BY PURCHASING AND DOWNLOADING UR VIRTUALITY APP YOU AGREE WITH THE FOLLOWING:
You will be the party defined as the client hereto (“Client“) and agree to enter into an agreement with MIRABLE INC., a corporation duly incorporated under the laws of the Province of Ontario (“Licensor“).
ON THE SECOND PART
WHEREAS Licensor has developed certain virtual experiences (each an “Experience“, as more fully defined below);
AND WHEREAS Licensor desires to grant to Client, and Client desires to obtain, a non-exclusive licence (the “License“, as more fully defined below) pursuant to which Client will have certain rights in respect of the Experience;
AND WHEREAS Licensor has the full authority to grant the License on the terms and conditions herein contained;
NOW THEREFORE, in consideration of the mutual covenants and promises set forth below, the receipt and sufficiency of which is hereby acknowledged, the parties (each a “Party” and collectively the “Parties“) agree as follows:
- Article 1- DEFINITIONS
- Definitions. The terms defined herein shall have the following meanings unless the context expressly or by necessary implication otherwise requires:
- “Act” means the Arbitration Act (Ontario) and its related regulations, the whole as may be amended from time to time.
- “Agreement“, “this Agreement“, “hereto“, “hereof“, “herein“, “hereunder” and similar expressions refer to this agreement including its Schedules and not to any particular article, section or other portion of this agreement and include every amendment or instrument supplementary hereto or in implementation hereof.
- “App” means an app developed by Licensor, namely Virtuality and allowing Users the opportunity to interact with it and its special features and to access the resources available in the version of the App purchased by the Client.
- “Claims” means claims, demands, costs, actions, causes of actions and expenses (including reasonable legal fees if any, other than the costs of defence) exclusive of consequential damages, special damages and/or business interruption losses, which may be taken or made against a Party including against its officers, directors and/or its employees, or which may be incurred or become payable by such Party caused by any act of neglect or omission of the indemnifying Party or by any employee of, or person retained by, the indemnifying Party.
- “Effective Date” means the date first hereinabove written.
- “Event of Default” means Client’s breach of any one or more of its obligations hereunder.
- “Experience” means any virtual holiday-themed or gaming reality or augmented reality experience developed by Licensor in and to which Licensor owns all right, title and interest (including, without limitation, all Intellectual Property Rights), and which is the subject-matter of the License.
- “Fee” means the aggregate fee payable by Client to Licensor for the License, consisting of (a) a base fee; and (b) a $0 per-User fee.
- “Intellectual Property Rights” means any intellectual property right related to the Experience and to the Inventions including, without limitation, any technology, processes, know-how, technical specifications and design rights, whether developed or to be developed, and any intellectual property right protected through legislation, such as that governing, but not limited to, copyright, trademarks, patents and patents pending, whether pending, applied for or issued, whether filed in Canada or elsewhere.
- “Inventions” means all things acquired, authored, conceived or first reduced to practice, designed, developed, discovered, engineered, improved, made, perfected or produced and that are embodied in, derived from or relate to the Experience, in any format whatsoever, in any stage of development and whether now known or hereafter to be developed including, without limitation, modifications, enhancements, designs, concepts, techniques, methods, ideas, flow charts, coding sheets, notes, processes, know-how, technical specifications, design rights and all other information derived from or relating to the Experience.
- “License” means the license granted by Licensor to Client pursuant to which Client is granted the non-exclusive, non-transferable, non-sublicensable, revocable right to use the App, or a Link during the Term.
- “Link” means a link embedded on Client’s website by or on behalf of Licensor, which allows Users the opportunity to interact with the Experience and to access the resources available in the version of the Experience purchased by Client.
- “Parties” and “Party” have the meanings respectively ascribed thereto in the recitals.
- “Term” has the meaning ascribed thereto in Section 1.
- “User” means any legal or natural person who or which interacts with the Experience through the link or the App.
- “Client Materials” means the trademarks, trade names, logos and other text, images and content provided by Client to Licensor for use in connection with the App and the Experience.
- “Contest Entries” means entries into Client’s contests hosted by Licensor in the App as part of the Services.
- “End User Data” means any data or information collected about an identifiable user of the App, including without limitation any Contest Entries.
- Article 2 – SERVICES AND LICENSE
- Provision of Services. Licensor shall develop, maintain, host, and make available the App in accordance with the specifications in Schedule A. Licensor represents and warrants to Client that: (i) it will perform the Services with the care, diligence and skill that a prudent, professional service provider experienced in providing services in accordance with prevailing standards would exercise in dealing with matters of a similar nature, complexity and duration, using relevant knowledge and skill that a similar service provider ought to possess; (ii) it will perform the Services in accordance with the Agreement, and prevailing industry standards for comparable services.
- Client Materials. Client owns all right, title and interest, including all Intellectual Property Rights in and to the Client Materials. Client hereby grants to Licensor a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to copy, reproduce, display, publicly perform the Client Materials solely for the purposes of providing the App and the Services during the Term.
- Ownership of Intellectual Property Rights. Licensor owns the Intellectual Property Rights necessary to grant the License. The License does not convey to Client any ownership interest in and to any or all of the Intellectual Property Rights or in and to any or all of the Inventions.
- Grant of License. Licensor hereby grants to Client the License set out in Schedule “A” and Client accepts same.
- Article 3 – TERM AND TERMINATION
- Term. Unless otherwise terminated due to an Event of Default, this Agreement shall commence as of Effective Date (the “Term“) and shall end on as per the submission form completed by the Client.
- Consequences of Termination. The License shall expire and the Link or App features shall be disabled forthwith upon the expiry or earlier termination of the Term, without notice to Client.
- Article 4 – OBLIGATIONS OF CLIENT
- Restrictions. Client shall not at any time directly or indirectly copy, expand, modify, adapt, improve, circumvent any technological measure that controls access to, develop, create derivative works or products based upon, or reverse engineer the Experience, the Link, the App or any of their respective component parts. Client shall not change, distort or delete, any copyright, patent, or other proprietary notices of Licensor which appear in or in relation to, the Experience, the App or to Links related to it.
- Timely Payment. Client shall pay each instalment of the Fee when due. Client shall pay Licensor the entire portion of the Fee due and resulting from per-User access notwithstanding the early termination of this Agreement due to an Event of Default.
- Release. Client hereby releases Licensor and those for whom Licensor is in law responsible (the “Released Parties”) from all Claims sustained by, or caused to others by, Client offering the Experience and App to Client further agrees to provide, approve and take full responsibility for all relevant Terms and Conditions pertaining to Client own events, contests, sweepstakes and Licensor shall not be held liable for any failure of such. All Entries from such events, contest, sweepstakes become the property of the Client and are deleted from the cloud-based database within two weeks of expiration of this Agreement . Entries are received and stored in a cloud-based storage in North America and distributed with encryption at the end of the term or as otherwise requested by the Client. Such events will be a subject to all applicable federal, provincial/territorial and municipal laws. The Released Parties will not be liable for: (i) any failure of the App during the contest; (ii) any technical malfunction or other problems of any nature whatsoever, including, without limitation, those relating to the telephone network or lines, computer on-line systems, servers, access providers, computer equipment or software; (iii) the failure of any Entry or other information to be received, captured or recorded for any reason whatsoever, including, but not limited to, technical problems or traffic congestion on the internet or at any website or app cloud server; (iv) any injury or damage to an entrant’s or any other person’s computer or other device related to or resulting from participating in the contest; (v) The Client will have two weeks testing period and access to a support email throughout the term of the Agreement, that could be shared with patrons. Client acknowledges that no changes to the app will be made outside of the Licensing Terms.
- The Right to Approve/ Disprove Content. Client acknowledges that the Licensor has to abide rules set by external third parties, such as Google and Apple. Client agrees that Licensor has the right to disprove content due to strict regulations. Such content may include, but not limited to, violent, gaming and lottery, not kids rated, misleading and inaccurate information etc. Licensor will work with Client on alternative solutions.
- Limitation of Liability. Client agrees that Licensor shall not be held liable for any failure of the software underlying the Experience, the App or the Link, or results from the use of such by the Client or its customers. Client acknowledges that Licensor has not and shall not make any representations or warranties as to the success or popularity of the Experience and as such, holds Licensor harmless from any Claims relating to business losses or to consequential or special damages arising, caused by or resulting from, the License.
- Binding Agreement. Client shall ensure compliance with the provisions of this Agreement by its subsidiaries, affiliates and parents, as applicable, and by the subsidiaries, affiliates and parents, as applicable, of any individual or entity on behalf of whom or which Client has entered this Agreement.
- Survival. The provisions of this Article 5 shall survive the expiry or early termination of this Agreement.
- Article 5 – General
- Dispute Resolution. Matters not amicably resolved between the Parties shall be submitted to mediation before a mediator chosen by the parties or selected pursuant to the Commercial Mediation Act, 2010 (Ontario). Matters not successfully mediated shall be settled by arbitration. The arbitration shall be conducted under the Act. The arbitration shall be held and the award made in Toronto, Ontario. The arbitrator shall be chosen by agreement of the Parties. In the event that the Parties cannot agree on an arbitrator, the arbitrator shall be selected pursuant to the Act. The decision of the arbitrator shall be binding on all Parties, and judgment upon the award rendered by the arbitrator may be entered in any court of appropriate jurisdiction. If a Party is seeking injunctive relief or specific performance, that Party may apply to a court of competent jurisdiction for such equitable relief.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario.
- Recitals and Schedules. The recitals and any schedules hereto form an integral part hereof.
- Severability. Each of the provisions of this Agreement shall be severable from all other provisions and invalidity of any part hereof shall not affect the validity of other parts of this Agreement.
- Further Assurances. Each Party shall execute such further and other documents and instruments and do such further and other acts as may be necessary to implement and carry out the provisions and intent of this Agreement.
- Time. Time shall be of the essence of this Agreement.
- Non-Waiver. Waiver by any Party of any breach or failure to comply with any provision of this Agreement by the other Party shall not be construed as, or constitute, a continuing waiver of such provision or a waiver of any other breach of or failure to comply with any other provision of this Agreement.
- No Assignment. This Agreement may not be assigned by Client without the prior written consent of Licensor.
- Enurement. The provisions of this Agreement shall enure to the benefit of and be binding upon the Parties and, in the event of an assignment, upon their respective successors and assigns.
- Entire agreement. This Agreement sets forth the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior written, oral or electronic communications relating to this subject matter. This Agreement may only be modified in writing, signed by both Parties.
- Counterparts/Electronic Signatures. This Agreement may be executed in counterparts and/or by electronic means, each of which shall be deemed an original, but all of which shall constitute one agreement.
Mirable Inc. Team will be happy to answer any questions you may have regarding the disclaimer and other policies enclosed herein. Please feel free to contact us at the email address below.
48 Broadpath Road
Email Address: email@example.com
Last Updated: August 08, 2022