies of the OVR Software Package immediately. This Software License Agreement was last updated on June 15, 2020. Background

OVR is the owner of certain software source code, object code, libraries and/or application programming interfaces (APIs) (the “OVR Software Package”) used in connection with its virtual and augmented reality hardware and software products (the “OVR Products”). OVR has agreed to grant the developer accessing the OVR Software Package (the “Developer”) the license to use the OVR Software Package under the terms and conditions set forth in this Agreement.

N O W , T H E R E F O R E ,

In consideration of the mutual covenants and agreements herein set forth, the parties hereby agree as follows:

SECTION 1. Grant

. Subject to the terms of this Agreement, OVR hereby grants to Licensee a revocable, royalty-free, non-exclusive, worldwide, limited license (the “License”) for Licensee and its authorized employees and agents (“Licensee Agents”) to use, install, copy, modify and adapt, as necessary, all intellectual property covered by the OVR Software Package in the United States for the purpose of testing and integration of the OVR Software Package with and into Licensee’s products (the “Licensee Products”) and to copy, use and install as a component of the Licensee Products. The OVR Software Package may be sublicensed to other third parties only if the OVR Software Package is integrated into the Licensee Products in a fully compiled format or as embedded source code, provided that the terms of such sublicense are at least as restrictive as the restrictions set forth herein (including, without limitation, the confidentiality restrictions set forth in Section 6. OVR reserves the right to amend this Agreement to impose charges or fees for Licensee’s continuing use of the License and such fees may be described in a separate agreement between OVR and Licensee.

Prohibited Uses

. Except as provided in Section 1 of this Agreement, and except to the extent incorporated into the software required to use the Licensee Products, Licensee shall not: (i) use or copy the OVR Software Package; (ii) rent or lease the OVR Software Package to any third party; (iii) assign this Agreement or transfer the OVR Software Package without the express written consent of OVR,; (iv) modify, adapt, or translate the OVR Software Package in whole or in part except as provided in Section 1 of this Agreement; (v) reverse engineer, decompile, or disassemble the OVR Software Package not provided to Licensee in source code form; or (vi) distribute, sublicense or transfer the source code form of any components of the OVR Software Package and derivatives thereof to any third party other than the Licensee Agents except as expressly provided in this Agreement. If Licensee is located in a member nation of the European Union or other nation that permits limited reverse engineering notwithstanding a contractual prohibition to the contrary, Licensee may perform limited reverse engineering, but only after giving notice to OVR and only to the extent expressly provided under applicable law.

Term; Termination

. The License granted under this Agreement shall continue perpetually unless terminated by OVR by written notice. Upon termination of this Agreement, Licensee shall immediately cease using the OVR Software Package, return to OVR, or destroy, all copies of the OVR Software Package, and provide OVR with written certification of Licensee’s compliance with the foregoing. Termination shall not relieve Licensee from its obligations arising prior to such termination.

Intellectual Property

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Ownership

. As between Licensee and OVR, OVR shall own and retain all proprietary rights, including all Intellectual Property rights in and to the OVR Software Package, and as applicable, any corrections, bug fixes, enhancements, updates, improvements or modifications thereto. Licensee shall promptly disclose any such corrections, bug fixes, enhancements, updates, improvements or modifications made by Licensee to the OVR Software Package to OVR (the “Licensee Improvements”) and shall assign all Intellectual Property rights in and to the Licensee Improvements to OVR. Licensee’s corrections, bug fixes, enhancements, updates, improvements or modifications to the Licensee Products shall remain its sole and exclusive property. To perfect OVR’s ownership interest in its Intellectual Property described herein, Licensee agrees to assign to OVR all rights that Licensee may otherwise have in the Licensee Improvements and to assist and cooperate with OVR in all reasonable respects (a) in actions to establish, transfer, or maintain such ownership rights, including executing documents associated therewith, and (b) in actions of enforcement of such ownership rights.

Data Reporting

. Licensee acknowledges and agrees that the OVR Software Package may, from time to time, be configured to report certain usage statistics and reports generated by the use of its software or equipment to the Company (the “Usage Reports”), including, without limitation, data regarding burst counting, the number of sessions any OVR equipment is used by an end-user, time logs, time domains and cartridge usage, for the express purpose of further improving the OVR Software Package and for product development purposes. Any and all Usage Reports shall be property of the Company and shall be treated as Confidential Information hereunder.

Confidentiality

As a result of this Agreement, each party will have access to certain highly valuable, confidential and proprietary information relating to or deriving from the intellectual property and business operations, including but not limited to, information relating to research, development, production, processing, systems, purchasing, financing, pricing (including product pricing under this Agreement), accounting, engineering, marketing, selling, merchandising, customers clients, and customer lists (collectively referred to as “Confidential Information”). Each party agrees that neither it nor its officers, directors, agents, affiliates or related parties will directly or indirectly use, disclose, disseminate or otherwise publish at any time or for any reason, any information directly or indirectly related to the Confidential Information, without in each specific instance first obtaining the express prior written consent of disclosing party. The parties agree that the duration and scope of the foregoing restrictions are reasonable. Upon a determination that any term or provision of this Section 6 is invalid, illegal or unenforceable, the court may modify this Section 6 to substitute the maximum duration or scope to the greatest extent possible to effect the restrictions originally contemplated by the parties hereto. To maintain the confidentiality of its Confidential Information, OVR shall have the right to approve the contents of any press release, white paper, research memorandum or other similar documents prepared by Licensee or its employees, agents and consultants describing the use of the OVR Products in advance of their publication.

No Maintenance or Support

. OVR shall be under no obligation whatsoever to: (i) provide maintenance or support for the OVR Software Package; or (ii) to notify Licensee of bug fixes, patches, or updates (collectively, “Update”) to the OVR Software Package (if any). If, in its sole discretion, OVR makes an Update available to Licensee and OVR does not separately enter into a written license agreement with Licensee relating to such Update, then the Update shall be deemed incorporated into the OVR Software Package and subject to this Agreement.

Warranty

. OVR hereby represents and warrants to Licensee that it owns the OVR Software Package and its execution, delivery and performance of this Agreement will not violate any of its obligations to any third party, whether arising in contract or otherwise. NO OTHER WARRANTIES ARE MADE BY OVR UNDER THIS AGREEMENT. THE LICENSED CODE IS PROVIDED “AS IS”. OVR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES CONCERNING THE OVR SOFTWARE PACKAGE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE, AND WARRANTIES OF PERFORMANCE, AND ANY WARRANTY THAT MIGHT OTHERWISE ARISE FROM COURSE OF DEALING OR USAGE OF TRADE. NO WARRANTY IS EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE USE OF THE OVR SOFTWARE PACKAGE. Under no circumstances shall OVR be liable for incidental, special, indirect, direct or consequential damages or loss of profits, interruption of business, or related expenses which may arise from use of software or documentation, including but not limited to those resulting from defects in software and/or documentation, or loss or inaccuracy of data of any kind.

Indemnity

. At all times during the term of this Agreement and thereafter, Licensee shall indemnify, defend and hold OVR, its managers, members, employees and affiliates harmless from and against any and all third party claims or liabilities, and actual, out-of-pocket losses or damages, including reasonable legal expenses and reasonable attorneys’ fees, arising out of or incurred in connection with any third party claim, proceeding, demand, expense and liability of any kind whatsoever relating to a claim that any use of the Licensee Products infringes any patent, copyright, trademark or trade secret of any third party. Except for matters arising from OVR’s own negligent or intentional acts or omissions, Licensee shall at all times during the term of this Agreement and thereafter, indemnify, defend and hold OVR, its directors, officers, employees and affiliates, harmless against all third party claims and actual, out-of-pocket expenses, including legal expenses and reasonable attorneys’ fees, related to the Licensee Products and arising out of the death of or injury to any person or persons or out of any damage to property and against any other third party claim, proceeding, demand, expense and liability of any kind whatsoever resulting from the production, manufacture, sales, use, or advertisement of the Licensee Products by Licensee. This Section 9 shall survive the termination of this Agreement.

Notices

. Notices or other communications arising out of matters related to this Agreement shall be deemed sufficiently made or given on the date of mailing if sent to Licensee at the e-mail address provided by Licensee to OVR, read receipt requested, or to OVR by e-mail to: [email protected]

Amendments

. OVR may amend this Agreement or the License terms at any time without the Licensee’s prior written consent, and will provide any updates to the Agreement on our website and by e-mail.

Miscellaneous

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Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Vermont, without giving effect to principles of conflict of laws that would require the application of any other law. Licensee and OVR agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in the State of Vermont.

Entire Agreement. This Agreement, including any exhibits, schedules and attachments, supersedes all prior agreements relating to the subject matter of this Agreement, whether written or oral, between the parties with respect to its subject matter, and there are no covenants, promises, agreements, conditions or understandings, written or oral, except as herein set forth.

Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.

Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

Independent Contractors. The relationship of Licensee to OVR shall be that of an independent contractor and nothing herein contained shall be construed as creating any joint venture, partnership, employer/employee, agency, or other relationship of any kind.

Contents
SECTION 1. Grant
Prohibited Uses
Term; Termination
Intellectual Property
Definition. As used in this Agreement, “Intellectual Property” means any or all of the following and all rights in, arising out of, or associated therewith: (a) all United States and foreign patents and applications therefore and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries; (b) all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, technology, algorithms, techniques, methods, devices, technical data, customer lists, and all documentation embodying or evidencing any of the foregoing; (c) all copyrights, copyright registrations and applications therefore, and all other rights corresponding thereto throughout the world and all materials that are or may be subject to protection under copyright laws; (d) all trade names, logos, trade dress, common law and registered trademarks and service marks, trademark and service mark registrations and applications therefore, and all goodwill associated therewith throughout the world; (e) all computer software, including all source code, object code, firmware, development tools, files, records, and data, and all media on which any of the foregoing is recorded; (f) all World Wide Web addresses, sites, and domain names; (g) all mask works; (h) all so-called “moral rights” or “droit moral” and (i) any similar, corresponding, or equivalent rights to any of the foregoing anywhere in the world.
Ownership
Data Reporting
Confidentiality
No Maintenance or Support
Warranty
Indemnity
Notices
Amendments
Miscellaneous
Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Vermont, without giving effect to principles of conflict of laws that would require the application of any other law. Licensee and OVR agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in the State of Vermont.
Entire Agreement. This Agreement, including any exhibits, schedules and attachments, supersedes all prior agreements relating to the subject matter of this Agreement, whether written or oral, between the parties with respect to its subject matter, and there are no covenants, promises, agreements, conditions or understandings, written or oral, except as herein set forth.
Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, at any time or to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Independent Contractors. The relationship of Licensee to OVR shall be that of an independent contractor and nothing herein contained shall be construed as creating any joint venture, partnership, employer/employee, agency, or other relationship of any kind.