Terms of Service

These Terms of Service, including any Order Form and other document agreed to by the parties that reference these Terms of Service, (collectively, the “Agreement”) are entered into between you and COGNITIVEVR INC. dba Cognitive3D (“C3D”) and govern access to C3D’s online services, including but not limited to the Cognitive3D analytics platform (“Platform”) and C3D’s website available at cognitive3d.com, including subdomains (“Website”), and software licensed to you (collectively, the “Service”).

By executing an Order Form, clicking “I Agree” or similar confirmation, or by using the Service, you are agreeing to be bound by this Agreement.

If you are agreeing to the Agreement on behalf of an organization, “you” refers to that organization.

Accounts

Access and Creation.

The Website provides access to: (a) publicly accessible content, for example providing general information about the Platform and C3D (“Public Site”); and (b) the Platform through one or more registered account (each, an “Account”) provided by C3D at its discretion directly or indirectly through a third party single sign on (for example, Google). You must be at least 18 years old or the age of majority in your jurisdiction (whichever is older) in order to receive an Account or otherwise use the Platform and you represent and warrant that you have the right and authority to enter into and comply with this Agreement

Log-in Information.

As an Account holder, you shall: (a) provide C3D with accurate contact information as requested by C3D, including but not limited to your current mailing address, telephone number and email address; (b) maintain a confidential user name and password (“Log-in Information”), which you shall use each time you log onto the Platform; (c) use commercially reasonable efforts to manage and ensure the security, confidentiality and authorized use of your Log-in Information and shall not share it with any other person or entity; and (d) be responsible for all activity through the Service that originates from any Account logged in through your Log-in Information. C3D is not responsible for any loss or damage arising from your failure to maintain the confidentiality of your Log-in Information. If you detect unauthorized access to or use of your Account, you shall promptly notify C3D of such unauthorized access or use.

Subscription and License

Subscription Grant.

C3D hereby grants you a limited, non-exclusive, non-transferrable, non-sublicensable, revocable subscription to access and use the: (a) Platform through an Account and free or paid subscription (each, a “Subscription”); and (b) Public Site. Service usage rights and functionality associated with a Subscription are as agreed to by C3D and the person or entity who purchased a Subscription (whether free or paid) through the Website or executed Order Form (“Customer”).

License Grant.

C3D hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to install and use the Platform application-programming interface (“API”) and software development kits (“SDK”) only for purposes of interacting with the Platform, as allowed by the API and the SDK functionality and limited by Section 2.3. The foregoing SDK license is subject to additional licenses terms set forth in in the root directory of the GitHub repository for each SDK utilized by the Customer, available at github.com/orgs/CognitiveVR/repositories, which you hereby agree to. Both the API and SDK are provided on an ‘AS IS’ and ‘WHEN AVAILABLE’ basis.

Subscription and License Limitations.

You shall use the Subscription and License solely for Customer’s internal business purposes for the duration of the Agreement (the“Term”). While Customer is permitted to allow its employees, contractors and service providers to access and use the Platform through Accounts, such access must be for the sole benefit of Customer, at all times in compliance with this Agreement, and Customer is solely liable for their compliance with the Agreement. Other than the API and SDK license pursuant to Section 2.2, your right to use the Platform will be web-based only and no software related to the Service will be installed in any servers or other computer equipment owned or controlled by you or Customer.

Academic Limitations.

If the Order Form limits use of the Service to an Academic Purpose, the Customer agrees to be subject to the following additional Service limitations. “Academic Purpose” means for the sole purpose of production of dissertations, papers, lecture notes, handouts, and similar documents or publications of academic character for distribution on the web, at lectures, or through academic channels that are not of a commercial nature. For further certainty, any collaboration with a third party for commercial gain does not qualify as an Academic Purpose.

Support and Professional Services

Support.

C3D shall use commercially reasonable efforts to make the Service available on a 24x7 basis (twenty-four hours per day, seven days per week) during the Term pursuant to the attached Support Terms (“Support Terms”). Notwithstanding the foregoing, Customer acknowledges and agrees that the Service may be unavailable due to: (a) scheduled system back-up or other on-going maintenance as required by C3D and of which notice has been provided to Customer; or (b) any unforeseen cause beyond C3D’s reasonable control, including but not limited to, internet service provider, power or communications network failures, denial of service attacks or similar attacks, or any force majeure events, which Service unavailability does not constitute a breach of the Agreement or Support Terms.

Professional Services.

If Customer requests C3D to provide professional services in connection with the Service, C3D shall determine in its sole discretion whether to undertake such professional services and, if C3D desires to proceed, provide Customer a work order (“Work Order”) containing an estimate of the time required to complete such professional services, associated cost and other applicable terms. Professional Services are subject to Customer’s acceptance of the applicable Work Order.

Use of the Service

Service Provisioning.

Unless otherwise agreed by Customer and C3D, C3D shall provision the Service through shared United States based cloud infrastructure, which, in the case of a paid Subscription, shall take place no later than 5 business days following execution of the Order Form.

eatures.

Features you may use through the Service are subject to change in the case of a: (a) free Subscription, at any time without notice; or (b) paid Subscription, upon 9 days written notice before the start of any Renewal Term (as defined in Section 6). Features associated with your Subscription are described on the Website, as updated on one or more occasions, and/or Order Form (as applicable).

uthorized Use.

You shall use the Service in conformance with all applicable laws and regulations and shall not:

1. engage in conduct constituting improper use of the Service, in a manner that exceeds reasonable request volume or constitutes excessive or abusive usage;
2. decompile, disassemble or reverse engineer the Service or otherwise attempt to derive the Service source code or gain unauthorized access to the Service;
3. reproduce, rearrange, modify, translate, create derivative works from, display, perform, publish, or distribute the Service, unless expressly permitted by C3D;
4. reproduce, rearrange, modify, translate, create derivative works from, display, perform, publish, or distribute the Service, unless expressly permitted by C3D;
5. break, disrupt or attempt to break or disrupt any device used to support the Service or knowingly exploit a flaw or bug in the Service;
6. use the Service to store or transmit material that is infringing, libellous, unlawful or in violation of any person’s rights;
7. harass, abuse, stalk, threaten or impersonate any person through the Service;
8. sell, rent, lease or sublicense the Service or access thereto, unless expressly permitted by C3D;
9. promote, encourage or undertake illegal activity or communicate, link to, post, stream, submit or upload content that contains objectionable or offensive conduct through the Service;
10. use the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes, except that Customer may display certain Service data, functions or graphics through Customer’s own software or services with C3D’s written consent; or
11. use the Service to infringe or violate third party rights including but not limited to: (i) contractual rights, (ii) copyright, patent, trademark, trade secret rights or other intellectual property rights, (iii) privacy rights, (iv) publicity rights, or (v) confidential information, as determined by C3D in its sole discretion.

Excess Usage.

C3D reserves the right to monitor and reasonably restrict your ability to use the Service if using excessive computing resources impacting performance of the Service for C3D and/or other subscribers, as determined by C3D acting reasonably. C3D shall provide Customer with prior written notification in cases where it restricts such use and use good faith efforts to determine an appropriate alternative or work­around solution prior to restricting Customer’s ability to use the Service.

Privacy Policy.

Use of the Service is governed by a Privacy Policy detailing how C3D collects, uses and discloses personal and anonymous data about you and is available at cognitive3d.com/privacy-policy, as updated on one or more occasions. Customer is responsible for disclosing the Privacy Policy to its employees, contractors, service providers and other third party users of the Service, whether such use of the Service occurs directly or indirectly through integration into Customer’s software or services, and to confirm in writing each user’s acceptance and adherence thereto. If at any time you disagree with the then-current Privacy Policy, you must immediately stop use of the Service and contact C3D at privacy@cognitive3d.com.

Compliance with Privacy Laws.

Use of the Service requires that you comply with applicable data privacy laws in your jurisdiction and, in some cases, in the jurisdiction of your customers or clients. While using the Service, you agree to fully comply with applicable data privacy laws, including any requirements to gather consent prior to collection of certain types of data, such as biometric data.

Data Processing Addendum.

In order to use the Service, you must agree to the Data Processing Agreement (“DPA”) found here cognitive3d.com/dpa, which is incorporated into this Agreement by reference and may be updated from time to time and is made available on our Website. The DPA may go further than you are required to by law in your jurisdiction in order to protect certain data so please make sure to understand the DPA before agreeing to this Agreement.

Third Party Applications.

The Service may integrate with third party services (“Third Party Services”). The Agreement does not grant any license, right, title or interest in Third Party Services and you may be required to enter into agreements with a third party in order to use such Third Party Services, which you must determine the suitability of. If you use Third Party Services, C3D may permit Third Party Services to access Customer Data (as defined below) as required for the integration or use of such Third Party Services with the Service. Integration of Third Party Services is contingent upon third parties permitting C3D to integrate the Service with their respective Third Party Services and such permission and/or integration may end at any time without notice or compensation to you.

Order Form and Fees

Order Form.

Each paid Subscription requires Customers to sign an Order Form in the form provided by C3D, which contains Service plans and associated features available to a Customer based upon the plan selected by the Customer in the Order Form, as well as pricing and other relevant terms.

Fee Payment.

Customer shall pay C3D the Subscription fee set forth in the Order Form (“Subscription Fee”), as well as any additional fees and charges agreed to by Customer and C3D, for example, professional service fees, which may be charged on a one-time or recurring basis. Customer shall pay the fees in accordance with the Order Form, as invoiced by C3D, which are non-refundable. C3D may increase the Subscription Fee by providing written notice of the change at least 90 days before the start of a Renewal Term. If Customer elects to pay by credit card, Customer hereby authorizes C3D to charge the credit card Customer provides for all fees owed to C3D. You represent and warrant that: (a) you have the legal right to use any credit card(s) or other payment method(s) in connection with your payments to C3D; and (b) the information you provide for payment purposes is true, correct and complete. Customer must provide a valid credit card and if Customer's credit card changes or expires, or is revoked, disputed or not valid for any other reason, C3D may suspend Customer’s use of the Service upon 3 days’ notice or otherwise terminate the Agreement pursuant to Section 6. By submitting payment information, you grant C3D the right to provide such information to third parties, including but not limited to PayPal, for the purpose of facilitating your purchases with C3D. C3D reserves the right to refuse or cancel any Subscription Fee, additional fee, charge or other purchase with C3D for reasons including but not limited to: (i) suspected fraud, illegal or authorized transaction; (ii) issues with the availability of the Service pursuant to Section 3.1; or (iii) any other reason, as determined in C3D’s absolute discretion.

Overdue Invoice.

Following Customer’s failure to pay an invoice for 30 days, C3D may suspend the Service and, before resuming the Service, may require that Customer pay: (a) all outstanding amounts; (b) and all amounts that will become payable during the remainder of the Term.

Taxes.

Subscription Fees as well as any additional fees and charges agreed to by Customer and C3D exclude taxes, duties and charges, which Customer shall pay. If C3D pays or collects taxes on Customer’s behalf it shall invoice Customer for the applicable amount, which Customer shall pay on the same terms as set forth in Section 5.2

Term; Termination

Term.

The Agreement is effective on the earliest of: (a) in the case of access to the Public Site, the date you first access the Public Site; (b) if a free Subscription, the date Customer signs up for a free Subscription through the Website; or (c) if a paid Subscription, the date an Order Form is executed.

Term Duration.

The Term of a free Subscription runs until such free Subscription is terminated pursuant to the Agreement. The Term for a paid Subscription is initially 12 months, or such other duration set forth in the Order Form, thereafter automatically renewing for additional periods of 12 months (or as set forth in the Order Form), unless terminated by either party prior to renewal (each renewed Term, a “Renewal Term”).

Termination.

The Term terminates upon the earliest of:

1. termination of the Agreement prior to a Renewal Term pursuant to Section 6.2;
2. your failure to pay the Subscription Fee, or any fee or charge due and owing by you to C3D;
3. in the case of a free Subscription or access to the Public Site, when Terminated by Company, which may occur at any time without notice.
4. your non-compliance with (or rejection of) the Agreement or Privacy Policy; or
5. at the other party’s option, if a party becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or if a receiver or trustee in bankruptcy is appointed for the party, or if any proceeding in bankruptcy, receivership or liquidation is commenced against the party and not dismissed within 30 days following commencement.

Upon termination, whether by you or C3D, you are not entitled to a refund of any kind and shall pay any due and unpaid fees. Following termination, C3D may, but is not obligated to, retain Customer Data to allow you to reactivate your Subscription for up to 90 days and for such other purposes set forth in the Privacy Policy.

Security.

C3D is committed to ensuring the security of Customer Data and, to prevent unauthorized access, disclosure or breach, has put in place suitable physical, electronic, and administrative procedures to safeguard and secure the data C3D collects and processes.

Ownership and Confidentiality

Service Ownership.

The Service and constituent parts thereof are the proprietary property of C3D and its licensors, and all right, title and interest in and to, including all associated intellectual property rights, remain with C3D and its licensors. You may not remove or modify any proprietary marking or restrictive legends in the Service. The Agreement does not convey any right, title or interest in, or constitute the sale of any right to, the Service, Subscription or Account. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are and shall be forever owned by and inure to the benefit of C3D, excluding Customer Data. The trademarks, logos, and service marks (collectively, the“Trademarks”) displayed on the Service are registered and unregistered marks of C3D or are otherwise used in accordance with applicable law. Nothing contained in the Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Trademarks without C3D’s written permission. C3D reserves all rights unless expressly granted in this Agreement.

Customer Data.

Data that you provide in connection with your Account or otherwise upload or transmit through the Service (“Customer Data”) is and shall remain the sole property of Customer. Any and all right, title and interest in and to Customer Data, including all associated intellectual property rights, remain with Customer. Except as set forth herein, C3D shall not make any derivative of the Customer Data. However, C3D may use, store and modify Customer Data in order to: (a provide the Service; (b) create anonymous aggregated or statistical data (or both), (c) improve or otherwise modify the Service; (d) create new products and services; (e) analyze the Service and its use and publishing the results of such analysis; and (f) deliver to Customer relevant information and communications, in addition to other purposes described in the Privacy Policy.

Customer Feedback.

You hereby grant C3D a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license to use any feedback you provide regarding the Service. Such feedback is deemed to not be Confidential Information of you or Customer and nothing in this Agreement shall operate to limit C3D’s use of such feedback.

Confidential Information.

During the course of this Agreement, a party may disclose (“Discloser”) Confidential Information to the other party (“Recipient”), which Recipient shall use and disclose solely for the purpose of, and in accordance with, this Agreement. “Confidential Information” means any business, marketing, technical, scientific or other information of Discloser, which, at the time of disclosure, is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by Recipient, exercising reasonable business judgment, to be confidential. Recipient may disclose Confidential Information to its directors, officers employees and subcontractors who have a need to know such Confidential Information and only if such recipients are subject to confidentially obligations no less stringent than those contained in this Agreement. Recipient shall use the same degree of care as it uses to protect its own Confidential Information, but no less than reasonable care, to prevent the unauthorized use or disclosure of Confidential Information. Notwithstanding the foregoing, this Section 7 does not apply to Confidential Information that: (a) was lawfully in the public domain or known to Recipient prior to its disclosure, or becomes publicly available or known to Recipient other than through a breach of this Agreement; (b) was disclosed to Recipient by a third party, provided that such third party is not in breach of any confidentiality obligation in respect of such information; or (c) was developed by Recipient without use of the disclosing party’s Confidential Information. If Recipient is compelled pursuant to legal, judicial, or administrative proceedings, or otherwise required by law to disclose Confidential Information, Recipient shall use reasonable efforts to seek confidential treatment for such Confidential Information and provide prior notice to Discloser to allow it to seek protective or other court orders. Each party agrees that a breach of this Section 7 would cause the other irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, the non-breaching party will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage.

DMCA

C3D complies with the U.S. Digital Millennium Copyright Act (“DMCA”). If you are a copyright owner or representative of the owner and believe that a user has submitted or uploaded material that infringes upon your United States copyrights, you may submit notification in accordance with the DMCA by providing C3D with the following information in writing:

1. identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
2. identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the Service (such as the URL(s) of the claimed infringing material);
3. information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
4. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
5. a statement by you, made under the penalty of perjury, that the above information in your notification is accurate and that you are the owner of an exclusive right that is allegedly infringed or are authorized to act on the owner’s behalf; and
6. your physical or electronic signature.

Please send all written correspondence of alleged infringements to:

You may also contact legal by email to legal@cognitive3d.com.

Disclaimer, Limitation of Liability

Disclaimer.

the service is provided to you “as is” and c3d disclaims all representations, warranties and conditions, express, implied or statutory, including without limitation merchantability, fitness for a particular purpose and non-infringement of third party rights, to the extent permitted by law. without limiting the foregoing, c3d makes no representations or warranties that the service will meet your requirements or that operation of the service will be uninterrupted, continuously available, error free, will not harm computers, mobile devices or any attached devices, not result in lost data or be secure against unauthorized access. no oral advice or written information provided by c3d, its subsidiaries, affiliates, officers, directors, employees, representatives or assigns (“representatives”), will create any warranty and you shall not rely upon such advice or information. you bear the entire risk as to the performance, operation and quality of the service.

Limitation of Liability.

C3D and its representatives shall not be liable to you for any claim, loss or damage of any kind arising out of or relating to the Service or Third Party Services including without limitation consequential, incidental or special damages, loss of data, loss of profits, loss of goodwill, personal injury or death and any and all other tangible and intangible damages or losses, even if C3D has been advised of the possibility of such damage or loss.

Maximum Aggregate Liability.

Note that some jurisdictions do not allow the disclaimer of certain terms or warranties or exclusion of liability for certain damages and, if any disclaimer or limitation of liability is found unenforceable, void or does not fully shield C3D from liability, you agree that C3D’s and/or its representatives maximum aggregate liability in any case whatsoever will be the total amount Customer paid to C3D in the 12 months immediately preceding the date of act leading to the harm in question.

Indemnification

Customer shall indemnify, defend and hold C3D and its Representatives, harmless from and against any claim, liability, injury, damage, cost, loss or expense, including reasonable attorneys’ fees, in connection with your or Customer’s use of the Service or Third Party Services, personal injury or death arising while using the Service or Third Party Services, or your violation of the Agreement or any law or regulation (including but not limited to privacy laws). Customer shall not settle any claim without C3D’s advance written consent unless such claim releases C3D unconditionally. C3D reserves the right to, at its expense, assume control of the claim.

General

Governing Law.

The Agreement is governed by the laws of the province of British Columbia and the laws of Canada applicable therein, without reference to principles of conflicts of laws, and courts in Vancouver, British Columbia will have exclusive jurisdiction to hear any proceedings related to this Agreement and to which the parties irrevocably attorn to the jurisdiction of.

Notice.

Any notice required by the Agreement shall be given by email to C3D at legal@cognitive3d.com and by C3D to you at the email address you provide to C3D, as updated on one or more occasions, such notice deemed received upon sending.

Limitation Period.

Any cause of action arising out of or related to the Agreement or the Service must commence within one year after the cause of action accrues and, if not, is permanently barred. The parties acknowledge that the foregoing constitutes a modification and shortening of the limitation period set forth in the Limitation Act (British Columbia) and agree to shorten the limitation period.

Waiver of Jury Trial.

You waive any right you may have to a jury trial in connection with any claim in any way arising out of or related to this Agreement or the Service.

Export Compliance, CISG Disclaimer.

Canadian and foreign export control laws regulate the export and re-export of technology originating in Canada and such foreign countries. You agree to abide by these laws and regulations as applicable and will not transfer, directly or indirectly, by electronic transmission or otherwise, the Service, API or SDK in connection therewith from any countries or foreign nations in violation of such laws or regulations. You shall comply with the export laws and regulations of the applicable jurisdictions in which you provide, access or use the Service. The parties expressly disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.

Severability, Waiver.

If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law with remaining provisions of this Agreement in full force and effect. No failure or delay by a party in exercising any right, power or remedy under this Agreement constitutes a waiver thereof.

Assignment.

No party may assign, transfer or pledge the Agreement, in whole or in part, without the prior written consent of the other party, except that a party may assign: (a) the Agreement in connection with its merger or the sale of all or substantially all of its business relating to the subject matter of the Agreement; or (b) to any of its wholly-owned subsidiaries or affiliates; provided, however, that such acquirer or affiliate is obliged to be fully bound by the terms and conditions under the Agreement

Force Majeure.

Except with respect to the Customer's obligation to make payments, neither party shall be held responsible for any delay, deficiency or failure in performance due to causes beyond its reasonable control including, but not limited to, fires, strikes, embargoes, explosions, earthquakes, hurricanes, floods, wars, the elements, labor disputes, government requirements, acts of war and terrorism, civil or military authorities, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers.

Entire Agreement.

The Agreement, including the Order Form, Privacy Policy, Support Terms, Work Order(s) and the DPA, as amended on one or more occasions, constitutes the entire Agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No terms or conditions stated in any purchase order other order documentation you provide are incorporated into or form any part of the Agreement and are null and void.

Survival.

Sections 5, 6.3, 7, 9, 10 and 11 survive termination of this Agreement.