Third Party Application Agreement
Effective Date: July 13, 2023
Mighty Immersion, Inc. (“Mighty Immersion”, the “Company”, “we”, “us” or other similar terms) provides a platform-as-a-service and related technology known as the ManageXR Platform, which enables customers to track, manage and customize their enterprise mobile virtual reality devices (as further defined below, the “Platform”).
Among other things, the Platform permits third party developers to offer and provide Third Party Applications (as defined below) to Platform users. This Third Party Application Agreement (this “Agreement”) sets forth the terms and conditions pursuant to which you may access and use those Third Party Applications in connection with your use of the Platform. This Agreement constitutes a legal agreement between you or your employer or other entity on whose behalf you enter into this Agreement (“you” “your” or “Customer”) and Mighty Immersion.
BY ACCESSING AND USING ANY THIRD PARTY APPLICATIONS, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT SELECT THE “AGREE” BUTTON OR OTHERWISE CLICK ON ANY BUTTON OR OTHER MECHANISM DESIGNED TO ACKNOWLEDGE OR ACCEPT THIS AGREEMENT, AND DO NOT ACCESS OR USE ANY THIRD PARTY APPLICATIONS IN CONNECTION WITH YOUR PLATFORM SUBSCRIPTION.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY (AN “ENTITY”), YOU ARE AGREEING TO THIS AGREEMENT FOR THAT ENTITY AND REPRESENTING TO MIGHTY IMMERSION THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU”, “YOUR”, “CUSTOMER” OR A RELATED TERM HEREIN SHALL REFER TO SUCH ENTITY AND ITS EMPLOYEES AND AUTHORIZED AGENTS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU ARE NOT PERMITTED TO ACCESS OR USE ANY THIRD PARTY APPLICATIONS.
In addition to the terms of this Agreement, other terms and policies apply to your interactions and relationship with Mighty Immersion and your use of the Platform, including (1) the ManageXR Terms of Service, SaaS Agreement, License Agreement or other contract pursuant to which you subscribe to the Platform (the “Customer Agreement”), (2) the Mighty Immersion Data Processing Addendum (www.managexr.com/legal/data-processing-addendum), and (3) certain other agreements or policies that may be presented to you with respect to other elements of the Platform (each and any of the foregoing (1) through (3) are a “Separate Agreement”). If there is any conflict between the terms of a Separate Agreement and this Agreement, then this Agreement shall control with respect to your access to and use of the Third Party Applications and the terms of the Separate Agreement shall take precedence with respect to the subject matter of such Separate Agreement, including, without limitation your use of the Platform.
- Definitions. For purposes of this Agreement, the following capitalized terms shall have the following meaning:
“Application Developer” means the person or entity that develops a Third Party Application and provides that Third Party Application to Customers.
“Application Listing Site” means the site or page operated by Mighty Immersion where Third Party Applications may be listed and made available to Customers accessing and using the Platform. Among other things, our Application Listing Site lists Third Party Applications submitted by Application Developers and allows Customers to review, access, use and deploy those Third Party Applications in connection with their use of the Platform. The Application Listing Site includes any and all successors, replacements, new versions, derivatives, updates and upgrades thereto.
“Intellectual Property Rights” means all intangible legal rights, titles and interests evidenced by or embodied in all: (i) inventions (regardless of patentability and whether or not reduced to practice), improvements thereto, patents, patent applications, patent disclosures, together with all reissuances, continuations, continuations in part, revisions, extensions and reexaminations thereof; (ii) trademarks, service marks, trade dress, logos, trade names, corporate names, together with translations, adaptations, derivations and combinations thereof, including goodwill associated therewith, and applications, registrations, and renewals in connection therewith; (iii) any work of authorship (regardless of whether copyrightable), copyrightable works, copyrights (including moral rights), and applications, registrations and renewals in connection therewith; (iv) mask works and applications, registrations and renewals in connection therewith; (v) trade secrets and confidential information; and (vi) other proprietary rights and any other similar rights, in each case on a worldwide basis, and copies and tangible embodiments thereof, in whatever form or medium.
“ManageXR Platform” or the “Platform” means (i) Mighty Immersion’s proprietary platform known as “ManageXR” that is made available on a platform-as-a-service basis and related downloadable software which together enable customers to track, manage and customize their enterprise mobile virtual reality devices, (ii) the Application Listing Site and other Platform-related sites offered by Mighty Immersion for a Customer, and (iii) any related data, APIs, software, technology, programs and/or software and platform specific related services or functions that Mighty Immersion may provide to Customers from time-to-time pursuant to the terms of a Customer Agreement.
“Third Party Applications” means any applications, apps, tools and any other technology, content or digital materials that are created by an Application Developer and made available on the Platform’s Application Listing Site or otherwise provided to Customer or made available directly by an Application Developer for use by Customer in connection with the Platform. Third Party Applications also include, without limitation, any content, documentation, information, materials and/or branding contained in or provided with the Third Party Applications.
- General. The Platform permits Application Developers to share their Third Party Applications with Customer for their use in connection with the Platform. Application Developers may share and provide their Third Party Applications by: (i) posting and sharing the Third Party Applications on the Application Listing Site, or (ii) sharing or otherwise making Third Party Applications available directly to users (outside of the Application Listing Site). Mighty Immersion permits use of Third Party Applications in connection with the Platform for convenience purposes only, and Mighty Immersion assumes no responsibility for any Third Party Applications. Any use of a Third Party Application is entirely at your own risk and discretion.
- Third Party Application Legal Terms. Your access to and use of Third Party Applications is subject to all legal terms and/or privacy policies applicable to those Third Party Applications at any time, including, without limitation, any terms of service, end user license agreements, privacy terms or other terms or policies that are provided or required by an Application Developer (“Third Party Application Legal Terms”). Third Party Application Legal Terms will be presented to you via means controlled by the corresponding Application Developer, including, without limitation, passive links in the Third Party Applications, distribution via email, and/or presentation in connection with your initial access to or deployment of the Third Party Application. It is your responsibility to read all applicable Third Party Application Legal Terms before using those Third Party Applications. Your use of each Third Party Application is subject to your compliance with all Third Party Application Legal Terms governing that Third Party Application at any time; provided that such Third Party Application Legal Terms may not modify or supersede any of the terms and provisions of this Agreement or any Separate Agreements.
- No Responsibility. Mighty Immersion is not and shall not be responsible or liable for any Third Party Applications, including any possible errors, faults, interruptions or discontinued services caused by any Third Party Applications or for any loss, damage or expense which may result from any Third Party Applications. Mighty Immersion does not provide any warranties or make any representations to you with respect to any Third Party Applications. Mighty Immersion allows the sharing or provision of Third Party Applications within the Platform for convenience purposes only and such allowance does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Mighty Immersion. Mighty Immersion does not guarantee the availability of Third Party Applications and you acknowledge that Mighty Immersion may disable access to any Third Party Application at any time in its sole discretion and without notice to you. Mighty Immersion is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Application. The relationship between you and each Application Developer is strictly between you and such Application Developer, and Mighty Immersion is not obligated to intervene in any dispute arising between you and an Application Developer. Without limiting the foregoing, Mighty Immersion makes no commitments regarding, and expressly disclaims all responsibility for, the security and privacy practices of all Third Party Applications.
- Ownership. Mighty Immersion owns all right, title and interest in and to the Platform, including all Intellectual Property Rights related thereto. Nothing in this Agreement shall constitute a waiver of Mighty Immersion’s Intellectual Property Rights under any law, or be in any way construed or interpreted as such. Mighty Immersion makes no representations or warranties related to the ownership of, or rights granted related to, any Third Party Applications.
- Support. Mighty Immersion does not provide any maintenance, updates, upgrades or other support for the Third Party Applications. If you are dissatisfied with any aspect of a Third Party Application at any time, please discuss with the applicable Application Developer. Your sole and exclusive remedy shall be as set forth in the applicable Third Party Application Legal Terms and you are also encouraged to cease using the Third Party Applications if you are dissatisfied.
- Disclaimer. THE THIRD PARTY APPLICATIONS ARE OFFERED AND PROVIVED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR INTENDED OR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND/OR THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. MIGHTY IMMERSION MAKES NO WARRANTY OF ANY KIND THAT THE THIRD PARTY APPLICATIONS, OR ANY PRODUCTS OR RESULTS ARISING FROM THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH THE PLATFORM OR ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, DEVICE OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
- Indemnity; Liability. You agree that Mighty Immersion shall have no liability whatsoever for any use of the Third Party Applications by you. In addition to any indemnification responsibilities or obligations you may have under a Separate Agreement, you hereby acknowledge and agree that you shall indemnify, defend and hold harmless Mighty Immersion and its affiliates from and against all liabilities, amounts, damages, claims, alleged claims, costs and expenses, including attorney’s fees, relating to, or arising out of, or connected with (i) your use of a Third Party Application and/or your relationship with any Application Developer, and/or (ii) your breach or violation of this Agreement. MIGHTY IMMERSION IS NOT LIABLE OR RESPONSIBLE FOR ANY LIABILITIES, CLAIMS, DAMAGES OR OTHER AMOUNTS (WHETHER DIRECT OR INDIRECT) WHATSOEVER RELATED TO YOUR USE OF ANY THIRD PARTY APPLICATIONS AND/OR YOUR INTERACTIONS WITH APPLICATION DEVELOPERS. THE FOREGOING LIMITATIONS IN THIS SECTION SHALL APPLY: (I) EVEN IF MIGHTY IMMERSION HAS BEEN ADVISED OF THE POSSIBILITY OF ANY DAMAGES OR LOSSES; (II) EVEN IF ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE; AND (III) REGARDLESS OF THE BASIS OR THEORY OF LIABILITY. MIGHTY IMMERSION SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY THIRD PARTY APPLICATION LEGAL TERMS.
- Term and Termination. This Agreement shall continue until terminated as set forth in this section. You may terminate this Agreement at any time by removing all Third Party Applications from your devices and systems and destroying all copies of the Third Party Applications in your possession or under your control. Your failure to comply with this Agreement will result in automatic immediate termination of this Agreement and Mighty Immersion reserves the right to exercise any and all legal remedies with respect thereto. Mighty Immersion also reserves the right to terminate this Agreement at any time and without notice. Upon termination of this Agreement, you must (i) cease any and all further use of the Third Party Applications, and (ii) remove the Third Party Applications from all devices, hard drives, networks and other storage media (as applicable) and destroy all copies of the Third Party Applications in your possession or under your control. The provisions of Sections 3 through 11 shall survive the termination, expiration or other ending of this Agreement.
- Entire Agreement; Separate Agreements. This Agreement represents the complete and entire agreement concerning the Third Party Applications between you and Mighty Immersion and supersedes all prior agreements and representations between you and Mighty Immersion related to the Third Party Applications; provided that the Separate Agreements shall also apply as set forth above. This Agreement does not convey any rights to access or use the Platform and all use of the Platform shall be subject to your Separate Agreements. In the event you have entered into a Separate Agreement directly with Mighty Immersion that is not a standard Mighty Immersion terms of service agreement (e.g. our click-wrap Terms of Service) related to access to or use of our Platform (a “Specific Agreement”), including any agreement that is signed by Mighty Immersion and you, you acknowledge and agree that (i) this Agreement is a separate and independent agreement that only applies to your use of Third Party Applications, (ii) Third Party Applications are optional offerings that are not provided by Might Immersion and are not part of, and do not constitute, the Platform, (iii) this Agreement shall govern and apply to your use of Third Party Applications notwithstanding the terms of any Specific Agreement, (iv) this Agreement supersedes the terms of any Separate Agreement and applies separately and independently of any Separate Agreement for the Third Party Application and their use, and (v) you may not use any Third Party Applications if you do not agree to this Agreement.
- Miscellaneous. The relationship between the parties is that of independent contractors. This Agreement will not create or be deemed to create any agency, partnership or joint venture between the parties. Mighty Immersion may update this Agreement in its sole discretion from time to time and such revised Agreement shall apply when you receive notice that it is updated (with notice delivered via email or via posting on the Platform being sufficient for this purpose). In the event any provision of this Agreement is found to be legally unenforceable, such unenforceability shall not prevent enforcement of any other provision of this Agreement. This Agreement shall be governed by the laws of the State of California. The parties hereby irrevocably and unconditionally submit to the jurisdiction of state and federal courts in San Francisco, California. You may not assign this Agreement, or assign or delegate any of your rights or obligations pursuant to this Agreement without the prior written consent of Mighty Immersion, whether expressly or by operation of law, including in connection with a merger or change of control, and any such attempted assignment shall be void and of no effect. Mighty Immersion may freely assign or novate this Agreement or delegate or subcontract any rights or obligations hereunder. Mighty Immersion shall not be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by reason of acts of God, wars, terrorism, revolution, civil commotion, acts of public enemy, embargo, acts of government in its sovereign capacity, or any other circumstances beyond the reasonable control and not involving any fault or negligence of Mighty Immersion. The terms “including” shall mean “including, without limitation” unless the context clearly requires others.
BY ACCEPTING THIS AGREEMENT AND/OR ACCESSING OR USING A THIRD PARTY APPLICATION, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, PLEASE DO NOT INSTALL, ACCESS OR USE ANY THIRD PARTY APPLICATIONS.