SaaS Software as a Service Use Agreement
IMPORTANT – READ CAREFULLY: THIS SOFTWARE AS A SERVICE USE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND ANY COMPANY YOU REPRESENT (“SAAS CUSTOMER” AND COLLECTIVELY, “YOU” AND “YOUR”) AND STRATA MIXED REALITY INC. (“STRATA”).
THIS AGREEMENT APPLIES TO (1) ALL STRATA SOFTWARE AS A SERVICE (SAAS) SOLUTIONS (INCLUDING BUT NOT LIMITED TO WEBSITES, WEB-CONNECTED AUGMENTED REALITY SOFTWARE AND 3D GRAPHICS SOFTWARE) AND (2) ANY OTHER RELATED SERVICES THAT STRATA MAY PROVIDE TO YOU IN CONNECTION WITH SUCH SAAS SOLUTIONS.
PLEASE READ THE AGREEMENT CAREFULLY BEFORE CONTINUING YOUR REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON, SIGNING (EXECUTED IN ONE OR MORE COUNTERPARTS), OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE, PRINTED ORDER FORM REFERENCING THIS AGREEMENT, OR OTHER PRINTED OR ELECTRONIC FORM, YOU AND ANY COMPANY YOU REPRESENT AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CHOOSE THE “CANCEL” BUTTON AND YOU SHALL NOT BE PERMITTED TO USE THE STRATA SERVICE.
Article I. Definitions
For purposes of this Agreement, the definitions set forth below apply:
“Authorized User” means any of Your employees, consultants, contractors or agents authorized by Your administrator to access and use the Strata Service on behalf of Your business, in each case subject to such person’s agreement to be bound by the terms of this Agreement.
“Front End Code” means our user interface display and usability platform. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.
“Strata Materials” means any documentation, user guides and/or other similar materials, and images, animations, videos and/or 3D models provided by Strata to You in connection with Your use of the Strata Service.
“Strata Service” means any of the Strata set of SaaS solutions that are developed, operated, and maintained by Strata (and its third party service providers) and that are licensed through a Strata branded or controlled website (or Strata partner website) that includes a link to this Agreement. The definition of Strata Service does not include any separate professional Services (as defined below) that may be purchased by You from Strata.
“Order Form” means any online or written order form for the Strata Service, or for Services, submitted by You either during an online order process (via a Strata website or affiliated website, or via email or pdf), or separately signed by You and submitted to Strata, and any future purchase order or order form that makes reference to this Agreement.
“PHI” means (i) “protected health information” as defined in 45 CFR § 160.103, and (ii) any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time (“HIPAA“), including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH ACT“).
“Services” means any implementation, training or other professional services provided by Strata to You pursuant to the terms of an Order Form.
“Service Term” means the use term for the Strata Service set forth on Your Order Form and any additional renewals of such term.
“Third Party Content” means the content, including software code, that a Strata partner or other third party may bundle with the Strata Service, for a specific market or niche offering.
“Your Data” means registration information, information concerning Your Authorized Users and customers and contacts, business, marketing and financial information, images, animations, videos, 3D models and any similar data that You upload to the Strata Service.
Additional terms and definitions that apply to this Agreement for users of the Strata AR Platform can be found at the end of this Agreement in Exhibit A.
Article II. Use Rights and Restrictions
2.1 Use Rights; Restrictions. Subject to the terms of this Agreement, Strata grants to You during the Service Term the non-transferable (except as permitted below), non-exclusive right to permit Your Authorized Users to access and use the Strata Service (and any Strata Materials provided to You) to allow You to perform 3D modeling, augmented reality content creation and display, content and tracker association, and other related creative and/or business functions that the Strata Service is designed to perform, subject to the following restrictions: (i) Your use of the Strata Service may not include use by third parties unless a separate agreement between You and Strata permits use of the Strata Service on behalf of Your clients (and in such case limited to use on behalf of clients for whom You have purchased access and use rights); (ii) except as expressly permitted herein or in a separate partner agreement between You and Strata, You may not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource otherwise commercially exploit or make the Strata Service or the Strata Materials available to any third party; (iii) You may not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Strata Service or Strata Materials (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law), or access or use the Strata Service or Strata Materials in order to build a similar or competitive product or service; (iv) Your use of the Strata Service (in terms of number of Authorized Users, maximum list sizes, monthly view limitations, etc.) shall conform with the restrictions set forth in the Order Form and any applicable current Services Pricing Schedule for the level of service purchased by You (Strata may monitor Your compliance with these limits and if it detects overuse require that You upgrade to the appropriate higher service level, or pay appropriate overage charges, some limits are outlined in Exhibit A below); (v) Your use of the Strata Service must not cause undue strain or stress on the Strata network through excessive API calls or other non-standard and/or excessive use. All products and services provided by Strata may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any United States Federal, State or local laws is strictly prohibited.
2.2 Technical Support. During the Service Term, You will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard technical support resources (collectively, “Technical Support”) for the Strata Service offered by Strata from time to time, the terms of conditions of which may be described and updated from time to time on the support or customer care sections of the relevant Strata website. Strata reserves the right to modify the posted terms and conditions for Technical Support, at any time at its sole discretion.
2.3 Intellectual Property Rights. Strata shall retain all right, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in and to the Strata Service and Strata Materials (including application development, business and technical methodologies, and implementation and business processes, used by Strata to develop or provide the Strata Service or Strata Materials), and any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes relating to any of the foregoing. Except for the limited access and use rights granted pursuant to this Agreement, You do not acquire any interest in the Strata Service or Strata Materials. You agree that any suggestions, enhancement requests, feedback, recommendations or other information provided by You or any of Your Authorized Users relating to the Strata Service or the Strata Materials may be used by Strata without restriction or obligation to You.
2.4 Additional Restrictions. You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of Your authorized use of the Strata Service. Any replication or use of any aspect of the Front End Code or other Strata application or Services for any purpose designed or intended to compete with Strata’s solutions is strictly prohibited.
2.5 Ownership of Your Data. As between You and Strata, Your Data and any similar data provided to Strata outside of the uploading process (either in hard copy or electronic format) is and shall remain Your property. To enable Strata to provide You with the Strata Service, and subject to the terms and conditions of this Agreement, You hereby grant to Strata a non-exclusive right to use, copy, distribute and display Your Data solely in connection with Strata’s operation of the Strata Service on Your behalf. You, not Strata, shall have sole responsibility for the accuracy, integrity, and reliability of Your Data, and Strata will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data. Strata will protect any of Your Data provided to Strata as confidential in accordance with Article IV below.
2.6 Protection of PHI. You agree to submit a request in writing to Strata if you would like to use the Services to store or process PHI. Strata may, at Strata’s option, agree to allow Your use of the Services to store or process PHI. You understand that prior to such use to store or process PHI Strata may require you to enter into an additional, separate agreement from this Agreement. Strata retains the right to refuse any use to store or process PHI on the Strata Services.
Article III. Fees
3.1 Fees. The fees for the Strata Service and any additional Services (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Agreement. You agree to provide Strata with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or You otherwise provide Strata with credit card information, You authorize Strata to bill such credit card (a) at the time that You order the Strata Service or other Services set forth in the Order Form, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Service Term. If Strata, in its discretion, permits You to make payment using a method other than a credit card, Strata will invoice You at the time of the initial Order Form and thereafter on a monthly basis in advance of the relevant billing period, and all such amounts invoiced will be due within ten (10) days of Your receipt of Strata’s invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less.
3.2 Taxes. You shall pay all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on Strata’s net income) arising from the transactions described in this Agreement, even if such amounts are not listed on an Order Form. To the extent You are exempt from sales or other taxes, You agree to provide Strata, upon request, with the appropriate exemption certificate.
3.3 Non-Payment; Other Suspension Rights. Strata may terminate the Strata Service if the billing or contact information provided by You is false or fraudulent. Strata also reserves the right, in its discretion, to suspend Your access and/or use of the Strata Service: (i) where any payment is due but unpaid and You have been requested but failed to promptly cure such payment failure; or (ii) in the event a dispute arises on Your account as to who at Your business has authority to act or manage Your account and Strata is not promptly provided with written instructions from the interested parties associated with Your account that fully resolves the dispute. You acknowledge and agree that it a dispute arises as to management of Your account, then (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, Strata may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of Your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, Strata may assume that the person or entity that has been making payments on Your account has the authority to manage the account. You agree that Strata shall not be liable to You nor to any third party for any suspension of the Strata Service resulting from Your non-payment of Fees or from a dispute as to the management rights to Your account.
Article IV. Confidentiality; Use of Names
4.1 Confidential Information. For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, the Strata Service and the Strata Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Strata will restrict its employees’ access to Your Confidential Information to only those employees necessary to successfully provide the Strata Service. Strata may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Strata in connection with the performance of this Agreement. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
4.2 Credit Card Information. Strata agrees that it will retain and store any provided credit card information only for the minimum amount of time required for business, legal and/or regulatory purposes, and will use standard industry practices to protect such information from unauthorized access, disclosure or use.
4.3 Use of Names in Marketing. You may use Strata’s name and credentials in an appropriate and acceptable manner for Your standard marketing promotions, provided that You agree to cease or alter such use at Strata’s request where such use is contrary to Strata’s branding policies, could cause any brand confusion in the market or is otherwise objectionable to Strata. Similarly, Strata may use Your business name in an appropriate and acceptable manner for standard marketing promotions, provided that Strata agrees to cease or alter such use at Your request where such use is contrary to Your branding policies, could cause any brand confusion in the market or is otherwise objectionable to You. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion, etc. Separately, You may be requested by Strata to allow Strata to use one or more of your projects for similar promotions as described above. You are free to refuse such use.
Article V. Term & Termination
5.1 Standard Term. Unless a different Term is specified in a signed Order Form between You and Strata, the Initial Term of Your Strata Service will begin on the submission or execution of Your Order Form and shall continue on a month-to-month basis until the service is terminated as provided for in this Article 5. The term of this Agreement will automatically terminate when all active Service Terms have been terminated.
5.2 Termination without Cause. Either party may terminate the Service Term to a Strata Service by providing thirty (30) days’ prior written notice to the other party. Strata’s termination rights are in addition to any suspension rights it may have under this Agreement.
5.3 Questionable Practices (“Inappropriate Use”) Termination. Strata may terminate Your account if You engage in any practice that is, in Strata’s sole discretion, objectionable, unlawful, obscene, pornographic, threatening, abusive, libelous or hateful, or that encourages conduct which would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law. This includes, but is not limited to:
- content that in any way exploits minors under 18 years of age
- viruses, worms, phishing, malware, or any other potentially harmful software
- marketing to any lists of associations, memberships, voters or realtors, or any other lists whose recipients did not express explicit consent to receive such marketing material
- products, services, or content that are often associated with abusive business practices or spam, such as:
- pornography or illicitly pornographic sexual products, including but not limited to adult magazines, video and software, escort services, dating services, or adult “swinger” promotions
- illegal drugs, software, media, or other goods
- manufacture, importation, possession, use and/or distribution of marijuana or any other violation of the Controlled Substances Act
- instructions on how to assemble or otherwise make bombs, or other weaponry
- online and direct pharmaceutical sales
- debt collections, credit repair and debt relief offerings
- stock picks or promotions”get rich quick” and other similar offers
Change of Definition of “Inappropriate Use”
Strata reserves the right to change the above definition of Inappropriate Use, as needed. Use of Strata’s software and/or services by You after said changes constitutes Your acceptance of the new definition of Inappropriate Use.
5.4 Effect of Termination. Upon termination of the Service Term, all Fees then due and payable to Strata must be paid in full. Contingent upon its receipt of all such Fees, Strata will continue to make Your Data available for use through the termination date. In addition, for a period of thirty (30) days following termination, You may arrange for the downloading of Your Data by contacting Strata. Following this (30) day grace period, Strata may remove Your Data from the production environment for the Strata Service. The provisions of this Agreement which by their nature are intended to survive expiration or termination shall survive, including but not limited to obligations concerning confidentiality, protection of intellectual property, indemnification and payment of unpaid Fees and expenses.
Article VI. Warranties/limitation of Liability/indemnity
6.1 Limited Warranties. Strata warrants for a period of thirty (30) days following their delivery that all professional Services (as defined in Article I above) provided hereunder will be performed in a workmanlike manner, in conformity with the professional standards for comparable services in the industry. For any breach of this warranty timely reported by You, Your exclusive remedy shall be the re-performance of the deficient professional Services, and if Strata is unable to re-perform the deficient professional Services as warranted, You shall be entitled to recover the portion of the Fees paid to Strata for such deficient professional Services, and such refund shall be Strata’s entire liability. You warrant that Your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations, as well as the Strata Acceptable Use Policy, in connection with Your use of the Strata Service, and You agree to indemnify and hold Strata and its subsidiaries, affiliates, officers, directors, shareholders, agents, licensors, licensees, suppliers, alliance members, other partners, employees and representatives (“Strata Parties”) harmless from and against any claim, demand, loss, or damages, including any third party or government claims, and any related costs and expenses (including reasonable attorneys’ fees), arising out of or related to your content, your use of the Strata Service or Software, or your violation of these terms.
Strata will not be liable for any interruptions in service or other monetary loss related to enforcement of the Strata Terms of Service (TOS).
Any and all third party hardware included or sold with the Services are provided solely according to the warranty and other terms specified by the manufacturer, who is solely responsible for service and support for its product. For service, support, or warranty assistance, you should contact the manufacturer directly. STRATA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH THIRD PARTY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL STRATA BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES ARISING OUT OF YOUR USE OF OR INABILITY TO USE THIRD PARTY PRODUCTS OR ANY AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU FOR THE PRODUCT THAT GIVES RISE TO ANY CLAIM.
6.2 Strata Not Responsible for Third Party Content. The Strata Service may be bundled by third parties (including but not limited to Strata marketing or content partners) with Third Party Content designed to facilitate use of the Strata Service in certain market niches or to customize the Strata Service for use by certain categories of target customers. To the extent that You either purchase the Strata Service from such third parties or acquire the Third Party Content or configuration services from such third parties (even though you may purchase the core Strata Service directly from Strata), Strata does not warrant in any manner and will not be responsible for such Third Party Content and You agree to look solely to the relevant third party provider (and not Strata) if and to the extent that you have any complaints or issues relating to the Third Party Content or its interaction with a Strata Service.
6.3 Warranty Disclaimers. The Strata Services and Software are provided “AS-IS.” To the maximum extent permitted by law, Strata disclaims all warranties express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. Strata makes no commitments about the content within the Services and Strata Services. Strata further disclaims any warranty that (a) the Services, Strata Services or Software will meet Your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (b) the results that may be obtained from the use of the Services, Strata Services or Software will be effective, accurate, or reliable; (c) the quality of the Services, Strata Services or Software will meet Your expectations; or that (d) any errors or defects in the Services, Strata Services or Software will be corrected.
EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE THAT STRATA SPECIFICALLY DISCLAIMS ALL WARRANTIES RELATING TO THE STRATA SERVICE.
6.4 Limitation of Liability. Strata specifically disclaims any liability for any actions resulting from Your use of any Services, Strata Services or Software. You may use and access the Services, Strata Services or Software at Your own discretion and risk, and You are solely responsible for any damage to Your computer system or loss of data that results from the use and access of any Services, Strata Services or Software.
Strata is not liable to You or anyone else for: (a) any loss of use, data, goodwill, or profits, whether or not foreseeable; and (b) any special, incidental, indirect, consequential, or punitive damages whatsoever (even if Strata has been advised of the possibility of these damages), including those (i) resulting from loss of use, data, or profits, whether or not foreseeable, (ii) based on any theory of liability, including breach of contract or warranty, negligence or other tortious action, or (iii) arising from any other claim arising out of or in connection with Your use of or access to the Services, Strata Services or Software.
IN NO EVENT WILL STRATA BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY. IN ADDITION, IN NO EVENT WILL STRATA’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO STRATA DURING THE TWO MONTH PERIOD PRECEDING THE ALLEGED LIABILITY EVENT.
Article VII. General Provisions
7.1 Notice. Notices regarding this Agreement to Strata shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to Strata, Attn. Contracts Administrator, 3013 Santa Clara Drive, Santa Clara, Utah 84766 (or the then official corporate address for Strata). Strata may give notice applicable to Strata’s general customer base by means of a general notice on the Strata Service portal, and notices specific to You by electronic mail to Your designated contact’s email address on record with Strata, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to Your address on record in Strata’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile, email or posting to the Strata Service portal.
7.2 Assignment. You may not assign this Agreement without providing prior notice to and obtaining the consent of Strata, which shall not be unreasonably denied provided Your account is in good standing. Any purported assignment in violation of this Section shall be void. Strata may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition, joint venture, or other transfer of all or substantially all of Strata’s assets or voting securities.
7.3 Integration; Modification. This Agreement and the information incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy), together with any applicable Order Form, represent the parties’ entire understanding relating to the Strata Service, the Strata Materials and the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The terms and conditions of this Agreement may only be amended by written agreement of the parties. If You are a party to the Strata Partner Program Agreement or similar program (by written agreement with Strata), any conflicting terms of such agreement shall supersede this Agreement.
7.4 Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of Utah without giving effect to conflict of laws principles. Any and all disputes, controversies and claims arising out of or relating to this Agreement or concerning the respective rights or obligations of the parties hereto shall be settled and determined by arbitration before a panel of one (1) arbitrator in Washington County, Utah (or such county in Utah as Strata shall select), pursuant to the Commercial Rules of the American Arbitration Association then in effect. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrator shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to the prevailing party.
7.5 Force Majeure. Except for Your obligation to pay Fees for the Strata Service or other Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, shortage of materials, failure or interruption or termination of a necessary third party service, acts of terrorism, or the stability or availability of the Internet or a portion thereof.
7.6 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the Strata Service, including Strata technology. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the Strata Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
7.7 Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
7.8 Relationship of Parties. No joint venture, partnership, employment, or agency relationship exists between Strata and You as a result of this Agreement or use of the Strata Service.
7.9 Waiver. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
7.10 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.
7.11 Government End Use. If You are an agency or unit of the U.S. Government (“Government”), the Strata Service is provided for ultimate Government use solely in accordance with the provisions of the Federal Acquisition Regulation (“FAR”) and supplements thereto, including the Department of Defense (“DoD”) FAR Supplement (“DFARS”), set forth in this Section. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR §12.211 (Technical Data) and FAR §12.212 (Computer Software) and, for DoD transactions, DFARS § 252.227-7015 (Technical Data – Commercial Items) and DFARS § 252.227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If the Government has a need for rights not conveyed under these terms, it must negotiate with Strata to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
7.12 Headings. The headings contained in this Agreement are for convenience only and shall not affect the interpretation or meaning of this Agreement.
Strata AR Platform Additional Terms and Definitions
1. Strata Mixed Reality Inc. may be referenced in this Exhibit as “Strata”
2. You may be referenced in this Exhibit as “Client”
3. Strata has developed and assembled a combination of cloud based augmented reality (“AR”) software-as-a-service platform (“AR SaaS Platform”).
4. AR Template Apps. Strata has created template applications running on Apple’s iOS platform and Google’s Android platform. These “AR Template Apps” demonstrate the functionality of the Strata AR Platform, and serve as the basis for the Client Apps.
5. Strata AR Apps. Any app based on the AR Template Apps may be referenced herein as “Strata AR Apps”.
6. Client Apps. As a paid licensor of the Strata AR Platform, Strata shall provide to Client versions of the AR Template Apps that include Client’s branding. These “Client Apps” shall be submitted to the Apple App Store and the Google Play Store for inclusion on those services.
7. Strata AR Platform. The AR Template Apps are able to communicate with the AR SaaS Platform, combining to create Strata’s AR solution, the “Strata AR Platform”. “Strata AR Platform” refers to the then-current version made available to Client by Strata and also includes supporting product help and technical specifications documentation provided by Strata to its customers for the Strata AR Platform (“Documentation”). The determination of what is included in, and excluded from, the Strata AR Platform shall be made at the sole discretion of Strata. Client may consult with Strata to make suggestions for additions and changes to the Strata AR Platform
8. App Setup Fee. Each app requires substantial time and effort by Strata. This includes customizing the Template App for the desired branding, submitting the apps to the appropriate app store, managing app store revisions required by Apple and/or Google, etc. The “Setup Fee” covers setup of both an iOS and Android app.
9. Monthly Fee. The Strata AR Platform requires continual maintenance and improvement, which requires new builds and new submissions to the appropriate app store, updates to the web platform, etc. Each “ Monthly Fee” covers this monthly maintenance.
10. AR Trigger. An “AR Trigger” can be an image or object that the Strata AR Apps recognize to initialize an AR experience. AR Triggers are uploaded to the AR SaaS Platform by Client.
11. Total AR Trigger Allocation. Client is allowed to upload and maintain a limited number of AR Triggers in Client’s licensed copy of the AR SaaS Platform, the “Total AR Trigger Allocation”.
12. AR Trigger View. An “AR Trigger View” occurs when a Client App recognizes an AR Trigger.
13. Monthly AR Trigger View Allocation. Each Client App is allocated a specific number of AR Trigger Views, referenced herein as the “Monthly AR Trigger View Allocation”.
14. Trigger View Overage Pricing. When the Monthly AR Trigger View Allocation is exceeded by Client’s licensed AR SaaS Platform for any given month (“Trigger View Overage”), Client will be charged an additional fee for each AR Trigger View that exceeds the Monthly AR Trigger View Allocation.
15. Pricing and Allocation Changes. Strata reserves the right to modify App Monthly Fee pricing, Trigger View Overage Pricing, Additional Service pricing, and to modify the Total AR Trigger Allocation, at its discretion. Client will be notified of price and allocation changes 30 days in advance of implementation of new pricing.
16. Additional Service. Strata may do additional service work for Client. Examples include:
(a) 3D Model work. Client may desire to have 3D models added to Client’s Apps, along with the licensed version of the Strata AR SaaS Platform for use with those apps. Models often need adjustments prior to being ready for use in AR. The cost for this work by Strata is $150 an hour, with a $150 minimum charge per model.
(b) Video work. Client may desire to have custom video added to Client’s Apps, along with the licensed version of the Strata AR SaaS Platform for use with those apps (for example, videos with alpha channel added for “hologram effect”. The cost for this work by Strata is $150 an hour, with a $300 minimum charge per video.
(c) Application Features. Client may make requests for additional features that go beyond the AR Template Apps. Pricing for additional features shall be determined upon request.
17. Strata AR Platform Cancellation. For cancellation of licensed Strata AR Platform and related services, please contact email@example.com.
18. Strata AR Platform Overages and Limits. Unless otherwise stated in Your Order Form, the Total AR Trigger Allocation is set to 100, the Monthly AR Trigger View Allocation is set to 1,000, and the Trigger View Overage Pricing is set to $0.05.