Terms and Conditions: appliedVR Equipment Purchase and License
1. Purchase of Equipment:
1.1. The Equipment. AVR agrees to sell to Customer and Customer agrees to purchase from AVR the following equipment (referred to herein as the “Equipment”). The Equipment will be sold to Customer in “Units” and each Unit consists of one of each of the following items:
1.1.1. Samsung® Galaxy S7 smartphone (or equivalent);
1.1.2. Samsung Gear® VR headset (or equivalent);
1.1.3. Set of headphones; and
1.1.4. Electrical chargers for the items described in Sections 1.1.1 and 1.1.2.
1.2. Warranty. Samsung Equipment is subject to the Samsung Standard Limited Warranty (the “Limited Warranty”), attached to this Agreement as Exhibit A, for the time period stated therein. If Customer is the “Purchaser” under the Limited Warranty, Customer shall be responsible for obtaining service for any defective Equipment. If AVR is the “Purchaser” under the Limited Warranty, Customer shall be responsible for delivering any defective Equipment to AVR immediately upon discovery of a defect and AVR will deliver such defective Equipment to Samsung for processing under the Limited Warranty. Please be aware of the exclusions to the Limited Warranty. Except as expressly included herein, AVR makes no representation or warranty with respect to ANY Equipment, including making no warranty that the Equipment will be merchantable, free from defects or fit for any particular purpose. If Equipment is damaged, lost or misplaced, Customer is responsible for purchasing replacement equipment. Customer assumes all risk and liability resulting from the possession, use or disposition of the Equipment. AVR will not have any liability with respect to the Equipment sold to Customer.
2. License of the Licensed Products:
2.1. The Licensed Products. As used in this Agreement, “Licensed Products” means AVR’s platform and software and all content provided to Customer by or on behalf of AVR for use by Customer on the Equipment.
2.2. The License. During the Term (as defined in Section 3.3 below) of this Agreement, AVR hereby grants to Customer a non-exclusive license (the “License”) to use the Licensed Products in the Facility (defined below). This License is non-transferrable, and cannot be sublicensed by Customer without advance written consent signed by the CEO or President of AVR. As used in this Agreement, “Facility” means the patient care facility located at: __________________________________________________________.
2.3. Ownership. AVR owns the Licensed Products and, subject to applicable law, all data generated by use of Licensed Products. AVR will comply with all applicable laws with regard to such data, and, unless restricted by applicable law, shall have the unrestricted right to use such data for any purpose in the course of its business. Customer agrees that nothing in this Agreement shall give Customer any right, title, or interest in the Licensed Products other than the right to use the same in accordance with the terms of this Agreement.
3. Term and Termination:
3.1. Term. The “Initial Term” of this Agreement is 12 months from the Effective Date. Following the expiration of the Initial Term, the parties may agree to extend or renew this Agreement for additional periods of 12 months or longer (each, a “Renewal Term” and collectively with the Initial Term, the “Term”).
3.2. Termination. AVR may terminate this Agreement upon notice to Customer if: (a) Customer does not timely pay amounts due AVR under this Agreement; or (b) Customer breaches the terms of this Agreement. If AVR terminates this Agreement, AVR will refund Customer a prorated portion of the previously paid Annual Fee.
4. Services. During the Term of this Agreement, in exchange for the payment of the fees described in Section 5 below, AVR will provide the following services: (a) with respect to the Initial Term only, initial implementation of the Licensed Products, including one hour of on-site training by AVR personnel to be scheduled at a mutually agreeable time between AVR and Customer; (b) regular support and maintenance of the Licensed Products and Services, including upgrade support; (c) updates to the content as such updates become available to AVR’s customers generally; and (d) ongoing troubleshooting and issue resolution with respect to the Licensed Products, all as described below.
4.1. Initial Implementation. Upon execution of this Agreement, Customer will assign one of its personnel to serve as the primary point of contact with AVR for support, training and updates (“Customer Champion”) and will notify AVR in writing of the Customer Champion’s name, title, email address and phone number. Within the first 15 days of the Initial Term, AVR will deliver to Customer the Licensed Products pre-configured and ready to use out of the box and training materials for onboarding, and will deliver a one-hour training on the use of the Licensed Products and will provide such further support (on-site or remote) as is reasonably needed.
4.2. Support. During the Term, AVR will provide Customer with the following support:
4.2.1. The primary contact method for customer support is via email at email@example.com, which will be monitored 7:00 A.M. to 5:00 P.M. Pacific Time, Monday – Friday. Email received outside of these hours will be collected and maintained, however no action can be guaranteed until the next business day. For High priority requests (as described below) only, phone support is available at (844) 204-9093.
4.2.2. Classification of Requests: (a) High priority – severe degradation of functionality without a workaround (i.e., device is not functional without back-up equipment available); (b) Medium priority – degradation of functionality with a workaround (i.e., device or application is not functional, but there is a back-up unit that can be utilized); and (c) Low priority – minor bugs, errors or suggestions (i.e., misspelled label on a screen, product improvement recommendation, new feature idea).
4.2.3. Customer will classify all requests in good faith according to the classification standards in Section 4.2.2. above. AVR will acknowledge service related incidents and/or requests submitted by Customer within the following time frames: (a) Within 24 hours for High priority issues; (b) Within two business days for issues classified as Medium priority; and (c) Within five business days for issues classified as Low priority. AVR will promptly notify Customer if AVR does not agree with Customer’s classification of an incident or request. If at any time Customer is dissatisfied with AVR’s support, Customer should contact: (a) for implementation issues: firstname.lastname@example.org; and (b) for service issues: email@example.com.
4.3. Termination. Upon any termination of this Agreement, or expiration of a Term without a Renewal Term taking effect, the License will immediately terminate, Customer will immediately lose access to the use of the Licensed Products and shall be required to return to AVR all tangible embodiments of Licensed Products in good working order (reasonable wear and tear excepted).
5. Annual Fee.
5.1. Purchase Price of Equipment. Customer agrees to pay AVR a purchase price of $800 (the “Unit Purchase Price”) for each Unit delivered by AVR to Customer; the Unit Purchase Price includes initial set-up and configuration of the Equipment. Payment of the Unit Purchase Price for each Unit is due immediately upon delivery of the Equipment to Customer.
5.2. Annual Fee. For the Initial Term and each Renewal Term, Customer will pay AVR an annual fee (the “Annual Fee”); the Annual Fee includes the License of the Licensed Products and the provision of the Services during the Initial Term or Renewal Term, as applicable. For the Initial Term, the Annual Fee will be chosen by the Customer during selection of the service plan. The Annual Fee for the Initial Term and each Renewal Term will be invoiced by AVR to Customer at the beginning of the Initial Term and each Renewal Term and payment is due immediately upon receipt of invoice. AVR will notify Customer of the amount of the Annual Fee for any Renewal Term at least 60 days prior to the end of the Initial Term or Renewal Term, whichever will next expire.
5.3. Failure to Pay. If Customer fails to make any payment when due AVR shall be entitled to immediately terminate this Agreement or suspend its performance under this Agreement until such time as payment in full has been received.
5.4. Taxes. The Annual Fee does not include any taxes, levies, duties or other similar charges, all of which shall be paid and borne by Customer.
6. Requirements of Customer. Customer will provide access to Wi-Fi where the Equipment and Licensed Products are used for weekly transmission of application usage data (which does not include any personally identifiable information or personal health information) and uploading of updates and new content to the Equipment and Licensed Products. Customer represents, warrants and agrees that the Equipment and Licensed Products will be used under the supervision of a physician licensed in the state in which the Equipment and Licensed Products are used.
7. Confidential Information.
7.1. Each Party shall maintain the confidentiality of the other's Confidential Information (as defined below) using at least the same efforts as it uses to maintain the confidentiality of its own Confidential Information. The term Confidential Information shall include but not be limited to any non-public information, whether in written, oral, graphic, electronic or any other form, provided by one Party to the other, which is marked or indicated at the time of disclosure or observation as being "Confidential" or "Proprietary," or which would be deemed by a reasonable person to be confidential or proprietary in nature. This Agreement shall be treated as Confidential Information.
7.2. Confidential Information shall not include information that (a) is in or enters the public domain without breach of this Agreement, (b) the receiving party receives from a third party who is entitled to disclose such information to the receiving Party without restriction on disclosure and without breach of a nondisclosure obligation or (c) the receiving Party knew prior to receiving such information from the disclosing Party or (d) the receiving Party develops independently without reference to the disclosing Party Confidential Information. Either Party may disclose Confidential Information in accordance with judicial or other governmental order, provided that, if possible, the disclosing Party shall give the other Party reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent. In addition, neither Party shall be prevented from "need to know" basis disclosure to its own attorneys, auditors, tax preparers, and other professional advisors.
8. Indemnification. Each of AVR and Customer agrees to indemnify, defend, and hold harmless the other Party and its affiliates, subsidiaries, officers, directors, employees and agents from and against any and all damages, losses, expenses, and fines (including reasonable attorneys’ fees, costs, and expenses) (“Damages”) awarded against the indemnified Party by a court of competent jurisdiction or otherwise agreed in a settlement, in connection with a claim by a third party arising as a result of the indemnifying Party’s breach of this Agreement or the indemnifying Party’s gross negligence, willful misconduct or fraud.
9. Limitation of Liability. THE TOTAL LIABILITY OF EITHER PARTY FOR ANY DAMAGES BASED ON ANY CLAIMS, WHETHER ARISING FROM BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY ARISING FROM OR RELATED THIS AGREEMENT, THE EQUIPMENT AND/OR ANY LICENSED PRODUCT IS LIMITED TO THE ANNUAL FEE ACTUALLY PAID BY CUSTOMER TO AVR UNDER THIS AGREEMENT FOR THE TERM DURING WHICH THE EVENTS GIVING RISE TO THE CLAIM OCCURED; PROVIDED THAT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Notices. All notices shall be given by personal delivery or by email (with a copy by first class U.S. Mail, postage prepaid) to the other Party addressed as follows:
1900 Avenue of the Stars
Los Angeles, CA 90067
Notice of changes to foregoing addresses will be given in the same manner.
11. Miscellaneous. This Agreement expresses the entire understanding of the Parties about the described subject matter and supersedes all prior and contemporaneous agreements, contracts, arrangements and understandings (whether oral, written, or implied). The Parties have had the opportunity to review this Agreement with their own attorneys prior to signing it. This Agreement, its interpretation, performance and enforcement, any and all disputes related in any way to it, and all other matters related in any way to it, shall be governed by the laws of the State of California, without giving effect to any conflict of laws principles. The venue for any disputes between the Parties that cannot be resolved informally will be in a court of competent jurisdiction in the County of Los Angeles, State of California. This Agreement may not be amended except by an instrument in writing signed by both Parties. This Agreement will be binding on the Parties’ successors and assigns; provided that, Customer will not assign or transfer any rights or obligations under this Agreement without advance written consent of the CEO or President of AVR.
12. Survival of Provisions. Notwithstanding the termination of this Agreement the provisions of this Agreement necessary to effect the Parties’ post-termination rights and obligations shall survive. For example, AVR’s ownership of the Licensed Products and data, end of License to Customer as of the Agreement termination date, return of the Licensed Products to AVR, and payment due AVR or deposit amounts due Customer.
SAMSUNG STANDARD LIMITED WARRANTY
What is Covered and For How Long? SAMSUNG TELECOMMUNICATIONS AMERICA, LLC (“SAMSUNG”) warrants to the original purchaser ("Purchaser") that SAMSUNG’s phones and accessories ("Products") are free from defects in material and workmanship under normal use and service for the period commencing upon the date of purchase and continuing for the following specified period of time after that date:
Phone 1 Year
Batteries 1 Year
Case/Pouch/Holster 90 Days
Other Phone Accessories 1 Year
What is Not Covered? This Limited Warranty is conditioned upon proper use of Product by Purchaser. This Limited Warranty does not cover: (a) defects or damage resulting from accident, misuse, abnormal use, abnormal conditions, improper storage, exposure to moisture or dampness, neglect, unusual physical, electrical or electromechanical stress, or defects in appearance, cosmetic, decorative or structural items, including framing, and any non-operative parts unless caused by SAMSUNG; (b) defects or damage resulting from excessive force or use of a metallic object when pressing on a touch screen; (c) equipment that has the serial number or the enhancement data code removed, defaced, damaged, altered or made illegible; (d) any plastic surfaces or other externally exposed parts that are scratched or damaged due to normal use; (e) malfunctions resulting from the use of Product in conjunction or connection with accessories, products, or ancillary/peripheral equipment not furnished or approved by SAMSUNG; (f) defects or damage from improper testing, operation, maintenance, installation, service, or adjustment not furnished or approved by SAMSUNG; (g) defects or damage from external causes such as collision with an object, or from fire, flooding, sand, dirt, windstorm, lightning, earthquake, or from exposure to weather conditions, or battery leakage, theft, blown fuse, or improper use of any electrical source; (h) defects or damage caused by cellular signal reception or transmission, or viruses or other software problems introduced into the Product; (i) any other acts which are not the fault of SAMSUNG; or (j) Product used or purchased outside the United States. This Limited Warranty covers batteries only if battery capacity falls below 80% of rated capacity or the battery leaks, and this Limited Warranty does not cover any battery if (i) the battery has been charged by a battery charger not specified or approved by SAMSUNG for charging the battery, (ii) any of the seals on the battery are broken or show evidence of tampering, or (iii) the battery has been used in equipment other than the SAMSUNG phone for which it is specified.
What are SAMSUNG’s Obligations? During the applicable warranty period, SAMSUNG will repair or replace, at SAMSUNG’s sole option, without charge to Purchaser, any defective component part of Product. To obtain service under this Limited Warranty, Purchaser must return Product to an authorized phone service facility in an adequate container for shipping, accompanied by Purchaser’s sales receipt or comparable substitute proof of sale showing the original date of purchase, the serial number of Product and the sellers’ name and address. To obtain assistance on where to deliver the Product, call Samsung Customer Care at 1-888-987-4357. Upon receipt, SAMSUNG will promptly repair or replace the defective Product. SAMSUNG may, at SAMSUNG’s sole option, use rebuilt, reconditioned, or new parts or components when repairing any Product or replace Product with a rebuilt, reconditioned or new Product. Repaired/replaced cases, pouches and holsters will be warranted for a period of ninety (90) days. All other repaired/replaced Product will be warranted for a period equal to the remainder of the original Limited Warranty on the original Product or for 90 days, whichever is longer. All replaced parts, components, boards and equipment shall become the property of SAMSUNG. If SAMSUNG determines that any Product is not covered by this Limited Warranty, Purchaser must pay all parts, shipping, and labor charges for the repair or return of such Product.
What Are the Limits On SAMSUNG’s Liability? EXCEPT AS SET FORTH IN THE EXPRESS WARRANTY CONTAINED HEREIN, PURCHASER TAKES THE PRODUCT “AS IS,” AND SAMSUNG MAKES NO WARRANTY OR REPRESENTATION AND THERE ARE NO CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OF ANY KIND WHATSOEVER WITH RESPECT TO THE PRODUCT, INCLUDING BUT NOT LIMITED TO:
· THE MERCHANTABILITY OF THE PRODUCT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE OR USE;
· WARRANTIES OF TITLE OR NON-INFRINGEMENT;
· DESIGN, CONDITION, QUALITY, OR PERFORMANCE OF THE PRODUCT;
· THE WORKMANSHIP OF THE PRODUCT OR THE COMPONENTS CONTAINED THEREIN; OR
· COMPLIANCE OF THE PRODUCT WITH THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT PERTAINING THERETO.
NOTHING CONTAINED IN THE INSTRUCTION MANUAL SHALL BE CONSTRUED TO CREATE AN EXPRESS WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE PRODUCT. ALL IMPLIED WARRANTIES AND CONDITIONS THAT MAY ARISE BY OPERATION OF LAW, INCLUDING IF APPLICABLE THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY LIMITED TO THE SAME DURATION OF TIME AS THE EXPRESS WRITTEN WARRANTY STATED HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN ADDITION, SAMSUNG SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RESULTING FROM THE PURCHASE, USE, OR MISUSE OF, OR INABILITY TO USE THE PRODUCT OR ARISING DIRECTLY OR INDIRECTLY FROM THE USE OR LOSS OF USE OF THE PRODUCT OR FROM THE BREACH OF THE EXPRESS WARRANTY, INCLUDING INCIDENTAL, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES, OR LOSS OF ANTICIPATED PROFITS OR BENEFITS, OR FOR DAMAGES ARISING FROM ANY TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE) OR FAULT COMMITTED BY SAMSUNG, ITS AGENTS OR EMPLOYEES, OR FOR ANY BREACH OF CONTRACT OR FOR ANY CLAIM BROUGHT AGAINST PURCHASER BY ANY OTHER PARTY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. THIS LIMITED WARRANTY SHALL NOT EXTEND TO ANYONE OTHER THAN THE ORIGINAL PURCHASER OF THIS PRODUCT AND STATES PURCHASER’S EXCLUSIVE REMEDY. IF ANY PORTION OF THIS LIMITED WARRANTY IS HELD ILLEGAL OR UNENFORCEABLE BY REASON OF ANY LAW, SUCH PARTIAL ILLEGALITY OR UNENFORCEABILITY SHALL NOT AFFECT THE ENFORCEABILITY FOR THE REMAINDER OF THIS LIMITED WARRANTY WHICH PURCHASER ACKNOWLEDGES IS AND WILL ALWAYS BE CONSTRUED TO BE LIMITED BY ITS TERMS OR AS LIMITED AS THE LAW PERMITS.
THE PARTIES UNDERSTAND THAT THE PURCHASER MAY USE THIRD-PARTY SOFTWARE OR EQUIPMENT IN CONJUNCTION WITH THE PRODUCT. SAMSUNG MAKES NO WARRANTIES OR REPRESENTATIONS AND THERE ARE NO CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY THIRD-PARTY SOFTWARE OR EQUIPMENT, WHETHER SUCH THIRD-PARTY SOFTWARE OR EQUIPMENT IS INCLUDED WITH THE PRODUCT DISTRIBUTED BY SAMSUNG OR OTHERWISE, INCLUDING THE ABILITY TO INTEGRATE ANY SUCH SOFTWARE OR EQUIPMENT WITH THE PRODUCT. THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE AND SUITABILITY OF ANY SUCH THIRD-PARTY SOFTWARE OR EQUIPMENT LIE SOLELY WITH THE PURCHASER AND THE DIRECT VENDOR, OWNER OR SUPPLIER OF SUCH THIRD-PARTY SOFTWARE OR EQUIPMENT, AS THE CASE MAY BE.
This Limited Warranty allocates risk of Product failure between Purchaser and SAMSUNG, and SAMSUNG’s Product pricing reflects this allocation of risk and the limitations of liability contained in this Limited Warranty. The agents, employees, distributors, and dealers of SAMSUNG are not authorized to make modifications to this Limited Warranty, or make additional warranties binding on SAMSUNG. Accordingly, additional statements such as dealer advertising or presentation, whether oral or written, do not constitute warranties by SAMSUNG and should not be relied upon.
Samsung Telecommunications America, LLC
1301 E. Lookout Drive
Richardson, Texas 75082
Phone: 1-888-987-HELP (4357)
©2010 Samsung Telecommunications America, LLC. All rights reserved.
No reproduction in whole or in part allowed without prior written approval.
Specifications and availability subject to change without notice.