PRODUCT AND LICENSE AGREEMENT

RECITALS

WHEREAS, BLUDOVE owns certain technology, hardware, patents, copyrights, trademarks, trade secrets, and other assets relating to a mixed reality product (the “BluDove Product”); and

WHEREAS, BLUDOVE wishes to grant to Customer a license to utilize BLUDOVE’s mixed reality product.

NOW, THEREFORE, for and in consideration of the mutual benefits and covenants set forth herein, the parties hereto, intending to be legally bound hereby, agree as follows.

1.  EQUIPMENT; USE OF EQUIPMENT; ADDITIONAL HEADSETS

1.1 Equipment. BLUDOVE shall provide Customer with the following equipment (the “Equipment”) to use with the BluDove Product:

(1) Headset

(1) Top Strap

(1) Soft Case

(1) Facial Gaskets

(1) Power Block

(1) External Battery

(2) Cables

(1) Bundle of 6 Content Experiences from BluDove’s Library which may be updated every 6 months

1.2  Use of the Equipment. Use and license of the Equipment and BluDove Product by the Customer, is subject to the following:

a. BLUDOVE will cause the Equipment and BluDove Product to be delivered to the Customer within 20 business days following the payment as set forth in section 2 below.  

b. Customer will retain original packaging (plastic bag/box) to use in the event the Equipment needs to be returned.

c. Customer may use the Equipment and BluDove Product during the term of the Agreement.

d.Customer agrees to take care of the Product and prevent abuse of the product during the term of the Agreement and ensure that it is kept in a safe and secure location at all times.

e. During the term of the Agreement, BLUDOVE grants to Customer the right to use the Equipment and BluDove Product, on the terms and conditions hereinafter set forth. Title to the Equipment and BluDove Product shall be and remain in BLUDOVE at all times. Customer shall use the Equipment and  BluDove Product hereunder in a careful and proper manner, and in accordance with all applicable specifications, which BLUDOVE shall provide to Customer with the Equipment and BluDove Product. Customer shall not undertake any repairs or modifications to the Equipment and BluDove Product; any repairs needed shall be the sole responsibility of BLUDOVE. Customer shall promptly notify BLUDOVE of any defective or malfunctioning Equipment or BluDove Product.

2. PAYMENT; LICENSE FEE; FORM OF PAYMENT

2.1 Payment Option Selection. Customer has, upon execution of this Agreement and as a condition hereto, irrevocably elected one and only one of the payment options whose election is evidenced and confirmed by Customer’s signature thereon.

2.2 License Fee Option Selection. Customer has, upon execution of this Agreement and as a condition hereto, irrevocably elected one and only one of the license fee options whose election is evidenced and  confirmed by Customer’s signature thereon.

2.3 Form of Payment. BLUDOVE may accept various forms of payment, including credit and debit cards. Additional terms with your payment provider may apply. If BLUDOVE agrees that Customer will pay the Payment Schedule and License Fee Schedule by payment card (credit or debit card), Customer will maintain valid and updated payment card information with BLUDOVE at all times.

By providing payment card information to BLUDOVE, Customer acknowledges that it is authorized to use the designated payment card and you authorize us to charge such payment card for all one-time and recurring fees. When you provide your payment information, you authorize us (or a third party payment processor) to process and store your payment and related information. Depending on where you are located or ask to have the BluDove Products shipped or delivered, BLUDOVE may utilize an agent, subsidiary, or affiliate to process payment and shipping. In the event the payment method Customer designates cannot be verified, is invalid, or is not otherwise acceptable, BLUDOVE may suspend or cancel Customer’s order or services.

Customer is responsible for resolving any problems we encounter in order to proceed with Customer’s order and services.

Prices are subject to change without notice. BLUDOVE reserves the right to refuse or cancel orders and services at any time and in our sole discretion.

3. LICENSE; OWNERSHIP

3.1 Limited Rights. Subject to your compliance with the terms and conditions of this Agreement, BLUDOVE grants you a non-exclusive, revocable, royalty-free and non-transferable license during the term of the Agreement to use and operate the Equipment and BluDove Product at a single designated practice address. 

3.2 Conditions. The BluDove Product is the proprietary product and information of BLUDOVE or its licensors who retain exclusive title to their intellectual property rights in the Product. Your rights to the Product are limited to those expressly granted above and BLUDOVE and/or its licensors reserve all rights not expressly granted in this Agreement. The rights granted to you above are conditional upon your compliance with the following obligations:

a.  You will not copy the BluDove Product or documentation, in whole or in part, except as expressly authorized in this Agreement.

b.  You will not sell, resell, distribute, transfer, assign, lease, lend, sublicense or rent the BluDove Product or documentation, or make the functionality of the BluDove Product available to other party through any means.

c. You will not use the BluDove Product to perform any competitive evaluation of the BluDove Product.

d.  You will not disassemble, decompile, reverse engineer, modify or create derivative works of the BluDove Product or documentation nor permit any third party to do so, except to the extent such restrictions are prohibited by applicable mandatory local law.

e.  You will not allow the BluDove  Product to be accessed or used by anyone other than your employees and patients, and will not display the BluDove Product to, anyone other than the employees and patients, without BLUDOVE's prior express written consent.

f.  You will not disclose to any third party any comparison of the results of operation of the BluDove Product with other products.

g.  You will not in any manner alter the copyright, trademark or other proprietary rights notices appearing on the BluDove Product as delivered by BLUDOVE.

h.  You will not run or operate the Equipment and/or BluDove Product upon termination of this Agreement.

3.3 Feedback and Analytics. Customer may speak with BLUDOVE to, provide suggestions, data, feedback and other information to BLUDOVE, its subcontractors or authorized distributors regarding possible improvements in the operation, functionality or use of BLUDOVE’s Product. You hereby grant to BLUDOVE and its subcontractors, without charge, the right to use, distribute, copy, modify and create derivative works of any such suggestions, data, feedback and information solely for the purpose of improving the operation, functionality or use of its existing Product and future product offerings and commercializing such offerings.

3.4 Updates.  Customer acknowledges that BLUDOVE may provide updates, upgrades, patches,  troubleshooting and other modifications to the BluDove Product (together “Updates”) that must be remotely installed for Customer to use the BluDove Product properly or at all. Customer agrees at all times to provide BLUDOVE with Customer’s current WiFi login credentials as BLUDOVE may provide Updates remotely and access the BluDove Product for such purpose, without your knowledge, and you hereby grant to BLUDOVE the right to deploy and apply such Updates. This Agreement will apply to all BluDove Product updates, including all downloadable content for the BluDove Product.  BLUDOVE may, by automatic update or otherwise, modify the BluDove Product at any time for any reason.

3.5 Ownership. Customer acknowledges and agrees that the BluDove Product including, without limitation, the Marks and the goodwill associated with the BluDove Product, are owned by BLUDOVE and are the exclusive property of BLUDOVE and can be used only with BLUDOVE’s prior written consent as granted through this License. Customer will retain the goodwill in its business apart from the goodwill associated with the use of the BluDove Product. Customer further acknowledges and agrees that upon the termination of this Agreement all of Customer’s rights in the BluDove Product shall cease, and Customer shall have no interest in or right to use any of the BluDove Product, including, but not limited to, the device, policies & standards, proprietary management systems or any trade secrets which may have come into the possession of Customer. Customer will not in any manner represent that it owns the BluDove Product or any part or component of the BluDove Product, and Customer hereby acknowledges that its use of the BluDove Product shall not create any right, title, or interest in or to the BluDove Product in favor of Customer, but that all use by Customer of the BluDove Product shall inure to the sole benefit of and be on behalf of BLUDOVE. Should Customer use any part or component of the BluDove Product or create any expansion of the services in violation of this Agreement, Customer shall execute and deliver to BLUDOVE an assignment of all rights Customer might have created in any work, trademark, or other intellectual property right using or including the BluDove Product together with any goodwill associated with the BluDove Product for such expansion of the services. Customer further acknowledges and agrees that Customer will not at any time do, or cause to be done, any act or thing to contest, oppose, seek to invalidate or in any way impair or intend to impair the validity or enforceability of any applications, registrations, or rights in or for the BluDove Product or any of BLUDOVE’s exclusive right, title and interest in the BluDove Product.

4. CONFIDENTIALITY

4.1 Confidential Information. "Confidential Information" means: regardless of whether such information is marked or otherwise identified in writing as confidential, (a) each party's software products, in byte code or source code form; (b) any authorization keys and passwords delivered in order to operate such products; (c) documentation, product road maps and development plans, and product pricing information; and (d) any business, marketing, technical or training information of a party.

4.2 Exclusions. The obligations in Section 3.3 will not apply to the extent any information: (a) is or becomes generally known or available to the public through no fault of or breach of this Agreement by the receiving party ("Receiving Party"); (b) was rightfully in the Receiving Party’s possession at the time of disclosure, without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the disclosing party's (“Disclosing Party”) Confidential Information and without breach of this Agreement; or (d) is rightfully received by the Receiving Party from a third party without restriction on use or disclosure. The existence of this Agreement and the nature of the business relationship between the parties are not considered Confidential Information.

4.3 Use and Disclosure Restrictions. Receiving Party will: (a) not use the Disclosing Party's Confidential Information except as necessary to exercise the rights granted under this Agreement or to evaluate opportunities to license additional Product from BLUDOVE pursuant to the Agreement; (b) not disclose such Confidential Information to any third party other than to its employees or authorized users. The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Agreement: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (b) on a confidential basis to its legal or financial advisors that need to know in order to provide business advice to such party; (c) as required under applicable securities regulations; or (d) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such party.

5. WARRANTY; MAINTENANCE OR SUPPORT.

BLUDOVE will provide maintenance or support services in connection with the Product as follows:

a.      The BluDove headset has a 2-year warranty.

b.     BLUDOVE will provide customer service support via phone and email during normal business hours (weekdays excluding company holidays from 9am-5pm EST).

c.      If the BluDove headset breaks for any purpose covered by the manufacturer’s warranty, a replacement headset will be provided free of charge by BLUDOVE. If not covered by warranty, Client acknowledges it will be responsible for paying $2,000.00 to BluDove within 30 days.

The Product is being provided "AS IS." BLUDOVE DISCLAIM ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY OR COMPLETENESS OF RESULTS, CONFORMANCE WITH DESCRIPTION, AND NON-INFRINGEMENT. BLUDOVE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.

6. DISCLAIMER; LIMITATION OF LIABILITY. 

6.1 Health Disclaimer. Virtual reality (VR) is an immersive experience and influences everyone differently. People who suffer from pre-consisting medical conditions such as a history of epilepsy or seizures, psychiatric disorders, severe headache, or earaches should speak to their doctor before using BLUDOVE.

BLUDOVE will not be held responsible for any health injuries or damage to property that resulted from the use of BLUDOVE’s software or hardware. By using BLUDOVE’s hardware or software, you agree to take part at your own risk and to our terms of use, whether you chose to review these terms or not. If you do not agree to or adhere to the terms of use precisely as they are written, you cannot use our products. The liability for damage to any property or injury while using BLUDOVE’s hardware or software lies solely on Customer and Customer’s users.

6.2 Limitation of Liability. IN NO EVENT WILL BLUDOVE BE LIABLE TO YOU, YOUR EMPLOYER, LICENSEE OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS, REVENUE, GOODWILL, ANTICIPATED SAVINGS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS OR SERVICES ARISING OUT OF THIS AGREEMENT, WHETHER BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), FAILURE OF A REMEDY TO ACCOMPLISH ITS PURPOSE, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BLUDOVE’s  LIABILITY UNDER THIS AGREEMENT EXCEED $1,000. You may have other rights under applicable mandatory local laws. This Agreement does not change your rights under applicable mandatory local laws if such laws do not permit it to do so.

7. TERM; TERMINATION; RETURN OF EQUIPMENT; FAILURE TO RETURN EQUIPMENT.

7.1 Initial Term and Renewal. The initial term of this Agreement shall be for the period designated by Customer at checkout on the Effective Date (the “Initial Term”). This Agreement shall automatically renew for an additional one (1) year period on the expiration date of the Initial Term, and on each successive anniversary date thereafter (each such date, an “Renewal Term”) unless either party gives written notice to the other party at least sixty (60) days prior to the expiration date of an Renewal Term that the Agreement is not being renewed and shall terminate on that expiration date of the Renewal Term.

7.2 Termination for Cause. Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). 

7.3 Termination for Convenience. Customer may choose to stop using the BluDove Product and terminate this Agreement at any time for any reason upon written notice to BLUDOVE, but, upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Initial Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

7.4 Effects of Termination. Upon any expiration or termination of this Agreement, Customer’s license to the BluDove Product must cease and Customer must return all Equipment and delete BluDove Product and Confidential Information or other materials of BLUDOVE in your possession. You will certify such deletion upon our request. If this Agreement is terminated by Customer in accordance with Section 7.2 (Termination for Cause), BLUDOVE will refund Customer any prepaid fees covering the remainder of the then-current Initial Term or renewal term after the effective date of termination. If this Agreement is terminated by BLUDOVE in accordance with Section 7.2 (Termination for Cause), Customer will pay any unpaid fees covering the remainder of the then-current Initial Term or renewal term after the effective date of termination. In no event will termination relieve Customer of its obligation to pay any fees payable to BLUDOVE for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

7.5 Return of Equipment. If this Agreement is terminated by either party, Customer must return the Equipment to BLUDOVE within ten (10) days of the termination of this Agreement.

7.6 Failure to Return Equipment. Failure of Customer to return the Equipment to BLUDOVE after ten (10) days from termination of this Agreement, will result in a fee of up to $2,000 per piece of unreturned equipment payable within thirty (30) days.  If BLUDOVE is required to initiate legal action to recover the fee for the unreturned equipment or, at its, option, the equipment itself, then Customer will be liable for collection costs and/or any reasonable attorney fees, expenses and court costs incurred by BLUDOVE in bringing legal action.

7.7 Survival. Sections 1, 3.2, 4, 5, 6, 7, 8 and 9 will survive the termination of this Agreement.

8. NOTICES

All notices, communications, and remittances shall be sent to BLUDOVE at:

BluDove, Inc.
875 Third Ave, Suite 6A
New York, NY 10022
Attention: Legal

and to the Customer at the address designated at checkout:

by first-class mail, postage prepaid, or by facsimile transmission, confirmed within three (3) days by first-class mail, postage prepaid, addressed as set forth above, provided that either party may from time to time notify the other party of a different address to which all notices, communications or remittances shall thereafter be addressed.  Notice shall be deemed to have been given as of the date of its deposit with the United States Postal Service.

9. MISCELLANEOUS.

9.1 Multiple Counterpart Signatures. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original but both of which together shall constitute one and the same instrument. Electronic signatures shall be deemed to be originals for purposes of execution and proof of this Agreement9.2 Publicity. Customer shall not use BLUDOVE’s name, trademarks, service marks, logos, any description that would reveal their identity or other forms of identification, whether registered or not, in any way, including any advertisements, press releases, announcements, customer lists (including customer lists on any website), materials of a public or promotional nature or in soliciting other clients or making any direct or indirect public reference to this Agreement or any other contract between the parties, without first obtaining BLUDOVE’s written permission, which may be withheld or conditioned (including as to content and timing) in BLUDOVE’s sole discretion. In the event that any such consent should be granted for a particular communication, BLUDOVE’s shall not be under any further obligation to provide consent in any future request. Customer agrees that it shall not negatively reference or disparage BLUDOVE.

9.2 Governing Law. Any dispute arising out of, related to or in connection with this Agreement shall be governed by, and this Agreement shall be construed under, the laws of the State of New York, without giving effect to any choice of law or conflict of laws principles that would result in the application of the laws of any other state.

9.3 Waiver. The failure of a party to enforce any right or provision of this Agreement shall not be construed as a waiver of such right or provision or a waiter by such party to thereafter enforce such rights or provisions or any other rights or provisions under the Agreement.

9.4 Severability. If any term, condition or provision of this Agreement is held to be unenforceable for any reason, it shall be interpreted to achieve the intent of the parties to this Agreement to the extent possible rather than voided. In any event, all other terms, conditions and provisions of this Agreement shall be deemed valid and enforceable to their full extent.

9.5 Cumulative Remedy. All rights and remedies of each party to this Agreement will be cumulative, and the exercise of one or more rights or remedies will not preclude the exercise of any other right or remedy available under this Agreement or applicable law.

9.6 Force Majeure. Any delays in or failure of performance of either party shall not constitute a default under this Agreement or give rise to any claim for damages to the extent such delays or failure of performance are caused by circumstances beyond the reasonable control of such party, including, but not limited to, acts of God, fire, flood, explosion, war, terrorism, strikes or work stoppages, inability to obtain equipment or transportation, or loss of any necessary utility. The time for performance so delayed will be deemed extended for the period of such delay.

9.7 Independent Contractor Status. Each party shall be considered to be an independent contractor hereunder. The relationship between the parties hereto shall not be construed to be that of employer and employee, or to constitute a partnership, joint venture or agency of any kind. Neither party shall have the right to bind the other party to any contract or other commitment.

9.8 Assignment. No assignment of this Agreement or the rights and obligations hereunder shall be valid without the specific written consent of both parties hereto. Notwithstanding anything herein to the contrary, BLUDOVE shall have the right to assign this Agreement to an entity that is controlled by, under common control with, or that controls it, or that is formed as the result of an internal restructuring of said party and/or its affiliates, by providing written notice thereof to Customer.

9.9 Third-party Beneficiaries. This Agreement shall not be construed as, or deemed to be, an agreement for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever.

9.10 Entire Agreement. This Agreement, and any other documents, attachments, exhibits, etc. incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.