RealWear Connect Application
Terms and Conditions

The Service and Licenses

2.1 The Service

2.1.1 REALWEAR makes the Service available to the Customer pursuant to these Terms. The Service is purchased on a Subscription basis.  Customer, in its sole discretion, may grant access to any User, provided that Customer has paid REALWEAR the applicable Subscription Fees for access by such User.

2.1.2 The Service is offered as a standard generic application, and the Subscription is not contingent on the delivery of any future functionality or feature. 

2.1.3 REALWEAR will provide updates and upgrades at its discretion.

2.2 Customer’s Licenses with Right of Use

2.2.1 Subject to the Customer's fulfilment of the Customer's obligations under the Terms, including, without limitation, payment of any and all applicable Subscription Fees, 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 and for the duration of the Subscription Period, only for the 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 or the date of the acceptance of the PO, whichever occurs first, 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 Subscription is based on the License. The Customer may grant access to the Service to any number of Users based on the License paid for. 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.

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.

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.

Price and Terms of Payment

4.1 The Subscription Fee for the License to the Service is set forth in the PO.

4.2 The Subscription Fees are pre-paid annually and shall be invoiced prior to the first day of a Subscription Period and 30-days prior to each subsequent one-year anniversary thereafter. Paid Subscription Fees are non-refundable.

4.3 Payment terms for purchases made directly through REALWEAR are due within 30-days of the invoice date. The Parties may agree on other fees and payment terms if stated in the PO, a PO to renew Subscription, or an appendix to the PO. Overdue amounts will be charged at an interest rate of 1.5% per month or the maximum rate permitted by law, if lower, from the date such payment was due until the date paid.  

4.4 Payment terms for purchases made through a REALWEAR authorized reseller or distributor are subject to the terms of the PO and/or agreement between Customer and such REALWEAR authorized reseller or distributor.

Expiry and Termination

5.1 Subscription Period

5.1.1 The Subscription Period is binding upon both REALWEAR and the Customer, meaning the Customer cannot terminate the Service and these Terms during a Subscription Period. Notwithstanding the above, the Customer may terminate the Subscription due to a material breach of Terms by REALWEAR that is not timely cured within the applicable cure period, or if a material change to the Terms occurs that materially negatively impacts Customer’s use of the Service, and if the Customer is not in breach of the Terms, REALWEAR will refund a pro-rata portion of the Subscription Fees for the remaining un-used period of the Service.

5.1.2 The Subscription Fee for the Subscription Period is defined in the PO. 

5.1.3 The initial Subscription Period shall be defined in the PO as accepted by the Customer and shall cover a minimum of 12 months. At the end of the initial term, the Subscription will automatically renew for additional 12-month periods, or longer periods if agreed in a new PO, unless either Party provides the other Party with written notice of non-renewal at least 60 days’ prior to the end of the then-current term. The Subscription Fee will be invoiced upon renewal for pre-payment in accordance with Section 4.2.

5.1.4 The Subscription may also be scaled down by the Customer with a notice of no less than 60 days prior to renewal.

5.2 Termination Upon Customer’s Breach

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.

5.3 Consequences of Termination

Upon termination of these Terms, for whatever reason, the Customer shall discontinue any and all use of the Service immediately.

The Customer's Data and Customer's Warranty

6.1 The Customer shall own all data uploaded by the Customer. REALWEAR shall perform its duties as data processor in accordance with the DPA.

6.2 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.

6.3 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.

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.

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.

Intellectual Property Rights

9.1 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.

9.2 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.

9.3 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.

9.4 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.

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.

REALWEAR WARRANTIES, DISCLAIMERS, AND CUSTOMER’S EXCLUSIVE REMEDIES​

11.1 REALWEAR warrants that the Service will perform materially under normal use and circumstances. The functionality of the Service will not materially decrease during a Subscription Period. 

11.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, REALWEAR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), STATUTORY OR OTHERWISE, AND REALWEAR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. REALWEAR CLOUD IS PROVIDED UNDER A FREE TRIAL AT NO CHARGE AND IS PROVIDED ON AN “AS IS” BASIS, EXCLUSIVE OF ANY WARRANTY OR AVAILABILITY COMMITMENT WHATSOEVER. REALWEAR DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

11.3 REALWEAR DOES NOT WARRANT THE SERVICE AGAINST BREAKDOWNS, ERRORS, MALFUNCTIONS, INTERRUPTIONS, ISSUES AND INTERRUPTIONS RELATED TO THIRD PARTY SOLUTIONS, OR INCIDENTS OF CYBER ATTACK. REALWEAR´S PERFORMANCE OBLIGATIONS TO MAINTAIN OPERATING STABILITY IS SET OUT IN THE SLA.

11.4 REALWEAR shall take commercially reasonable efforts to remedy errors and defaults in the Service, and such remedy shall be performed without undue delay. If the error is immaterial, the error may be remedied with the next version update. A default or error in the Service shall be deemed material only if it has a negative effect on the functionality of the Service as a whole or if it prevents the operation or use of the Service.

11.5 The Customer’s sole and exclusive remedy and REALWEAR’s entire liability shall be to correct a material default to the features and functionality in the Service within a commercially reasonable time following receipt of written notice of breach.  The Customer shall be entitled to terminate these Terms and receive a refund of any prepaid, unused fees applicable to the remaining portion of the Subscription Period following the effective date of termination.

Third Party Infringement Claims

12.1 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.

12.2 Provided the Customer complies with the procedures in this Section 12.2, REALWEAR shall defend the Customer against claims made against the Customer by a third party alleging that Customer’s use of the Service infringes a patent, copyright, or trademark of a third party or misappropriates such party’s trade secrets (in this paragraph a “Claim”), provided that such infringement is caused solely by the Service as offered by REALWEAR and/or by its use in accordance with these Terms and the applicable User Guide. REALWEAR shall have no obligations for any and all Claims where the alleged infringement is arising from modification of the Service or the combination of the Service with any third-party intellectual property, including any interoperations, alterations, or integration of software and hardware which is made to the Service and performed by a party other than REALWEAR. Promptly upon receiving notice of a Claim, the Customer shall give REALWEAR a written notice of the Claim and give REALWEAR sole control of the defense and settlement of the Claim, and the Customer shall provide all reasonable assistance in the defense or settlement of such Claim. REALWEAR shall pay damages, and all reasonable costs, finally awarded against Customer by a court of competent jurisdiction or an arbitrator, or agreed to in a written settlement agreement signed by REALWEAR in connection with such Claims (provided that REALWEAR cannot, without the Customer’s prior written approval, make any admissions of fact that expose the Customer to an imposition of damages or other claims). REALWEAR may, at its own expense and option, offer to either i) secure rights of use for the benefit of the Customer, ii) replace or modify the Service with a non-infringing substitute, or iii) terminate the right to use the Service and refund any prepaid, unused fees to the remaining part of the Subscription Period following the effective date of termination. This Section 12.2 states REALWEAR’s entire liability and Customer’s exclusive remedy for any claim of intellectual property infringement.

12.3 Provided that REALWEAR complies with the procedures in this Section 12.3, 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 12.3 states the Customer’s entire liability and REALWEAR’s exclusive remedy for any claim of intellectual property infringement.

LIABILITY, EXCLUSIONS AND LIMITATIONS OF LIABILITY​

13.1 REALWEAR shall only be liable for loss or damage if it is proven that the loss or damage is foreseeable and due to the fault or negligence of REALWEAR in connection with the Service. The provisions of this Section 13 with its limitations and exclusions are in effect to the maximum extent permitted by applicable law.

13.2 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.

13.3 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 13, 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 BUT IN ANY EVENT BE LIMITED TO THE ANNUAL SUBSCRIPTION FEES FOR THE CURRENT SUBSCRIPTION PERIOD AT THE EVENT GIVING RISE TO THE CLAIM IN RESPECT TO THE SERVICE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

13.4 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 13.2 and 13.3 shall also apply to any product liability.

13.5 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.

APPLICABLE LAW AND VENUE

14.1 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.

14.2 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.

14.3 Notwithstanding Section 11 and Sections 13.2 and 14.2, 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.

GENERAL PROVISIONS

15.1 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. 

15.2 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. 

15.3 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.

15.4 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.

15.5 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.

15.6 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.

15.7 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.

15.8 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.

15.9 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.

15.10 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.