Realwear Collaborate App
Terms & Conditions
These Terms and Conditions were last updated on: October 10th, 2024.
These Terms and Conditions govern Your use of the RealWear Collaborate App and include these Terms and Conditions, the Data Processing Agreement located at the following link: https://www.realwear.com/legal/data-processing-addendum, and RealWear’s privacy policy located at the following link: https://realwear.com/legal/collaborate-privacy-policy, and are the only agreements between You and the Company (hereinafter collectively the “Terms”).
THESE TERMS TAKE EFFECT WHEN YOU ACCESS THE APP.
The Service and the DPA sets forth the obligations for data processing activities performed with the Service. You agree that the DPA governs the processing and security of all personal data which is stored and processed through the Service. If You as data controller require any further action to protect personal data, You must contact REALWEAR to agree on additional actions. All such actions must be agreed in writing as a supplement to the DPA before REALWEAR can submit and adhere to such actions.
Please read through the Terms. You represent to us that you are lawfully able to enter into the Terms, and if you are entering into these Terms on behalf of a company or other legal entity, You represent that You have the authority to bind such entity to these Terms. If You do not have such authority, or if You do not agree with the Terms, you must not accept the Terms, and You may not use the Service.
1. DEFINITIONS
1.1 For the purposes of these Terms, the following capitalized terms have the respective meanings set forth below; terms in the plural shall also include the singular and vice versa:
“Application” or “App” means the software program provided by the Company downloaded by You on any electronic Device, named RealWear Collaborate App.
“Affiliate” means an entity that controls, is controlled by or is under common control with a party, where "control" means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
“Account” means a unique account created for You to access our Service or parts of Our Service.
“Company” (referred to as either "the Company", ‘REALWEAR”, "We", "Us", or "Our" in this Agreement) refers to RealWear, Inc. and its employees, officers and contractors.
“Customer” means You.
“Device” means any device that can access the Service such as a computer, a cell phone or any form of digital or wearable tablet.
“DPA” means the Data Protection Agreement located at: https://www.realwear.com/legal/rwc-data-processing-addendum/.
“Feedback” means feedback either verbally or in writing, including but not limited to feedback related to design, form, function features, innovations or suggestions sent by You regarding the attributes, performance or features of our Service or any Company product.
“License” means a right to access the Application.
“Party” means RealWear, Inc. or You individually, and collectively the “Parties”.
“Privacy Policy” means RealWear’s privacy policy located at:
https://realwear.com/legal/collaborate-privacy-policy
“Service” refers to the Application.
“Terms and Conditions” or "Terms" mean these Terms and Conditions, the DPA and the Privacy Policy that form the entire agreement between You and the Company regarding the use of the Service.
“User” means You or any other person accessing and using the Application.
“Third-Party Solutions” means third party software which is not integrated into the Service including, but not limited to, software solutions promoted by REALWEAR for payment services, or third party platform services applied for usage of the Service.
“You” means the individual accessing or using the Service, or the company, or other legal entity on behalf of which such individual is accessing or using the Service, as applicable.
2. THE SERVICE AND LICENCES
2.1 The Service
2.1.1 REALWEAR makes the Service available to the Customer pursuant to these Terms. The Service is offered as a free Service; however, REALWEAR, in its sole discretion and determination, reserves the right to offer the Service for a fee at a later date upon prior written notice.
2.1.2 Customer, in its sole discretion, may grant access to any User, r.
2.1.3 The Service is offered as a standard generic application and is not contingent on the delivery of any future functionality or feature.
2.1.4 REALWEAR will provide updates and upgrades at its discretion.
2.2 Customer’s Licenses with Right of Use
2.2.1 REALWEAR hereby grants to the Customer, subject to the restrictions in Section 3 below, a non-exclusive, non-sub licensable, non-transferable License, limited in scope, right to use to the Service according to the Terms.
2.2.2 Customer’s License and right to use the Service will take effect on the date the Customer accesses the Service, and these Terms and such right to use the Service by the Customer, shall apply until terminated in accordance with the Terms.
2.2.3 The Customer may grant access to the Service to any number of Users in Customer’s sole discretion. The Customer is responsible for the administration of Users and for the Users´ use of the Service.
2.2.4 The Customer is responsible for all activities that occur on the Application. The Customer shall (a) ensure that the Service is used only in accordance with these Terms, (b) prevent unauthorized access or use including, but not limited to, safeguarding Your password, and (c) prevent the Customer and/or its Users from using the Service in a manner which could in any way harm REALWEAR's name, reputation, or goodwill, or which violates applicable laws or regulations.
3. RESTRICTIONS
3.1 No Assignment, Selling, Sub-licensing, Rental, Lending or Leasing
3.1.1 The License to the Service is non-transferable and the Customer may not assign, sell, sub-license, rent, lease or lend the License. This prohibition on transfer of Licenses does not limit the Customer’s rights to invite Users or change Users in accordance with Section 2.2 above.
3.1.2 Notwithstanding the above, either Party may assign these Terms without consent to an Affiliate or to a successor to all or substantially all of the business or assets to which these Terms relate, whether by sale of stock, sale of assets, merger, reorganization or otherwise. Any assignments or transfers in violation of this Section 3.1 are void.
3.2 No Copying
The Customer is not allowed to make any copies of the Service or its features and functions, except to the extent expressly permitted by applicable law. Similarly, the Customer may not publish, distribute or otherwise make the Service available for others to copy.
3.3 Limitations on Reverse Engineering, De-compilation, and Disassembly
Customer may not: i) amend, improve, modify or further develop the Service or any part hereof, ii) implement the Service or any part thereof into other software, platforms or solutions, iii) create derivative works based on the Service or any features or functions therein, iv) make or perform any form of reverse engineering, decompiling or disassembly of the Service, vi) or other steps to obtain the purposes as comprised by i) – iv), including by allowing third parties to perform steps as comprised by i) – iv).
3.4 Security
Customer may not use the Service to violate, tamper with, or circumvent the security of any computer network, software, passwords, encryption codes, technological protection measures, or to otherwise engage in any kind of illegal activity, or to enable others to do so, is expressly prohibited and shall not permit any user to upload or otherwise transmit data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another.
4. TERMINATION
4.1 Termination for Convenience
4.1.1 REALWEAR may terminate this Agreement for convenience and without cause by giving the Customer written notice.
4.2 Termination Upon Customer’s Breach
4.2.1 In the event that the Customer is in breach of any term, condition or provision of these Terms or in case of the Customer’s insolvency or bankruptcy, REALWEAR may, at its discretion, terminate these Terms or suspend or reduce the scope of the Service without any notice.
4.3 Consequences of Termination
4.3.1 Upon termination of these Terms, for whatever reason, the Customer shall discontinue any and all use of the Service immediately.
5. THE CUSTOMER’S DATA AND CUSTOMER’S WARRANTY
5.1 The Customer shall own all data uploaded by the Customer. REALWEAR shall perform its duties as data processor in accordance with the DPA.
5.2 The Customer shall be responsible for the accuracy, quality and legality of the Customer’s data and the means by which the data is acquired. Customer represents, covenants, and warrants that Customer will use the Service only in compliance with the terms of this Agreement, REALWEAR’s standard published policies then in effect, and all applicable laws and regulations. Customer is solely responsible for all data, information, text and content transmitted or stored by or on behalf of Customer in connection with or relating to the Service, and represents, covenants and warrants that it has all rights necessary to permit REALWEAR to use such data, information, text, content and other materials as set forth herein.
5.3 Customer assigns all rights, title and interest in any Feedback You provide the Company. If for any reason such assignment is ineffective, You agree to grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, display, disclose, sub-license, distribute, modify, create derivative works of, store, use and incorporate into the Service without any suggestions, recommendations or other feedback provided by You to Company with respect to the Service, and permit Us to otherwise use and exploit such Feedback without restriction.
6. CONFIDENTIALITY
REALWEAR shall treat the Customer’s content as Customer’s Confidential Information and, for personal data, comply with the confidentiality provisions in the DPA. REALWEAR may afford its employees and/or agents, who are bound by confidentiality provisions, access to the extent required by them for the performance of REALWEAR’s duties under the Terms and in order to provide the Services. The Confidential Information shall not include any information which (a) is in or enters the public domain other than by a breach of this Agreement; (b) was known to REALWEAR prior to the disclosure; or (c) is legally transmitted or disclosed by a third party who owes no obligation of confidentiality to the Customer. REALWEAR shall have the right to access and to disclose the data on the Application to the extent such disclosure is required under statutory requirements or orders from the courts or public authorities; provided REALWEAR shall give notice to the Customer before disclosing the information, unless prohibited under applicable regulation or the court order.
7. CHANGES
REALWEAR reserves the right, at Our sole discretion, to modify or replace these Terms at any time, if a revision is material, we will make reasonable efforts to provide at least 30 days' notice prior to any new terms taking effect. What constitutes a material change will be determined at Our sole discretion.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 REALWEAR reserves all right, title and interest in and to the Service and all associated intellectual property rights, including full copyright in and to the Service, except for third party components, if applicable. Customized created software as it relates to the Service also belongs to REALWEAR, unless otherwise agreed to in writing by the Parties.
8.2 Except for the limited license rights expressly granted under these Terms, the Customer is not granted any other rights in the Service. The Customer shall notify REALWEAR of any current or potential violation of REALWEAR's intellectual property rights or unauthorized use of the Service of which the Customer becomes aware.
8.3 The Customer gives REALWEAR and its suppliers an authorization and global license to the material and all data uploaded by the Customer sufficient for REALWEAR to properly manage and operate the Service, fulfill its obligations, and promote relevant products to the Customer.
8.4 The Customer guarantees that the material and data being uploaded does not infringe on any third- party rights and does not contain material that may be offensive or violates applicable laws or regulations.
9. SUB-SUPPLIERS
REALWEAR has the right to use or assign its obligations under these Terms to a sub-supplier, including for the completion and operation of the Service, and for storing Customer’s data. For adding new sub-suppliers which may process personal data, the DPA shall apply including Appendix 3 thereto listing the Authorized sub-processors.
10. REALWEAR WARRANTIES, DISCLAIMERS, AND CUSTOMER’S EXCLUSIVE REMEDIES
10.1 REALWEAR makes no representations or warranties related to the Service and its performance.
10.2 THE SERVICE IS OFFERED “AS IS” WITHOUT ANY QUALIFICATIONS, WARRANTIES, OR SUPPORT SERVICES, AND REALWEAR DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. REALWEAR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. REALWEAR DOES NOT WARRANT THAT THE APPLICATION IS ERROR-FREE OR THAT OPERATION OF THE APPLICATION WILL BE SECURE OR UNINTERRUPTED. THE LICENSE SHALL EXCLUDE ALL CUSTOMER RIGHTS OF REMEDIES AND THE LIABILITIES OF REALWEAR SHALL NOT EXCEED USD $100.00.
10.3 REALWEAR DOES NOT WARRANT THE SERVICE AGAINST BREAKDOWNS, ERRORS, MALFUNCTIONS, INTERRUPTIONS, ISSUES AND INTERRUPTIONS RELATED TO THIRD PARTY SOLUTIONS, OR INCIDENTS OF CYBER ATTACK.
11. THIRD-PARTY INFRINGEMENT CLAIMS
11.1 Except for licenses to third party components integrated into the Service, if applicable, REALWEAR does not provide the Customer with any licenses or right of use to third party software, copyrights, patents or other intellectual property rights held by a third party. The Customer must, at the Customer's own expense, license and maintain any such licenses from third parties which are required by the Customer for usage of the Service.
11.2 Provided that REALWEAR complies with the procedures in this Section 11.2, the Customer shall defend REALWEAR against any claims made or brought against REALWEAR by a third party alleging infringement or violation of the third party’s property, privacy or other rights (in this paragraph a “Claim”) caused by use of the Customer data, Customer’s use of the Service in violation of these Terms or arising from Customer’s combination, alterations, or integration of the Service with third party products. Promptly upon receiving notice of a Claim, REALWEAR shall give the Customer a written notice of the Claim and give the Customer sole control of the defense and settlement of the Claim, and REALWEAR shall provide all reasonable assistance in the defense or settlement of such Claim. The Customer shall pay damages, and all reasonable costs, finally awarded against REALWEAR by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by the Customer in connection with such Claims, (provided that the Customer cannot, without REALWEAR’s prior written approval, make any admissions of fact that expose REALWEAR to an imposition of damages or other claims). This Section 11.2 states the Customer’s entire liability and REALWEAR’s exclusive remedy for any claim of intellectual property infringement.
12. LIABILITY, EXCLUSIONS AND LIMITATIONS OF LIABILITY
12.1 EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S INFRINGEMENT OF REALWEAR’S INTELLECTUAL PROPERTY RIGHTS OR (B) CUSTOMER’S BREACH OF SECTION 3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, AND ITS USERS, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE OR PUNITIVE DAMAGES OR LOSS, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, SAVINGS, TIME, DATA OR DAMAGE TO RECORDS OR DATA, OR LOSS AS A CONSEQUENCE OF ANY OTHER KIND OF BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THE USE OF THE SERVICE OR CUSTOMER CARE OR ANY INADEQUATE OR FAULTY PERFORMANCE HEREOF, UNDER ANY THEORY OF RECOVERY, INCLUDING LIABILITY ARISING BY WAY OF INDEMNITY, IN CONTRACT OR IN TORT, PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
12.2 EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S INFRINGEMENT OF REALWEAR’S INTELLECTUAL PROPERTY RIGHTS, (B) CUSTOMER’S BREACH OF SECTION 3, (C) CUSTOMER’S BREACH OF SECTION 4, OR (D) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11, THE MAXIMUM AGGREGATE LIABILITY OF A PARTY TOWARDS THE OTHER PARTY, UPON ANY CLAIMS WHATSOEVER, ARISING OUT OF THE SERVICE OR CUSTOMER CARE UNDER THE LICENSE (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS) REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED $100.00.
12.3 REALWEAR assumes product liability only to the extent that the product liability may not be contractually waived, but disclaims product liability on any other basis. The exclusions and limitations stated in Sections 10.2 and 10.3 shall also apply to any product liability.
12.4 REALWEAR is not responsible for any Third-Party Solutions even if made available with the Service. REALWEAR cannot be held liable for the accuracy, completeness, quality, or reliability of the information nor the results obtained through these Third-Party Solutions. Similarly, REALWEAR cannot be held liable for the availability, security, or functionality of any Third-Party Solutions, including possible damages and/or loss caused by Third-Party Solutions. The burden is upon the Customer to prove that a loss suffered by the Customer cannot be attributed to Third-Party Solutions.
13. APPLICABLE LAW AND VENUE
13.1 These Terms are governed by the laws of the State of Washington, USA and shall be construed and enforced in accordance with these laws, without giving effect to its conflicts-of-laws or choice-of-law rules, and that the rule of construction that provides that a document is construed against the maker thereof be inapplicable in the construction of any of the terms of these Terms.
13.2 Any dispute relating to these Terms ("Dispute") will be resolved through binding arbitration according to the then-current Commercial Arbitration Rules of the American Arbitration Association (the "AAA Rules"). The existence, content (including all documents and materials submitted to the arbitrators), and results of any arbitration shall be deemed Confidential Information. The arbitrator will be a neutral practicing attorney or retired judge with experience in similar cases and appointed in accordance with the AAA Rules. The arbitrator must agree in writing to maintain the confidentiality of the arbitration. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq. The substantially prevailing Party will be entitled to recovery of arbitration expenses (including all costs and reasonable attorney's fees) from the substantially non-prevailing Party. The arbitrator's award will include provisions for this recovery. The arbitrator's award will be binding and final. Any court having jurisdiction may enter judgment upon the award. The arbitration will be conducted in English and held in Vancouver, WA. This Agreement is governed by, and the arbitrator will apply, the substantive laws of the State of Washington excluding its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods expressly will not apply to this Agreement.
13.3 Notwithstanding Section 10 and Sections 12.1 and 13.2, each Party acknowledges that due to the nature of these Terms, any actual or threatened breach of these Terms or unauthorized use of the Service may cause immediate and/or irreparable injury or harm to the other Party and, therefore, a Party shall be entitled to seek injunctive or equitable relief in any jurisdiction to enforce its intellectual property rights.
14. GENERAL PROVISIONS
14.1 The Application, and the technology made available, may be subject to export laws and regulations of the United States and/or other jurisdictions. The Customer represents that neither the Customer nor its Users are named on any denied-persons list under any jurisdiction, and the Customer may not permit Users to access or use, or otherwise make available, whether directly or indirectly, the Service into an embargoed, sanctioned, or otherwise restricted country without first complying with all applicable export control laws and regulation.
14.2 In performing its obligations under these Terms, each Party will comply with all applicable statutes, regulations and government rules relating to anti-bribery and anti-corruption including the United States Foreign Corrupt Practices Act. Neither Party may at any time, directly or indirectly through employees or third parties, pay, offer, give, or promise to pay or give, or authorize the payment of, any monies or any other consideration to influence or seek to influence any governmental official.
14.3 Failure or neglect by REALWEAR to enforce any of the provisions of these Terms at any time shall not be construed nor shall be deemed to be a waiver of REALWEAR's rights under the Terms nor in any way affect the validity of the whole or any part of the Terms nor prejudice REALWEAR's rights to take subsequent action. The Section headings used in these Terms are for reference and convenience only and shall not affect the interpretation of the Terms.
14.4 In the event that any of the provisions of the Terms shall be determined by any court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable to any extent, such provision shall be enforced to the fullest extent permissible and otherwise, modified 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 the Terms shall continue to be valid between the Parties.
14.5 REALWEAR and the Customer are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
14.6 The Terms are solely for the benefit of the Customer and REALWEAR and it is not intended to benefit or be enforceable by any third party. The exercise of a Party’s rights under these terms and conditions is not subject to the consent of any third party.
14.7 Neither Party shall be liable to the other Party for delay or non-performance of its obligation or loss or damages if caused by an event which is unforeseeable, beyond the control of the non-performing party, and cannot be remedied by the exercise of commercially reasonable efforts (“Force Majeure”). Force Majeure shall include, without limitations acts of God, perils of the sea or air, fire, flood, drought, explosion, earthquakes or other catastrophes; strikes or other labor unrest; power failures, global pandemic including but not limited to Covid-19 and variants thereof, electrical power surges or current fluctuations; nuclear or other civil or military emergencies; or acts of legislative, judicial, executive, or administrative authorities; terror, sabotage, cybersecurity attacks, events of computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or any other circumstances that are not within the Party’s possession or reasonable control. The Party affected shall be relieved from its obligations (or part thereof) as long as performance is hindered due to Force Majeure, being understood that Force Majeure shall not excuse any obligation of payment of Subscription Fees. The Party affected shall promptly notify the other Party. Either Party may terminate the Terms if the event of Force Majeure continues for more than forty-five (45) days.
14.8 Except as otherwise limited or excluded herein, all remedies in these Terms shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise, and may be enforced concurrently or from time to time.
14.9 Notices required to be sent by either Party under these Terms shall be sent by electronic email to the address provided by Customer and in the case of any notice to REALWEAR, must be emailed to Attn: Legal Department at legal@realwear.com, or any other address REALWEAR notifies Partner of in writing.
14.10 The Terms and the PO are the entire agreements between REALWEAR and the Customer regarding the Service. In the event of any conflict or inconsistency between the provisions in the Terms and the PO, the terms of the PO shall prevail, however, subject to the recital of the Terms, that the Customer’s standard terms and conditions, or other deviations from the Terms, shall not apply even if attached to the PO.