2.2 Software Services. The Customer agrees to retain TRANSFR, and TRANSFR agrees to be retained, to license virtual reality training simulation services to the Customer (the “Software Services”) as set forth in an individual Service Order executed between the Customer and TRANSFR (each, a “Service Order”), a form of which is attached hereto as Exhibit A.
2.3 Hardware Services. In connection with the Software Services provided, Transfer shall provide to the Customer certain virtual reality equipment (the “Equipment”) and provide maintenance and repair services for such Equipment (the “Hardware Services” and together with the Software Services the “Services”). Each piece of Equipment shall be listed separately on the applicable software Service Order.
2.4 Technical Requirements For The Use of Software Services and Equipment:
2.4.1 WIFI Access Required: Use of the Equipment, including without limitation the Oculus Headset, and the Software Services requires that Customer provide access for its users to a WIFI network properly configured for this use.
2.4.2 Other Maintenance Actions That Require WIFI Access: Occasionally, TRANSFR may need to update the Software Services, including without limitation the Oculus headset software and TRANSFR ’s simulations, over the WIFI network, which may include, but is not limited to, bug fixes or patches, the addition of new features, and plug-ins.
2.4.3 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 Customer 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 Customer acknowledges and agrees that TRANSFR shall not be liable for any such unavailability and/or non-functionality.
2.4.4 Additional Technical Specifications: Additional Technical Specifications can be accessed here: Technical Specs Sheet (the “Technical Specifications”). If Customer’s systems, hardware, and networking are insufficient pursuant to the Technical Specifications, Customer 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.
2.5 Use of Equipment. The Customer 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 Customer shall be responsible for the proper use and deployment of the Equipment. Transfer shall provide training to the Customer on the proper use of the Equipment and any Equipment use procedures; provided, however, the Customer shall be responsible for training anyone using the Equipment on the proper use of the Equipment in accordance with any Equipment use procedures. The Customer’s TRANSFR – trained trainers shall be responsible for the proper storage, use and deployment of the Equipment. When not in use, the Equipment shall be stored in a secure location. Customer 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 Customer agrees that Transfer 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 customer 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 Customer is responsible for the full cost of repair or replacement of the headset and peripheral materials. Customer assumes custody of the Equipment until it is returned to TRANSFR , unless otherwise explicitly set forth in the applicable Service Order. Customer 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, Customer agrees to return the defective unit to TRANSFR and will receive a replacement unit within a reasonable amount of time. TRANSFR will make every effort to deliver such a replacement within 7-10 business days, barring extenuating circumstances, external factors, and the availability of replacement units.
2.5.3 Receipt and Return of Equipment. The Customer shall be responsible for the safe packaging, proper import, export, shipping and receiving of the Equipment. The Equipment shall be returned within a reasonable amount of time after the earlier end date identified on the applicable Service Order the termination of this Agreement. Equipment shall be returned to TRANSFR in as good a condition as when received by the Company, 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.
3.2 2.2 .2 Payment for Services. In consideration for TRANSFR performing the Services, the Customer shall make payments in the amounts and in the timeframes set out in the applicable Service Order. Unless otherwise stated in a Service Order, payments are due within 30 (thirty) days of the date on which an invoice is sent by TRANSFR to the Customer.
3.3.1 2.3.1 Purchase Orders. Each Purchase Order will incorporate this Agreement by reference and shall constitute a unique agreement and shall stand alone with respect to any other Purchase Order entered under this Agreement. To the extent that terms and/or provisions of a Purchase Order conflict with the terms and/or provisions of this Agreement, the terms and/or provisions of this Agreement shall control unless the Purchase Order expressly states otherwise. Transfr and the Customer agree that the Purchase Order shall set forth a reasonable schedule for the Services to be performed, and each Party will use commercially reasonable efforts to comply with the timelines stated therein.
3..3.2 2.3.2 Payment for Services. In consideration for Transfr performing the Services, the Customer shall pay the amounts as set out in the applicable Purchase Order.
4.3 Duties Upon Termination.
4.3.2 Customer Return Obligation
The Customer will pay or reimburse TRANSFR for any amounts owed, but not yet paid, for Services performed or expenses incurred, if any, up to the effective date of termination. Any pre-paid fees or costs will not be reimbursed, whether or not allocated to any Equipment or Services.
5.1 No Warranty
TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, TRANSFR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR EQUIPMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES OF NON-INFRINGEMENT, OR COMPLIANCE WITH LAWS OR REGULATIONS.
5.2 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.
6.1 Customer Obligations
Customer 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 Customer’s use of the Services or Equipment, including but not limited to claims by the “Customer’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 Customer through the Services or Equipment.
6.2 Indemnification of the Customer
8.1 Ownership of Intellectual Property
8.2 Grant of Intellectual Property Licenses
8.2.1 The Customer hereby grants TRANSFR a fully paid, perpetual, non-exclusive, sub-licensable, irrevocable worldwide license under and to all intellectual property rights owned or controlled by the Customer that are utilized by TRANSFR as far as strictly necessary for the development of the Equipment or Services or any improvement or derivative work thereof.
8.2.2 TRANSFR grants to the Customer a non-exclusive, irrevocable (except as set forth in the termination provisions herein) license to distribute the Equipment or Services in the form provided by TRANSFR exclusively in connection with the Services and for the use as set forth in Section 3.1.
9.2 Governing Law and Arbitration
9.4 Independent Contractors
9.5 Entire Agreement
9.6 Force Majeure
All notices to either party shall be in writing and delivered by hand or by certified mail or overnight delivery service to the address set forth by the Customer or TRANSFR or to such other address as either party shall give by written notice to the other party. Notices shall be effective when delivered to the applicable address.