1.1 These terms of use (“Terms of Use”) are entered into by and between you (“You” or “User”) and Transfr, Inc., a Delaware corporation (“Transfr”, “We” or “Us”), together with any Service Orders (as hereinafter defined) or other documents which expressly incorporate these Terms of Use by reference, govern your access to and use of the Services (as hereinafter defined).
2.1 Overview. Transfr and the User desire to agree on these Terms of Use which will be applied to govern Transfr’s provision of certain services and equipment to the User for demo purposes.
2.2 Hardware Services. In connection with the Software Services provided, Transfr shall provide to the User certain virtual reality equipment (the “Equipment”) for demo purposes. Transfr agrees to provide maintenance and repair services for such Equipment (the “Hardware Services” and together with the Software Services the “Services”).
2.3 Technical Requirements For The Use of Software Services and Equipment:
2.3.1. WIFI Access Required: Use of the Equipment, virtual reality headsets from various manufacturers and Tranfr’s virtual reality training software require that Users have access to a WIFI network properly configured for this use.
2.3.2 Network Access and Hardware Costs Not Included in Service: Transfr does not provide network services or network hardware as a part of the Services or otherwise in connection with the Agreement. It is the sole responsibility of the User to ensure that WIFI access is both established and of sufficient bandwidth for participants to properly access and engage the Software Services, including without limitation Transfr ’s simulations. Failure to provide sufficient WIFI access and networking shall result in the Software Services and Equipment being unavailable and/or non-functional and User acknowledges and agrees that Transfr shall not be liable for any such unavailability and/or non-functionality.
2.3.3 Additional Technical Specifications: Additional Technical Specifications can be accessed here: Technical Specs Sheet (the “Technical Specifications”). If User’s systems, hardware, and networking are insufficient pursuant to the Technical Specifications, User acknowledges and agrees that the Equipment and/or Software Services may be unavailable and/or nonfunctional and that Transfr shall not be liable for any such unavailability and/or non-functionality.
2.4 Use of Equipment. The User agrees to use the Equipment in connection with the software provided in connection with the Software Services for training and development, and not for any other commercial use or application. The User shall be responsible for the proper use and deployment of the Equipment. When not in use, the Equipment shall be stored in a secure location. User shall ensure that anyone using the Equipment has read and agreed to Transfr’s disclaimers contained in the software.
2.5.1 Maintenance and Repair. The User agrees that Transfr shall be the exclusive provider of maintenance and repair services for the Equipment.
2.5.2 Replacement of Lost, Stolen or Damaged Equipment. If the User elects to utilize Transfr-owned headsets and in the rare event that a headset and peripheral item(s) are lost, stolen, damaged due to misuse, or use beyond normal wear and tear, or vandalism, or theft, the User is responsible for the full cost of repair or replacement of the headset and peripheral materials. User assumes custody of the Equipment until it is returned to Transfr. User agrees to promptly notify Transfr upon discovery of damage or loss of the Equipment and return any damaged equipment to Transfr. If the headset is defective, User agrees to return the defective unit to Transfr.
2.5.3 Receipt and Return of Equipment. The User shall be responsible for the safe packaging, proper export, shipping and receiving of the Equipment. The Equipment shall be returned within 30 days of receipt of the headset, unless agreed upon via written communication. Equipment shall be returned to Transfr in as good a condition as when received by the User, except for reasonable wear and tear.
2.5.4 Title to the Equipment. Subject to the terms of this Agreement and the applicable Service Order, title to the Equipment shall remain with Transfr.
3.1 Terms
These Terms of Use shall be effective as of the date that the User submits the demo headset request form, and shall continue until Transfr receives the headset back into its custody.
4.1 Limitation of Liability
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, TRANSFR SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, ARISING UNDER ANY THEORY OF LAW, INCLUDING BUT NOT LIMITED TO TORT AND CONTRACT, AND INCLUDING WITHOUT LIMITATION, PERSONAL INJURY, LOST DATA OR LOST PROFITS, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 Damages
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, TRANSFR’S LIABILITY FOR DAMAGES ARISING OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH, THESE TERMS OF USE SHALL IN NO EVENT EXCEED: ANY FEES PAID BY THE User TO TRANSFR DURING THE TERM OF THESE TERMS OF USE. THE PARTIES AGREE TO THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION AND ACKNOWLEDGES THAT WITHOUT ITS AGREEMENT TO THE LIMITATIONS OF LIABILITY CONTAINED HEREIN, THE FEES CHARGED BY TRANSFR WOULD BE HIGHER.
5.1 User Obligations
User shall, to the greatest extent permitted by applicable law, hold harmless Transfr, its officers, agents and employees from any and all claims filed by third parties for damages, costs, actions, liabilities or expenses to the extent they result from or arise out of User’s use of the Services or Equipment, including but not limited to claims by the “User’s” employees, contractors, users or clients, allegedly caused by use of the Product or the Equipment, and claims of infringement relating to or arising out of any content used by the User through the Services or Equipment.
5.2 Indemnification of the User
The User shall give Transfr prompt notice of any claims brought against the User by a third party that alleges that the User’s use of the Equipment or Services, or any part thereof, constitutes infringement of any United States third party intellectual property right. User shall cooperate with Transfr in responding to such claims, and permit Transfr to control the defense or settlement of such claims. If the Services or Equipment become or, in Transfr’s opinion are likely to become, the subject of an infringement claim or action, Transfr may, at its option: (a) procure, at no cost to the User, the right for the User to continue using the Services or Equipment; (b) replace or modify all or a portion of the Services or Equipment to render them non-infringing, provided that there is no material loss of functionality; or (c) if, in Transfr’s sole discretion, neither (a) nor (b) above is commercially feasible, terminate this Terms of Use and any and all Service Orders. The foregoing states Transfr’s sole obligation and the User’s exclusive remedy in the event any claim or action is commenced or, in Transfr’s sole discretion, is likely to be commenced.
6.1 Governing Law and Arbitration
These Terms of Use and each Service Order shall be governed by and construed in accordance with the substantive and procedural laws of the State of Delaware without regard to its conflicts of laws provisions. Any disputes between the parties, whether or not arising out of these Terms of Use or Service Order or their performance, shall be determined by one arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules. All hearings will be conducted by audio conference and video conference. The language of the arbitration shall be English. The arbitrator’s award shall be final and binding on the parties and may be entered and enforced in any court or tribunal of competent jurisdiction.
6.2 Severability
All provisions of these Terms of Use shall be considered as separate terms and conditions, and in the event, anyone shall be held illegal, invalid, or unenforceable, all the other provisions hereof shall remain in full force and effect as if the illegal, invalid, or unenforceable provision were not a part hereof unless the provision held illegal, invalid or unenforceable is a material provision of these Terms of Use, in which case Transfr and the User agree to amend these Terms of Use with replacement provisions containing mutually acceptable terms and conditions.
