IKONA, Inc. Service Terms and Conditions for Subscription Services Agreement
THE SERVICES AGREEMENT OF IKONA, INC. ("IKONA", “We”, “Us” or “Our”) AND THESE SERVICE TERMS AND CONDITIONS (COLLECTIVELY, THIS "AGREEMENT") SHALL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN YOU AND IKONA CONCERNING YOUR AND YOUR END USERS’ USE OF THE IKONA VIRTUAL REALITY HEADSET AND SOFTWARE APPLICATION, AND IKONA’S SUPPORT SERVICES (collectively, the "Service"). BY ORDERING OR OTHERWISE USING THE SERVICE, YOU AGREE TO AND ACCEPT THIS AGREEMENT, INCLUDING THE SPECIFIC OBLIGATIONS AND LIMITATIONS SET FORTH HEREIN. YOU AND YOUR END USERS MAY USE THE SERVICE ONLY IN ACCORDANCE WITH THIS AGREEMENT. NO OTHER CONTRACT OR TERMS CONCERNING YOUR USE OF THE SERVICE MAY BE CREATED IN ANY OTHER MANNER, INCLUDING BY MEANS OF YOUR ORDERS OR SIMILAR DOCUMENTS UNLESS SIGNED AND ACKNOWLEDGED BY IKONA. The terms "You" or "Your" refer to the company or other legal entity ordering or using the Service, and Affiliates of that company or entity, and for which the Service is being made available.
SERVICE. The term the "Service" means: (i) the lease of the IKONA Virtual Reality Headset Bundle(s) (each, a “Bundle”); and (ii) use of all IKONA software applications in conjunction therewith. "Service" includes all related services, software, media, websites, and other designated content, as provided to You by IKONA, and which are ordered by You under a Services Agreement. Unless otherwise noted, all such services are included with the service fees indicated on Your Services Agreement.
USERS. The Service is provided to You and individuals who are authorized by You to use the Service, including, but not limited to, Your patients, clients, employees, consultants, contractors and agents, or third parties with which You transact business (“End Users”) on a subscription basis subject to Your Services Agreement and as otherwise provided in these Service Terms and Conditions.
PURCHASED SERVICE. IKONA shall make the Service available to You pursuant to this Agreement and the applicable Services Agreement during a subscription term. You agree that Your use hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by IKONA regarding future functionality or features.
ASSISTANCE. IKONA will provide reasonable assistance during IKONA business hours (Monday through Friday 10 a.m. – 5 p.m. ET (except legal holidays) via telephone or video chat regarding setup, training, technical support.
UPGRADES. IKONA may from time to time, in its sole discretion, send You new or upgraded Bundles, in which event You shall, within 15 days of Your receipt of the new or upgraded Bundles, transmit to IKONA all prior Bundles leased. If all prior Bundles are not received by IKONA within 30 days of your receipt of the new or upgraded Bundles, IKONA may charge Your method of payment for the value of the unreturned Bundles.
You shall, except as otherwise provided in a Services Agreement, (i) be responsible for all End Users' compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Content and of the means by which You acquired Your Content; (iii) use best efforts to prevent unauthorized access to or use of the Service, and notify IKONA promptly of any such unauthorized access or use, and (iv) use the Service only in accordance with applicable laws and government regulations and any instruction manuals which IKONA may provide. You shall not (i) make the Service available to anyone other than End Users, (ii) sell, resell, rent or lease the Service, (iii) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use the Service to store or transmit malicious code, (v) interfere with or disrupt the integrity or performance of the Service or third-party content contained therein, or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
LOST OR DAMAGED BUNDLES
DAMAGED BUNDLES. IKONA will replace up to two (2) damaged Bundles per Bundle leased per Service Term, upon return of the damaged Bundle(s) to IKONA. You bear the entire risk of damage or destruction of the Bundles in whole or in part from any reason whatsoever in excess thereof (an “Excess Damage Loss”). No Excess Damage Loss to a Bundle shall relieve You from the obligation to pay the payments or from any other obligation under this Agreement. In the event of any damage to any Bundle, You shall immediately notify IKONA of the same and You shall, if so directed by IKONA, immediately return the Bundle to IKONA. If IKONA determines that any Bundle has suffered an Excess Casualty Loss, then IKONA may charge your method of payment immediately for the value of the loss.
LOST BUNDLES. You are responsible for lost, stolen or unreturned Bundles. You agree that any loss or theft of a Bundle(s) shall not reduce the number of Bundles leased and shall not relieve You of any of Your obligations under this Agreement, including payment obligations, for the remainder of the Service Term. You further agree that IKONA may charge your payment method for the value of a Bundle(s) upon a loss or theft thereof, or upon your failure to return a Bundle(s) within a reasonable time after the expiration or termination of this Agreement. You shall immediately notify IKONA of any loss or theft of any Bundle.
FEES AND PAYMENT FOR SERVICE
FEES AND PAYMENT. You have an initial 45-day trial period from the start of the initial Service Term on the date Your order is placed, including up to 15 days for order fulfillment and shipping. Billing of fees for the Service will automatically commence 45 days after the start of the initial Service Term for the then subsequent month and will be billed on a monthly basis thereafter for the remainder of the Service Term and any subsequent terms upon renewal. We will either automatically draft Your designated bank account or credit card through IKONA’s billing software. Except as otherwise specified herein, payment obligations are non-cancellable and fees paid are non-refundable. You may, during the Service Term, return one or more undamaged Bundles to IKONA, upon IKONA’s receipt of which the number of IKONA VR Bundles leased and the fees incurred shall be decreased accordingly for the remainder of the Term, beginning on the next regular billing date. If all IKONA VR Bundles leased are returned to IKONA within 45 days from the start of the initial Service Term, you will not be charged a fee.
PAYMENT METHOD. You shall provide IKONA with a valid payment method (bank draft or valid credit card) at the time of Your Order and authorize IKONA to make charges to Your payment method in accordance with this Services Agreement. The fees as defined in the Services Agreement will be charged to Your designated payment method on a monthly basis on the billing date determined by IKONA’s billing software, beginning 45 days after the start of the initial Service Term. You are responsible for updating Your payment method as necessary.
OVERDUE CHARGES. If Your payment method does not fully pay the fees then due, then at its discretion IKONA may charge You interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
SUSPENSION OF SERVICE AND ACCELERATION. If any amount owing by You under this or any other agreement for the Service or other services is thirty (30) or more days overdue, IKONA may, without limiting its other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Service and other services to You until such amounts are paid in full.
TAXES. IKONA’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively referred to as "Taxes"). You shall be responsible for paying all Taxes associated with Your purchases hereunder. If IKONA has the legal obligation to pay or collect Taxes for which You are responsible under this section, the appropriate amount shall be invoiced to and paid by You.
TERMS AND TERMINATION.
TERM OF AGREEMENT. This Agreement commences on the start date specified in the applicable Services Agreement and continues for the Service Term specified therein. Except as otherwise specified in the applicable Services Agreement, this Agreement shall automatically renew for additional periods equal to the then-expiring Service Term unless You give IKONA written notice of non-renewal at least thirty (30) days before the end of the then-applicable Service Term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless IKONA has given You written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. You may increase or decrease the number of Bundles licensed during an upcoming Service Term.
RETURN OF VR BUNDLES. You may, during the Service Term, return one or more undamaged Bundles to IKONA, upon IKONA’s receipt of which the number of IKONA VR Bundles leased shall be decreased accordingly for the remainder of the Term, beginning on the first day of the following calendar month. You may terminate this Agreement during the Service Term by returning to IKONA all of the VR Bundles leased, in undamaged condition, which termination shall be effective on the last day of the calendar month in which IKONA receives the returned Bundles.
DUTIES UPON TERMINATION. Upon termination or expiration of the Services Agreement for any reason, all rights granted to You under this Service Agreement shall forthwith terminate and revert immediately to IKONA. You and Your End Users shall immediately discontinue all use of the Bundles and transmit to IKONA all Bundles and related materials. If all Bundles are not received by IKONA within 30 days from the date of termination or expiration, IKONA will charge Your Method of Payment for the value of the unreturned Bundles.
REFUND OR PAYMENT UPON TERMINATION. Upon any termination for cause by You, or termination by IKONA without cause, IKONA shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by IKONA, You shall pay any unpaid fees covering the remainder of the term of all Services Agreements after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to IKONA for the period prior to the effective date of termination.
PROPRIETARY AND INTELLECTUAL PROPERTY RIGHTS.
LICENSE ONLY. Service is licensed, not sold, and this Agreement only gives You and Your End Users limited rights of use. IKONA reserves all other rights. You have only been granted a non-exclusive, non-transferable license to use the Bundle and view the IKONA Software loaded therein.
RESERVATION OF RIGHTS. Subject to the limited rights expressly granted hereunder, IKONA reserves all right, title and interest in and to the Bundle and Service, including all related intellectual property rights. The Service is protected by copyright and other intellectual property laws and treaties. IKONA or its licensors own all title, copyright, and all other intellectual property rights in the Service. Nothing herein will be deemed to constitute a transfer by IKONA of its title in and to any of the foregoing. No rights are granted to You hereunder other than as expressly set forth herein.
OWNERSHIP OF YOUR CONTENT AND DATA. You exclusively own and are solely responsible for all right, title and interest in and to all of Your Content and data. You grant IKONA a personal, non-exclusive, royalty-free, non-transferrable, irrevocable license to use Your individual data for internal reference, research, and analysis, or to use Your data in the aggregate with the data of other End Users of the Service for the purpose of providing technical support and benchmarking system usage or performance. Your data will be stored on third-party commercial servers, but IKONA does not authorize such third parties to view or access Your data, nor does IKONA share Your data with any other third parties. The term "Your data" refers to all factual, measurable information concerning Your and Your End Users’ use of the Service collected by IKONA or retrievable by IKONA from the Service. You are responsible for all information and data input by You and End Users and all output generated in connection with your use of the Service, and for maintaining such information, output, and data. You own all data input and generated by the use of the Service by You and Your End Users. You have sole responsibility for adequate protection of the data input or generated in connection with Your and Your End Users’ use of the Services, and IKONA in no event shall have any liability therefor.
WORK PRODUCT, MODIFICATIONS. Any and all software ideas, enhancements to functionality, processes, methods, programming aids or flowcharts, documentation, and white paper developed, prepared, conceived, made or suggested by You, IKONA, their employees or third parties hired by either or both under or related to the performance or use of the Bundle or the license(s) granted hereunder, including all such developments as are originated or conceived during the Term but are completed or reduced to practice thereafter (“Work Product”) are and shall remain the sole and exclusive property of IKONA. Any software program that (1) is derivative of or interfacing with the source code of any software owned by IKONA; (2) emulates or performs substantially the same functions as any software owned by IKONA or any source code of any of such software; or (3) results from the merger of the source code of any of IKONA or any software owned by IKONA with other software, including any copies, modifications, or enhancements thereof (“Modifications”), whether developed singly or jointly by You, IKONA, their employees or third parties hired by either or both will be and remain the property of IKONA regardless of whether You pay for such Modifications and You shall be due no compensation therefor. Any and all rights, title, and ownership interests that You and/or Your employees may have in and to such Modifications or any tangible media embodying such Modifications are hereby assigned to IKONA. All Work Product is not and will not be deemed to be a “work for hire” if consistent with the requirements of U.S. Code, Title 17, Chapter 1, § 101 and are, will be, and remain the exclusive property of IKONA, regardless of whether You pay for same and whether or not deemed to be a “work for hire” within the meaning of U.S. Code, Title 17, Chapter 1, § 101; and any and all rights, title, and ownership interests, including copyright, that You, Your employees, or third parties engaged by You to assist Your use of the Services, may have in and to such Work Product or any tangible media embodying such Work Product are hereby assigned to IKONA, and You and any third party engaged by You shall be due no compensation therefor.
WARRANTIES AND DISCLAIMERS.
THE SERVICE IS PROVIDED "AS IS WHERE IS" WITHOUT ANY WARRANTIES, WHETHER WRITTEN, ORAL, STATUTORY, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IKONA SPECIFICALLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS WAIVER OF WARRANTY AFFECTS YOUR SPECIFIC LEGAL RIGHTS; YOU MAY HAVE RIGHTS WHICH MAY VARY DEPENDING UPON WHERE YOU ARE LOCATED. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE LIMITATIONS ABOVE MAY NOT APPLY TO YOU.
LIMITED WARRANTY. WITH RESPECT TO THE SOFTWARE PRODUCTS, IN THE EVENT OF LOSS OF DATA DUE TO ERRORS OR NEGLIGENCE ON THE PART OF IKONA, IKONA WILL CORRECT PROGRAM ERRORS IN A TIMELY FASHION AT NO ADDITIONAL COST TO YOU, HOWEVER, YOU FIRST MUST PROVIDE IKONA WRITTEN NOTIFICATION OF ANY DEFECTS IN THE SOFTWARE PROGRAM AND ALSO MUST REPRODUCE ANY ALLEGED DEFECT SO THAT IT CAN BE VERIFIED THAT THE DEFECT IS A GENUINE PROGRAM ERROR OR FAULT. IN NO EVENT SHALL IKONA BE LIABLE FOR INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES. IKONA SHALL NOT BE RESPONSIBLE FOR LOSS OF DATA NO MATTER HOW CAUSED AND INCLUDING WITHOUT LIMITATION RESULTING FROM DELAYS, NON-DELIVERIES, MIS-DELIVERIES, SERVICE INTERRUPTIONS, OR OTHER INTERRUPTIONS WHETHER CAUSED BY YOU OR ANY OTHER PERSON OR ENTITY.
Indemnification By IKONA. IKONA SHALL DEFEND YOU AGAINST ANY CLAIM, DEMAND, SUIT, OR CIVIL PROCEEDING, OF ANY KIND WHATSOEVER ("CLAIM") MADE OR BROUGHT AGAINST YOU BY A THIRD PARTY ALLEGING THAT THE USE OF THE SERVICE AS PERMITTED HEREUNDER INFRINGES OR MISAPPROPRIATES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, AND SHALL INDEMNIFY YOU FOR ANY DAMAGES FINALLY AWARDED AGAINST YOU, AND FOR REASONABLE OUT-OF-POCKET LEGAL FEES INCURRED BY YOU IN CONNECTION WITH ANY SUCH CLAIM; PROVIDED, THAT YOU (I) PROMPTLY GIVE IKONA WRITTEN NOTICE OF THE CLAIM; (II) GIVE IKONA SOLE CONTROL OF THE DEFENSE AND SETTLEMENT OF THE CLAIM (PROVIDED THAT IKONA MAY NOT SETTLE ANY CLAIM UNLESS THE SETTLEMENT UNCONDITIONALLY RELEASES YOU OF ALL LIABILITY); AND (III) PROVIDE TO IKONA ALL REASONABLE ASSISTANCE AT YOUR EXPENSE.
Limitation of IKONA’s Indemnity. IKONA SHALL HAVE NO OBLIGATION OR LIABILITY WITH RESPECT TO THE EXTENT ANY CLAIM IS BASED UPON: (I) ANY SOFTWARE OR SERVICES THAT HAVE BEEN ALTERED, MODIFIED, OR REVISED BY YOU; (II) THE COMBINATION, OPERATION, OR USE, AS PERFORMED, INSTRUCTED OR REQUIRED BY YOU, OF THE SERVICES WITH OTHER SOFTWARE OR SERVICES WHEN SUCH COMBINATION IS PART OF ANY ALLEGEDLY INFRINGING SUBJECT MATTER; (III) ACTIONS OR INACTIONS BY YOU OR YOUR AGENTS; (IV) FAILURE BY YOU TO IMPLEMENT ANY UPDATE PROVIDED BY IKONA THAT WOULD HAVE PREVENTED THE CLAIM; OR (V) UNAUTHORIZED USE OF SOFTWARE OR SERVICES, INCLUDING, WITHOUT LIMITATION, IN A BREACH OF THE PROVISIONS OF THIS AGREEMENT.
Indemnification By You. YOU SHALL PROMPTLY DEFEND, HOLD HARMLESS, AND INDEMNIFY IKONA (I) AGAINST ANY CLAIM MADE OR BROUGHT AGAINST IKONA BY A THIRD PARTY TO THE EXTENT CAUSED BY YOU OR YOUR END USER, (II) FOR ANY LOST OR DAMAGED Bundle, (III) FOR ANY CLAIM BASED UPON THE ACTIONS DESCRIBED IN SUBSECTION (b) ABOVE.
Limitation on IKONA liability. IKONA’S LIABILITY UNDER THIS SECTION 9 SHALL BE SUBJECT TO AND LIMITED BY THE PROVISIONS IN SECTION 10 BELOW.
LIMITATION OF LIABILITY.
Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL IKONA'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED AN AMOUNT EQUAL TO ONE-TWELFTH (1/12) OF THE TOTAL AMOUNT PAID BY YOU HEREUNDER TO IKONA IN THE TWELVE (12) CONSECUTIVE MONTHS PRECEDING THE INCIDENT CAUSING THE CLAIM. THE FOREGOING SHALL NOT LIMIT THE PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT FOR SERVICE).
Exclusion of Certain Damages. IN NO EVENT SHALL IKONA HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT IKONA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Notice. All notices which may be given under this Agreement shall be delivered (i) by email to IKONA at solutions@IKONA.health or (ii) to You at the contact information contained in Your Services Agreement. Notices to You, including billing-related notices shall be addressed to the Contact designated by You in the Services Agreement. Either party shall give notice of a change of address, contact information, or contact person to the other party.
Governing Law and Jurisdiction. This Agreement shall be governed by, and be construed in accordance with, the laws of the State of New York. The parties consent to the exclusive venue and jurisdiction of the federal and state courts sitting in New York, New York, for any action commenced relating to this Agreement or the transactions contemplated hereby. The parties waive any objection to such venue based on forum non conveniens.
Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Export Compliance. Each party shall comply with the export laws and regulations of Canada and the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, (i) each party represents that it is not named on any Canadian or U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit End Users to access or use the Service in violation of any Canadian or U.S. export embargo, prohibition or restriction.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
Waiver and Cumulative Remedies: No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Legal Fees. You shall pay on demand all of IKONA's reasonable legal fees and other costs incurred by IKONA to collect any fees or charges due to IKONA under this Agreement following any breach by You of this Agreement.
Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of IKONA. Any such attempted assignment is void and of no effect.
Entire Agreement. These Service Terms and Conditions together with all applicable Services Agreements constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of these Service Terms and Conditions and any applicable Services Agreement, the terms of such Services Agreement shall prevail.
SURVIVING PROVISIONS. Section 4 (Fees and Payment), Section 7 (Proprietary Rights), Section 8 (Warranties and Disclaimer), Section 9 (Indemnification), Section 10 (Limitation of Liability), and Section 11 (General Terms) of this Agreement shall survive any termination or expiration of this Agreement.
END OF THE AGREEMENT