Obsess Inc., 524 Broadway, New York, NY 10012, USA

TERMS AND CONDITIONS

Last updated: February 6, 2023

THESE TERMS AND CONDITIONS (the “Terms”) govern access to the VR and AR platform (the “Platform”) developed by Obsess Inc., a Delaware corporation (“Obsess” or “we,” and its derivatives) and our performance of related services (“Services”) pursuant to the Order to which these Terms are attached. “You” (and its derivatives) refers to the entity executing such Order with Obsess and the “Effective Date” is the date indicated on the Order.  These Terms and the Order are, collectively, the “Agreement”.

1. CERTAIN DEFINITIONS

1.  “Confidential Information” means non-public or proprietary information in any form disclosed by or on behalf of either party that (a) is marked or identified as “confidential” or with a similar designation, or (b) by its nature or the circumstances of its disclosure ought reasonably to be treated as confidential.
2. “Customer Content” means images, videos, 360-degree images, 3D models and all related material (i.e., text, graphics, sound) provided by Customer for incorporation into a VRStore, or created by Obsess for Customer on “work for hire” basis.
3.  “Intellectual Property Rights” means all intellectual and industrial property rights in any jurisdiction worldwide, including domain names, copyrights, patents, trademarks, trade names, trade secrets, mask work rights, moral and contract rights, and all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof.
4.  “Specifications” means objective measures and criteria for the Services (including VRStore features and functionality) set forth in the Order.
5. “Usage Data” means all data about the use of the Platform and each VRStore, including the data included in reports provided to Customer.

2. SERVICES AND LIMITED LICENSE

1. General. Obsess will perform the VRStore creation and management services more fully described in the Order (the “Services”), subject to this Agreement. Aspects of the Services may be subcontracted by Obsess, provided, however, that Obsess remains responsible for such subcontracted functions as if it had performed them itself.
2. Order. The Order includes (a) the Specifications for the VRStore, (b) the estimated production and release schedule for each VRStore, (c) any critical assumptions or material obligations of the parties related to the Services, and (d) the Fees for the Services. If there is a conflict between the Terms and the Order, the Terms will control, unless the Order references the specific provision of the Terms to be superseded. The Order is incorporated into the Terms upon execution. The parties may execute additional Orders, each referencing these Terms and the date the initial Order took effect.  
3. Support. As part of the Platform Fees, Obsess will (a) use commercially reasonable efforts to promptly resolve issues with the Platform reported through our then-current customer support channels, and (b) provide you with all changes to the Modules you have licensed made available to all Obsess customers using such Modules at no additional cost (each, an “Update”) when such Update is made available. Additional support may be provided as set forth in the Order Form.
4. Platform

1. License Grant. We grant you a limited, non-exclusive, non-transferable, revocable (as set forth herein) right for you to access and use the Platform during the Term to make the VRStore available to users of your website and/or mobile application. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, WE RETAIN ALL RIGHT, TITLE AND INTEREST TO THE PLATFORM, INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS THEREIN. IN PARTICULAR, AND WITHOUT LIMITING THE PRIOR SENTENCE, YOU EXPRESSLY AGREE THAT YOU ARE NOT ACQUIRING ANY OWNERSHIP RIGHTS TO THE PLATFORM OR ANY OF ITS ELEMENTS AS A RESULT OF THIS AGREEMENT, THE ORDER, OR OUR PERFORMANCE OF THE SERVICES.
2. Restrictions. You may not (i) repackage the Platform or any of its elements on a standalone basis, (ii) incorporate Platform elements into any product, software, or media except via the integration of the VRStore with your site, application, or social media accounts that you control (subject to the terms of use of such social media networks), (iii) sell, resell, rent, lease or otherwise provide access to the Platform (except to the extent individuals view a VRStore as part of the standard functioning of the Platform), or (iv) isolate or extract Platform elements from a VRStore or Module for any purpose, or (v) remove the attribution “powered by Obsess”, or a similar attribution as designated by Obsess, from the VRStore as incorporated into your site. Except as expressly permitted by applicable law, you may not yourself or through others reverse engineer, decompile, disassemble or attempt to derive the source code of the Platform or any of its elements. You are responsible for the compliance with these Terms of any individual you allow to access the Platform on your behalf.
3. Changes. You agree that, due to the developing nature of the Platform, the Platform elements available to you may change during the Term. We will advise you in advance of any such changes. Internet-based services and offerings cannot be guaranteed to be secure, and the Platform or a VRStore may have vulnerabilities.
4. Open Source Software. Certain items of code provided with the Platform are subject to “open source” or “free software” licenses (“OSS”), a list of which will be provided upon request as necessary. OSS is not subject to the terms and conditions of this Agreement, except for this section and the disclaimers and limitations of liability. Instead, each item of OSS is licensed under the terms of the license that accompanies such OSS.
5. Reports.

1. As part of the Services, during the Term we will provide you with all standard analytics reports in the form and manner provided to other Platform customers.
2. We hereby grant you an irrevocable, worldwide, perpetual, and unrestricted license to use reports provided to you as part of the Services for your business purposes, provided, however, that (A) following the Term you will no longer be able to access  reports via the Platform, but (B) either (1) the Platform will support the automatic export of all reports related to your Content in a standard data format (i.e., MS Excel), or (2) if automatic export is not enabled when your Platform access terminates, we will manually export your reports at no additional cost to you.  

6. Customer Content. Subject to the licenses granted herein, Customer owns all rights, title and interest in the Customer Content.
7. Usage Data. Obsess owns all Usage Data. We may use such Usage Data in our sole discretion, provided, however, that we may not share information that identifies you, your Customer Content, or any personally identifiable information of any individual, including any visitor to your site or user of your application without your express, written consent.
8. Add-Ons. Optional features for the Platform, which may include new Modules (each, an “Add-On”) may be made available for an additional fee. Add-Ons are not required for the proper functioning of the Platform, may be subject to additional terms, and will be indicated on the applicable Order Form. Where Add-Ons have additional terms, you must accept such additional terms prior to accessing the Add-On.

5. Security.  We implement security procedures and practices that are appropriate to the nature of the information we maintain and that are designed to protect against unauthorized access to the Platform and information therein.

3. YOUR RESPONSIBILITIES

1. Content.

1. You are responsible for all Customer Content provided to us for incorporation into a VRStore or otherwise in connection with this Agreement. To the extent that we produce Customer Content for you as part of the Services, we do so on a “work for hire” basis and we hereby transfer all right, title and interest in and to such Customer Content upon receipt of full payment for the creation thereof. You may not use the Platform to transmit, store, display, distribute or otherwise make content available that is illegal, harmful, or offensive, including content that is defamatory, obscene, abusive, invasive of privacy, pornographic, or otherwise objectionable.
2. You hereby grant Obsess a limited, revocable, non-assignable, non-sublicensable (except to the extent we use third party providers such as AWS to host the Platform) license to use your  Customer Content solely for the purposes of hosting the VRStore and performing the Services during the Term.

2. Feedback. As reasonably requested during the Term, you will provide us with feedback about the Platform and Services, which may include responses to surveys, service requests, ideas for improvements, suggestions, and any other communications relating to the features, functionality, and potential for the Platform (collectively, “Feedback”). Obsess will own all Feedback you provide to us in any form, and you hereby assign all right, title, and interest in the Feedback to Obsess.  
3. Internet Access. You are responsible for any network or internet connectivity required to access or use the Platform.
4. General. In addition to obligations identified elsewhere in this Agreement, including the Order, you will provide us with access to such information, personnel and systems we reasonably require to perform our obligations hereunder.

4. PAYMENTS

1. Fees. You will pay the fees for the Services and access to the Platform set forth in the Order (the “Fees”). We will inform you in writing at least sixty (60) days prior to the end of the then-current Term of any adjustment to the Fees for any Renewal Term.
2. Expenses. You will reimburse us for the actual cost of travel and other expenses we incur in connection with this Agreement, provided you have agreed to such expenses in advance, in writing.
3. Invoicing and Payment. Unless otherwise set forth in the Order, as of the Order Effective Date, we will invoice you for the Total Fees. Fees are payable in U.S. dollars and are due thirty (30) days after receipt of the invoice. Any portion of the Fees that is not paid when due will accrue interest at two percent (2%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. We may suspend performance of the Services, including all access to the Platform, if undisputed amounts remain unpaid after the due date.
4. Taxes. The Fees do not include, and you will pay, all sales, use, excise, value-added and other taxes levied upon the Services, except for taxes on our net income.

5. TERM AND TERMINATION

1. Term. Unless terminated pursuant to Section 5.2, this Agreement will remain in effect for the Initial Term indicated in the Order, and thereafter renew for additional periods of the same length (each, a “Renewal Term” and all such Renewal Terms and the Initial term together, the “Term”) unless either party provides written notice of its intent not to renew the Agreement at least thirty (30) days prior to the end of the then-current Term.
2. Termination for Cause. Either party may terminate this Agreement for a material breach that remains uncured thirty (30) days after the breaching party’s receipt of written notice thereof.
3. Effect of Termination. Upon termination of this Agreement: (a) your access to the Platform will cease and Obsess will immediately stop performing any Services, if applicable, (b) each party will promptly destroy or return, at its expense, the other party’s Confidential Information, and (c) you will pay any unpaid Fees accrued prior to the effective date of termination. In the case of termination by you as set forth in Section 5.2 for Obsess’ material breach, Obsess will refund you any prepaid Fees that remain unused as of the effective date of termination. Termination-related payments will be due within sixty (60) days of the date of termination.
4. Survival. Sections 4, 5.4, 7, 8, 9 and 10 will survive termination of this Agreement.

6. LIMITED WARRANTY AND DISCLAIMER

1. Warranty.

1. Each party represents and warrants that (i) it has the legal right to enter into this Agreement, (ii) the execution of, and performance subject to, this Agreement will not violate the terms of any other agreement binding such party, and (iii) it will comply with all laws applicable to this Agreement, the Platform, and the Services.
2. Obsess warrants that the Platform will materially conform to the functionality listed in Section 4 of the Order during the Term. Our sole obligation and your entire remedy for a failure to comply with this warranty is for us to promptly modify the Platform to make it conforming at no cost to you.  

2. Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1, THE SERVICES AND PLATFORM ARE PROVIDED “AS IS”, WITHOUT ANY WARRANTY OF ANY KIND. TO THE GREATEST EXTENT ALLOWED BY LAW, WE DISCLAIM ALL WARRANTIES NOT EXPRESSLY PROVIDED FOR HEREIN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE. WE DO NOT PROVIDE ANY WARRANTY THAT THE PLATFORM WILL OPERATE IN AN UN-INTERRUPTED MANNER OR BE PERFECTLY SECURE.

7. INDEMNIFICATION

1. By Us

1. We will defend, indemnify and hold you harmless from all losses, damages, costs and expenses awarded by a court or agreed upon in settlement, including reasonable and related attorneys’ fees and court costs, arising from a third party claim that the Platform or any element thereof infringes such party’s Intellectual Property Rights (“Infringement Claims”), except for Infringement Claims arising from a combination of the Platform with your Customer Content or other intellectual property or unauthorized use or modification of the Platform.
2. If an Infringement Claim is brought or threatened, we may, in our sole discretion, (i) secure the right for you to continue using the allegedly infringing item, or (ii) modify or replace the allegedly infringing item to make it non-infringing without degrading the functionality of the Platform. If neither (i) nor (ii) is commercially reasonable in our sole judgment, we may terminate this Agreement and return any prepaid, unused Fees.

2. By You. You will defend, indemnify, and hold us, our agents, officers and employees, harmless from all losses, damages, costs and expenses awarded by a court or agreed upon in settlement, including reasonable and related attorneys’ fees and court costs, arising from a third party claim alleging that your Customer Content as provided to us in connection with this Agreement infringes such party’s Intellectual Property Rights.
3. Procedures. The obligations in this Section 7 are contingent on the indemnified party: (a) promptly notifying the indemnifying party of any claim; (b) granting the indemnifying party sole control over the defense and/or settlement of the claim (provided that a settlement may not impose costs or liability on the indemnified party without its consent); and (c) providing reasonable assistance to the indemnifying party at the indemnifying party’s expense.
4. Sole Remedy. The remedies in this Section 7 are the indemnified party’s sole remedy, and the indemnifying party’s entire liability, with respect to any indemnifiable claim.

8. CONFIDENTIAL INFORMATION

1. Ownership. Each party may have access to the other party’s Confidential Information as a result of this Agreement. Confidential Information is the sole property of the disclosing party. This Agreement’s terms are Confidential Information of the parties, but the existence of this Agreement is not.
2. Use. Each party will: (a) only use Confidential Information to fulfill its obligations hereunder; (b) only provide access to Confidential Information on an “as-needed” basis to its personnel, agents, and/or consultants who are bound by obligations materially similar to this Section 8.2, and (c) maintain Confidential Information using methods at least as protective as it uses to protect its own information of a similar nature, but in no event using less than a reasonable degree of care. Each party will promptly return or destroy the other party’s Confidential Information upon termination or expiration of this Agreement. The obligations in this Section 8.2 will apply during and for three (3) years after the Term, except in the case of Confidential Information that is a trade secret, in which case the obligations will remain in effect for so long as the trade secret is maintained. (4) Obsess will keep the project confidential until it launches publicly.
3. Exceptions

1. Confidential Information does not include, and Section 8.2 does not apply to, information that is: (i) publicly available when disclosed or becomes publicly available without fault of the recipient after disclosure; (ii) rightfully communicated to the recipient by entities not bound to keep such information confidential, whether prior to or following disclosure, (iii) independently developed by recipient; or (iv) approved for unrestricted disclosure by the disclosing party.
2. A recipient may disclose the other party’s Confidential Information only as required: (i) by court order or applicable law (provided that, to the extent legally permissible, the recipient promptly notifies the other party of such requirement and cooperates with the other party’s reasonable and lawful efforts to prevent or limit the scope of such disclosure, at the other party's expense); or (ii) to establish its rights under this Agreement.

9. LIABILITY

1.  LIMITATION ON LIABILITY TYPE. NEITHER PARTY WILL BE LIABLE UNDER ANY THEORY OF DAMAGES FOR ANY LOST BUSINESS, LOST PROFITS, LOST SAVINGS, LOST REVENUE, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF A BREACH OF THIS AGREEMENT, EVEN IF THE PARTY FROM WHICH SUCH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. LIMITATION ON LIABILITY AMOUNT. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES ARISING OUT THIS AGREEMENT WILL BE THE FEES PAID AND PAYABLE UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE LAST EVENT GIVING RISE TO THE LIABILITY.
3. EXCEPTIONS AND APPLICABILITY.

1. SECTIONS 9.1 AND 9.2 WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS, MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.

(b) NOTWITHSTANDING SECTION 9.3(a), EACH PARTY’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS OR THE DATA SECURITY PROVISION OF THIS AGREEMENT WILL NOT EXCEED THREE TIMES (3x) THE FEES PAID AND PAYABLE UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE LAST EVENT GIVING RISE TO THE LIABILITY.

(c) THIS SECTION 9 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR PROVEN INEFFECTIVE.

10. GENERAL PROVISIONS

1. Insurance. Obsess will maintain in full force and effect during the Term the following insurance, issued by insurance carriers licensed to do business in the states in which Obsess conducts business: (a) workers’ compensation insurance with limits required by applicable law; (b) commercial general liability insurance with limits not less than one million dollars ($1,000,000) per occurrence/two million dollars ($2,000.000) in the aggregate for bodily injury, death, and property damage; (c) professional liability insurance, including cyber coverage,  with limits not less than one million dollars ($1,000,000) per occurrence/two million dollars ($2,000.000) in the aggregate. Upon written request, Obsess shall deliver certificates of insurance showing such policies are in force.  

2. Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except in the event of a merger, consolidation, or sale of all or substantially all of such party’s assets.
3. Entire Agreement; Amendment. This Agreement and the Order (a) is the parties’ entire understanding regarding its subject matter, and (b) supersedes all other oral or written agreements of the Parties as to such subject matter. This Agreement may only be amended in a writing consented to by the parties. Any terms and conditions in or referenced by an invoice, purchase order or other such document issued pursuant to this Agreement will have no force or effect.
4. Notices. Legal notices relating to this Agreement must be written and delivered to the receiving party’s address as set forth in the Order by personal delivery, certified mail (postage pre-paid, return receipt requested), or a commercial courier requiring signature for delivery, and will be effective on receipt or when delivery is refused. Operational communications, including changing a party’s notice address, may be delivered via email.
5. Attribution. We may list you as customer, and display your logo (consistent with your provided style guidelines) on standard customer lists online or in hard copy.  
6. Independent Contractors. We are an independent contractor, and this Agreement does not create a joint venture, partnership, principal-agent or employment relationship between the parties. Neither party will have, or represent to a third party that it has, the authority to act for or bind the other party.
7. No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties.
8. Severability. Any provision of this Agreement found invalid or unenforceable will be restated to reflect the original intent as closely as possible in accordance with applicable law. The invalidity or unenforceability of any provision herein will not affect the validity or enforceability of any other provisions.
9. Force Majeure. Neither party will be liable for a failure to fulfill its obligations due to causes beyond its reasonable control that cannot be mitigated through the exercise of due care.
10. Governing Law and Venue. This Agreement, including its formation, will be governed by and interpreted according to the laws of the State of New York without regard to its conflicts of laws provisions that would require a different result. A cause of action relating to this Agreement may only be brought in the state or federal courts in New York County, New York.
11. Waiver. A party’s waiver of a breach of this Agreement will not waive any other or subsequent breach.
12. Non-Solicitation. During and for one (1) year after the Term, neither party will induce or attempt to induce the other party’s employees or contractors to cease their relationships with such party, provided, however, that this restriction will not apply to situations where an individual responds to a general solicitation for employment such as a posting on a job site or a publication.
13. Headings and Interpretation. Headings are for reference only and do not affect the parties’ obligations. As used herein, “may” means “has the right, but not the obligation, to”; “includes” and its variations means “includes, but is not limited to”; and “days” means calendar days, provided that obligations that would be due on a weekend or holiday will be due on the next business day following such weekend or holiday.