Terms of Service

Last Updated: JUNE 11, 2021

These Terms of Service (these “Terms”) are between Chariot Kids, Inc., d/b/a InvinciKids (“InvinciKids”) and you, the individual or entity agreeing to these Terms (“Licensee”).

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CLICKING “I ACCEPT” (OR LANGUAGE TO SIMILAR EFFECT) OR ACCESSING OR USING THE INVINCIKIDS SERVICES, LICENSEE AGREES THAT LICENSEE HAS READ AND UNDERSTOOD, AND, AS A CONDITION TO ITS USE OF THE INVINCIKIDS SERVICES, LICENSEE AGREES TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, [INCLUDING INVINCIKIDS’ PRIVACY POLICY] (TOGETHER WITH ANY ADDENDA, THIS “AGREEMENT”). IF LICENSEE DOES NOT AGREE TO THIS AGREEMENT, THEN LICENSEE DOES NOT HAVE PERMISSION TO USE THE INVINCIKIDS SERVICES. LICENSEE’S USE OF THE INVINCIKIDS SERVICES, AND INVINCIKIDS’ PROVISION OF THE INVINCIKIDS SERVICES TO LICENSEE, CONSTITUTES AN AGREEMENT BY INVINCIKIDS AND BY LICENSEE TO BE BOUND BY THIS AGREEMENT. If Licensee is an entity, organization, or company, the individual accepting this Agreement on Licensee’s behalf represents and warrants that such individual has the authority to bind Licensee to this Agreement and Licensee agrees to be bound by this Agreement.

1. DEFINITIONS

(a) “Account” has the meaning as set forth in Section 2(a).

(b) “Authorized Users” means persons that are authorized by Licensee to access and use the InvinciKids Services under Licensee’s Account in accordance with this Agreement.

(d) “Documentation” means any user documentation, in all forms, relating to the InvinciKids Services (e.g., user manuals, help files, discussion forum) that InvinciKids makes available to Licensee.

(e) “InvinciKids Services” means the website at https://www.invincikids.org/, and related products and services made available by InvinciKids to Licensee, including any application or application package, data, software, Service Content, and other materials made available on or via InvinciKids’ platform from time to time to Licensee under this Agreement.

(f) “Purpose” means the objective to increase the access and use of immersive technology in healthcare that is consistent with and in furtherance of InvinciKids’ mission as a non-profit organization.

(g) “Service Content” means any content (including any virtual reality content and application) made available by InvinciKids on or via the InvinciKids Services under this Agreement.

(h) “Term” has the meaning as set froth in Section 5(a).

2. INVINCIKIDS SERVICES

(a) Account; Authorized users. Subject to Licensee’s continued compliance with the terms and conditions of this Agreement, InvinciKids will provide to Licensee an account (“Account”) with which Licensee may access the InvinciKids Services during the Term. Licensee may allow Authorized Users to exercise the license rights granted under this Agreement, provided that Licensee will be solely responsible for any act or omission by Authorized Users. Licensee will, and will ensure that Authorized Users, maintain the confidentiality and security of its Account, and Licensee will be responsible for any activity that occurs under its Account.

(b) InvinciKids Services. Subject to Licensee’s continued compliance with the terms and conditions of this Agreement, InvinciKids grants to Licensee and Authorized Users a limited, worldwide, non-exclusive, non-transferable (except as provided by Section 9(d)), non-sublicensable right, during the Term, to access and use the InvinciKids Services solely for the Purpose. The foregoing right includes a license for Licensee: (i) to download and install any application package made available in connection with the InvinciKids Services; and (ii) to use the Service Content as permitted by the functionalities of the InvinciKids Services. Unless otherwise approved in writing by Invincikids, Licensee will not use the Service in connection with more than [50] Devices.

(c) Use of the Documentation. Subject to Licensee’s continued compliance with the terms and conditions of this Agreement, InvinciKids grants to Licensee a limited, worldwide, non-exclusive, non-transferable (except as provided by Section 9(d)) license, without right of sublicense, during the Term, to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the InvinciKids Services in accordance with this Agreement.

(d) Support. InvinciKids will use commercially reasonable efforts to maintain and preserve the quality of the InvinciKids Services. However, InvinciKids has no obligation to provide Licensee or Authorized Users with any technical support or customer service.

(e) Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Licensee will not, and will not permit or authorize Authorized Users or other third parties to: (i) rent, lease, or otherwise permit any third party to use the InvinciKids Services or Documentation; (ii) use the InvinciKids Services to provide services to any third party (e.g., as a service bureau); (iii) distribute or disclose part or all of the InvinciKids Services to any third party; (iv) circumvent or disable any security or other technological features or measures of the InvinciKids Services; (v) reproduce, publicly display, or publicly perform the InvinciKids Services; (vi) modify or create derivative works of the InvinciKids Services; or (vii) reverse engineer, reverse compile, or attempt to discover the source code of any portion of the InvinciKids Services.

(f) Suspension. InvinciKids reserves the right to suspend Licensee’s access to and use of the InvinciKids Services at any time if InvinciKids, in its sole discretion, determines that Licensee has breached any term hereof, violated any use restriction (including Section 2(e)), or that continued access to or use of the InvinciKids Services by Licensee will or is likely to result in any harm (financial or otherwise) to InvinciKids in any way.

(g) Data. InvinciKids may access, view, or analyze the data generated from Licensee’s access to and use of the InvinciKids Services to support, maintain, and improve the InvinciKids Services. InvinciKids will not share with third parties or publish any data provided by Licensee or Authorized Users under this Agreement without permission. The parties do not intend for Licensee to provide, or InvinciKids to collect or receive, any personally identifiable data or sensitive data under this Agreement.

3. LICENSEE OBLIGATIONS

(a) Compliance with Laws; Export. Licensee will use the InvinciKids Services and Documentation in compliance with all applicable laws and regulations (including any local laws if Licensee is not located in the United States). In particular, Licensee will, and will ensure that Authorized Users, comply with all United States laws and regulations controlling the export of licensed software, including the Export Administration Regulations (15 CFR 730-774), the International Traffic in Arms Regulations (22 CFR 120-130) and the various economic sanctions regulations administered by the US Department of the Treasury (31 CFR 500-600). These laws and regulations may, among other things, prohibit or require a license for the export or retransfer of certain software in source code or binary code to specified countries, entities, and persons. It is Licensee’s sole responsibility to ensure its and Authorized Users’ compliance with these applicable laws and regulations. Licensee acknowledges and agrees that it may be held responsible for any violation thereof by itself or its Authorized Users. Licensee is solely responsible for determining the applicability of any laws to its activities under this Agreement and ensuring its compliance therewith. Licensee will defend, hold harmless, and indemnify InvinciKids from and against any and all loss, damages, or costs incurred by InvinciKids arising from or related to Licensee’s breach of this Section 3(a).

(b) Protection against Unauthorized Use. Licensee will use reasonable efforts to prevent any unauthorized use or disclosure of the InvinciKids Services and Documentation and immediately notify InvinciKids in writing of any unauthorized use that comes to Licensee’s attention. If there is unauthorized use by anyone who obtained access to the InvinciKids Services directly or indirectly through Licensee, Licensee will take all steps reasonably necessary to terminate the unauthorized use. Licensee will cooperate and assist with any actions taken by InvinciKids to prevent or terminate unauthorized use of the InvinciKids Services or Documentation.

(c) Devices. Licensee may need to obtain or use certain virtual reality hardware, computers, and other devices (“Devices”) in order to enjoy the benefits of the InvinciKids Services. Unless otherwise agreed to in writing by the parties, InvinciKids has no obligation to provide any Devices to Licensee or ensure that the InvinciKids Services work with Licensee’s Devices. Licensee is solely responsible for acquiring, maintaining, and operating any Devices, and InvinciKids is and will not be responsible or liable for any loss or damage caused by or related to any Devices, including any inability to access or use the InvinciKids Services or any part thereof, or errors or malfunctioning of, or damage to any Devices.

(d) No Fees. In consideration for Licensee’s efforts in joining InvinciKids to further the Purpose, the InvinciKids Services are provided to Licensee free of charge under this Agreement.

4. OWNERSHIP

(a) Marking. The visual interfaces, graphics, design, compilation, information, data, computer code, Service Content and other elements of the InvinciKids Services and Documentation (“InvinciKids Materials”) are protected by intellectual property and other laws and are property of InvinciKids or its third-party licensors. Licensee will not alter or remove any copyright or proprietary rights notices included in any portion of the InvinciKids Services, including any Service Content.

(b) Reservation of Rights. Licensee will not have any rights to InvinciKids Materials except as expressly granted in this Agreement. InvinciKids reserves to itself and its licensors all rights to the InvinciKids Materials not expressly granted to Licensee in accordance with this Agreement.

5. TERM AND TERMINATION

(a) Term. This Agreement commences upon Licensee’s acceptance of this Agreement and will continue for [two years] unless this Agreement is terminated earlier in accordance with the terms of this Agreement (“Term”). This Agreement may be renewed upon mutual agreement by both parties.

(b) Termination for Material Breach. Either party may immediately terminate this Agreement upon written notice if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party.

(c) Termination for Convenience. Either party may terminate this Agreement upon 30 days’ prior written notice to the other party.

(d) Effects of Termination: Upon expiration or termination of this Agreement, all licenses granted to Licensee under this Agreement will terminate, and Licensee must immediately cease accessing and using the InvinciKids Services.

(e) Post-Termination Obligations. Upon expiration or termination of this Agreement, (i) any and all liabilities accrued prior to the effective date of the termination will survive; (ii) Licensee will provide InvinciKids with a written certification signed by an authorized Licensee representative certifying that all use of the InvinciKids Services and Documentation by Licensee has been discontinued; and (iii) Licensee will return to InvinciKids or destroy, at InvinciKids’ option, any InvinciKids Materials then in Licensee’s possession.

(f) Survival. Sections 1, 4, 5(d), 5(e), 5(f), 6(b), 6(c), 7, 8, and 9 (except 9(b)) will survive any expiration or termination of this Agreement.

6. WARRANTIES AND DISCLAIMER

(a) Mutual Warranties. Each party represents and warrants to the other that: (i) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (ii) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.

(b) Disclaimer. THE INVINCIKIDS MATERIALS (INCLUDING INVINCIKIDS SERVICES AND DOCUMENTATION) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, INVINCIKIDS AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. INVINCIKIDS AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR COURSE OF DEALING. INVINCIKIDS DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE INVINCIKIDS SERVICES OR ANY OTHER INVINCIKIDS MATERIALS. INVINCIKIDS DOES NOT WARRANT THAT THE INVINCIKIDS SERVICES ARE ERROR-FREE OR THAT ACCESS TO AND OF THE INVINCIKIDS SERVICES WILL BE SECURE OR UNINTERRUPTED.

IT IS LICENSEE’S SOLE RESPONSIBILITY TO ENSURE THAT ANY AUTHORIZED USER IS IN THE PROPER CONDITION (PHYSICAL, MENTAL, OR OTHERWISE) TO USE THE INVINCIKIDS SERVICES. ANY ACCESS TO AND USE OF THE INVINCIKIDS SERVICES IS AT LICENSEE (AND AUTHORIZED USERS’) OWN RISK AND DISCRETION. INVINCIKIDS EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON LICENSEE’S AND ANY AUTHORIZED USER’S USE OF THE INVINCIKIDS SERVICES, INCLUDING ANY RESULTS THEREOF.

(c)All disclaimers apply to the fullest extent permitted by law. Invincikids does not disclaim any warranty or other right that Invincikids is prohibited from disclaiming under applicable law.

7. LICENSEE INDEMNIFICATION

(a) Defense. Licensee will defend InvinciKids from any actual or threatened third-party claim, proceeding, or suit (each, a “Claim”) arising out of or based upon: (i) Licensee’s use of the InvinciKids Services; (ii) Licensee’s breach of any of the provisions of this Agreement or any applicable laws or regulations; (iii) any dispute between Licensee and a third party (including Authorized Users); or (iv) any Devices, provided that (1) InvinciKids gives Licensee prompt written notice of the Claim; (2) InvinciKids grants Licensee full and complete control over the defense of the Claim; (3) InvinciKids provides assistance in connection with the defense and settlement of the Claim as Licensee may reasonably request; and (4) InvinciKids complies with any settlement or court order made in connection with the Claim. InvinciKids will have the right to participate in the defense of a Claim at its own expense and with counsel of its own choosing, but Licensee will have sole control over the defense of the Claim, except that Licensee will not settle any Claim without InvinciKids’ prior written consent.

(b) Indemnification. Licensee will indemnify InvinciKids from and pay (i) all damages, costs, and attorneys’ fees finally awarded against InvinciKids in any Claim under Section 7(a); (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by InvinciKids in connection with the defense of a Claim under Section 7(a) (other than attorneys’ fees and costs incurred after Licensee has accepted defense of the Claim); and; (iii) all amounts that Licensee agrees to pay to any third party to settle any Claim under Section 7(a).

8. LIMITATIONS OF LIABILITY

(a) Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, INVINCIKIDS AND ITS LICENSORS WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LICENSEE FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF INVINCIKIDS IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

(b) Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL INVINCIKIDS AND ITS LICENSORS’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED $100.

(c) Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

9. GENERAL

(a) Relationship. InvinciKids will be and act as an independent contractor (and not as the agent or representative) of Licensee in the performance of this Agreement.

(b) Marks. During the Term, InvinciKids may display and use the logos, trade names, trademarks, and service marks (“Licensee Marks”) of Licensee to indicate or refer to the parties’ relationship herein. InvinciKids will use commercially reasonable efforts to use the Licensee Marks in compliance with Licensee’s trademark use guidelines that Licensee provides to InvinciKids. All goodwill generated through InvinciKids’ use of the Licensee Marks will inure to the benefit of Licensee.

(c) No Third-Party Beneficiary. This Agreement is intended for the benefit of the parties hereto and their respective successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by any other person (including Authorized Users).

(d) Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees in writing to assume and fulfill all of the assigning party’s obligations under this Agreement.

(e) Subcontractors. InvinciKids may utilize a subcontractor or other third party to perform its duties under this Agreement so long as InvinciKids remains responsible for all of its obligations under this Agreement.

(f) Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 9(f). Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.

(g) Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

(h) Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Subject to Section 9(i), each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Santa Clara County, California in connection with any action arising out of or in connection with this Agreement.

(i) Arbitration. Except for InvinciKids’ right to seek an injunction or other equitable remedies for any breach of this Agreement by Licensee in a court of competent jurisdiction, any dispute or claim arising out of or in connection with this Agreement shall be finally settled by binding arbitration in Palo Alto, California under the Commercial Rules of the American Arbitration Association by one arbitrator appointed in accordance with said rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

(j) Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

(k) Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the InvinciKids Services under this Agreement is found to be illegal, unenforceable, or invalid, Licensee’s right to use the InvinciKids Services will immediately terminate.

(l) Entire Agreement. This Agreement, including all agreements referenced in these Terms, is the final and complete expression of the agreement between these parties regarding Licensee’s use of the InvinciKids Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to Licensee’s acceptance of this Agreement. No employee, agent, or other representative of InvinciKids has any authority to bind InvinciKids with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Throughout this Agreement, the use of the word “including” means “including but not limited to.” This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. InvinciKids will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Licensee in any receipt, acceptance, confirmation, correspondence, or otherwise, unless InvinciKids specifically agrees to such provision in a writing signed by an authorized agent of InvinciKids.

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