RealWear Cloud Software as a Service Agreement
July 1, 2023
These terms and conditions govern your access to RealWear Cloud and this SaaS Agreement and the following agreements are the only agreements between REALWEAR, INC. and you as the Customer (collectively the “SaaS Agreement”):
SaaS Agreement
Data Processing Agreement located at the following link: https://www.realwear.com/legal/rwc-data-processing-addendum/ (“DPA”)
To subscribe for RWC Pro or RWC Enterprise, you must contact REALWEAR or a REALWEAR reseller or distributor for a quote (“Quote”) based on your specific user license needs. RWC Basic is provided based upon the terms of the Free Trial License only as set forth in this SaaS Agreement. This SaaS Agreement is intended to be integrated and incorporated by reference into any Quote for RWC Pro or RWC Enterprise, and when accessing the Service and/or accepting the Quote, you also agree to accept, and be legally bound by, the SaaS Agreement and its terms and conditions. Your standard terms and conditions, or other deviations from the SaaS Agreement, shall not apply, even if attached to the Quote upon your acceptance.
If you register for a Free Trial License, the SaaS Agreement will also govern that Free Trial License.
THE SaaS AGREEMENT AND ITS TERMS TAKES EFFECT WHEN YOU HAVE ACCEPTED A QUOTE FROM REALWEAR OR A REALWEAR AUTHORIZED RESELLER OR DISTRIBUTOR OR START USING THE SERVICE, WHICHEVER ACCURS FIRST.
The Service is a generic product and the DPA sets forth the obligations for data processing activities performed with the Service. REALWEAR makes the commitments stated in the DPA to all Customers using the Service, and you agree that the DPA governs the processing and security of all personal data which is stored and processed through the Service. If you as data controller require any further action to protect personal data, you must contact REALWEAR to agree on additional actions. All such actions must be agreed in writing as a supplement to the DPA before REALWEAR can submit and adhere to such actions.
Please read through the SaaS Agreement and the DPA. You represent to us that you are lawfully able to enter into this SaaS Agreement, and if you are entering into this SaaS Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to the SaaS Agreement, and the terms “you” shall refer to such entity. If you do not have such authority, or if you do not agree with the terms and conditions, you must not accept this SaaS Agreement, and you may not use the Service.
This SaaS Agreement and its terms replaces all previous terms and conditions for license to use RealWear’s Foresight License Agreement, and shall apply to all trials, purchases or renewals of Subscriptions as of July 1, 2022.
The SaaS Agreement is a legally binding agreement between REALWEAR, INC., a corporation duly organized and existing under the laws of the state of Washington, located at 600 Hatheway Road, Suite 105, Vancouver, WA 98661 (“REALWEAR”) and you as the Customer for the REALWEAR Cloud software.
The Service is provided business to business.
The SaaS Agreement is accepted by the Customer and replaces all previous agreements between REALWEAR and the Customer regarding the Service and any Customer Care Support Services. This SaaS Agreement and its terms replaces all previous terms and conditions for license to RealWear’s Foresight License Agreement, and shall apply to all trials, purchases or renewals of Subscriptions as of July 1, 2022.
Definitions
1.1 In the SaaS Agreement the following capitalized terms have the respective meanings set forth below; terms in the plural shall also include the singular and vice versa:
“Customer” means a Party accessing or using the Services.
“Customer Care” means the online support and helpdesk support services offered by REALWEAR (“Support Services”) as defined in Schedule 1, Service Level Agreement (“SLA”).
“Device”means the assisted reality devices sold or offered for sale by REALWEAR.
“DPA” means the Data Protection Agreement located at: https://www.realwear.com/legal/rwc-data-processing-addendum/
“Device Control Licenses” means the number of Devices managed within RWC Pro or RWC Enterprise.
“Free Trial License” means an access right to the Service, free of charge, which is limited in scope for all RWC Basic Customers or an access right to the Service, free of charge, and further to the restriction for a License for all RWC Pro or RWC Enterprise Customers. RWC Pro or RWC Enterprise Free Trial Licenses may be limited in time as set forth in a Quote.
“License” means a right to access the Service as a RWC Basic, RWC Pro or RWC Enterprise Customer and any applicable Device Control Licenses.
“Party” means REALWEAR or the Customer individually, and collectively the “Parties”.
“Quote” means the offer from REALWEAR or a REALWEAR authorized reseller or distributor to the Customer for a particular number of RWC Pro or RWC Enterprise Licenses, related Device Control Licenses and the scope of the Service and Support Services which includes the Subscription Fee and Subscription Period.
“RWC Enterprise” means access to the Service, including Device management, basic and expanded data metrics, remote firmware management and remote Device control (RealWear Cloud Assistance powered by TeamViewer) in a web portal, purchased as part of the RWC Enterprise Subscription.
“RWC Pro” means access to the Service, including Device management, basic and expanded data metrics, remote firmware management and remote Device control (RealWear Cloud Assistance powered by TeamViewer) in a web portal, purchased as part of the RWC Pro Subscription.
“RWC Basic” means access to the Service, including Device management, basic Device metrics and remote app install in a web portal, available to all REALWEAR Device owners.
“SaaS Agreement” means these terms and conditions as part of the SaaS Agreement, Schedule 1 and the DPA.
“Service” means access to use the REALWEAR Cloud web portal for administering, monitoring and maintaining REALWEAR Devices, including any applicable apps, add-ons or plug-ins, as purchased by the Customer, which are offered as a software operated through an internet-based interface (Software as a Service).
“Subscription” means the method applied for the Customer’s purchase of RWC Pro or RWC Enterprise offerings under the SaaS Agreement for a Subscription Period against payment of a Subscription Fee; a Subscription may include several Device Control Licenses.
“Subscription Fee” means the Customer’s payment for using RWC Pro or RWC Enterprise and the applicable Device Control Licenses.
“Subscription Period” means the binding period for the Customer’s purchase of RWC Pro or RWC Enterprise and the applicable Device Control Licenses.
“Third-Party Solutions” means third party software which is not integrated into the Service including, but not limited to, software solutions promoted by REALWEAR for payment services, or third party platform services applied for usage of the Service.
“User” means a person accessing and using RWC Pro, RWC Enterprise or RWC Basic.
“User Guide” means REALWEAR’s applicable user guide to the Service as published by REALWEAR on its website.
“User License” means the License purchased by a RWC Pro or RWC Enterprise Customer.
1.2 The SaaS Agreement will be interpreted according to the plain meaning of its terms without any presumption that it should be construed in favor of or against either Party. All headlines for each section are intended solely for the Parties’ convenience, and none will affect the meaning of any provision. The words “herein”, “hereof” and words of similar meaning refer to the SaaS Agreement as a whole. All references to “days” refer to calendar days, unless otherwise expressly set forth in the SaaS Agreement. Any reference to any legislative provision shall be deemed to include any subsequent re-enactment or amending provisions.
The Service and Licenses
2.1 The Service
2.1.1 REALWEAR makes the Service available to the Customer pursuant to this SaaS Agreement. For RWC Pro and RWC Enterprise Users, 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 Customer can create a workspace on the Service with customized content and the Customer can open its workspace portal for all Users invited by the Customer, whether it is employees of the Customer and its affiliates, its own customers, or other third parties, all at the discretion of the Customer.
2.1.3 The Service is offered as a standard generic software, and the Subscription is not contingent on the delivery of any future functionality or feature. REALWEAR does not take any responsibility for the Customer’s customization of the Service.
2.1.4 REALWEAR will provide updates and upgrades at its discretion, all in accordance with the SLA.
2.1.5 From time-to-time the Service may include updates and new features in the form of preview programs in order to provide Customers the opportunity to evaluate and understand new features before they become part of the standard Service. During this phase, we invite Customers to take part in early access to new concepts and features, however, this phase does not include formal Support Services.
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 SaaS Agreement, including, without limitation, payment of any and all applicable Subscription Fees, REALWEAR hereby grants to the Customer, subject to the restrictions in Section 4 below, a non-exclusive, non-transferable License, limited in scope and for the duration of the Subscription Period, or applicable Free Trial License, with a right of use to the Service according to the terms in this SaaS Agreement.
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 Quote, whichever occurs first, and this SaaS Agreement by the Customer and runs until terminated in accordance with the terms in this SaaS Agreement.
2.2.3 The Subscription is based on the License purchased by Customer. The Customer may grant access to the Service to any number of Users. 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 in the workspace created within the Service. The Customer shall (a) ensure that the Service is used only in accordance with the User Guide and this SaaS Agreement, (b) prevent unauthorized access or use, 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.
2.2.5 Free Trial Licenses
2.2.5.1 Free Trial Licenses may be accessed by any RWC Basic Customer at any time and for any duration in which the Service is available by REALWEAR. Free Trial Licenses for RWC Pro or RWC Enterprise Customers, may be applied for on the earlier of (a) the end of the free trial period offered with the Free Trial License under any Quote, or (b) prior to the start date for any paid Subscription of a License. Acceptance of additional terms and conditions in addition to this SaaS Agreement may be required to obtain a Free Trial License. RWC Pro and RWC Enterprise Customers opting not to purchase a Subscription will automatically revert to a RWC Basic License.
2.2.5.2 THE FREE TRIAL LICENSE IS OFFERED “AS IS” WITHOUT ANY QUALIFICATIONS, WARRANTIES, OR SUPPORT SERVICES, AND REALWEAR DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. REALWEAR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. REALWEAR DOES NOT WARRANT THAT THE REALWEAR CLOUD PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE REALWEAR CLOUD PLATFORM WILL BE SECURE OR UNINTERRUPTED. THE FREE TRIAL LICENSE SHALL EXCLUDE ALL CUSTOMER RIGHTS OF REMEDIES, INCLUDING THE REMEDIES STATED IN SECTION 11. THE LIABILITIES OF REALWEAR SHALL BE LIMITED AS STATED IN SECTION 13. NOTWITHSTANDING SECTION 13.3, FOR ANY FREE TRIAL LICENSE ACCESSED BY RWC BASIC CUSTOMERS, THE LIABILITY OF REALWEAR SHALL NOT EXCEED USD $100.00.
Third Party Applications
3.1 Customers who have accepted the terms of this SaaS Agreement and the RealWear Developer Agreement (collectively the “Developer Agreements”) may be granted access to the RealWear App Catalog portion of the platform for Customer to upload private and public applications, subject to the requirements in this Section 3.
3.1.1 Customer may upload apps that are private to Customer without any testing or certification required or performed by RealWear.
3.1.2 Applications that are uploaded for public use by all RealWear Cloud users, are subject to testing and certification by RealWear and may not be uploaded by Customer without the prior written approval of RealWear, which RealWear may accept or reject such approval in its sole discretion.
Restrictions
Price and Terms of Payment
5.1 The Subscription Fee for the License to the Service is according to REALWEAR’s current price list and based on the number of User Licenses and applicable Device Control Licenses subscribed for by the Customer.
5.2 The Subscription Fees are pre-paid annually and shall be invoiced on the first day of a Subscription Period and on each subsequent one year anniversary. Paid Subscription Fees are non-refundable.
5.3 Payment terms for purchases made directly through REALWEAR are 30 days after invoice date. The Parties may agree on other fees and payment terms if stated in the Quote, a Quote to renew Subscription, or an appendix to the Quote. 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.
5.4 Payment terms for purchases made through a REALWEAR authorized reseller or distributor are subject to the terms of the Quote and/or agreement between Customer and such REALWEAR authorized reseller or distributor.
Expiry and Termination
6.1 Subscription Period
6.1.1 The Subscription Period is binding upon both REALWEAR and the Customer, meaning the Customer cannot terminate the Service and this SaaS Agreement during a Subscription Period. Notwithstanding the above, the Customer may terminate the Subscription due to a material breach of this SaaS Agreement by REALWEAR that is not timely cured within the applicable cure period, or if a material change to the terms and conditions of the SaaS Agreement comes into force that materially negatively impacts Customer’s use of the Service, and if the Customer is not in breach of the SaaS Agreement, REALWEAR will refund a pro-rata portion of the Subscription Fees for the remaining un-used period of the Service.
6.1.2 The Subscription Fee for the Subscription Period is defined in the Quote. The Customer may add Device Control Licenses during the Subscription Period but may not scale down the number of Device Control Licenses during the Subscription Period.
6.1.3 The initial Subscription Period shall be defined in the Quote 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 Quote, 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 5.2.
6.1.4. The Subscription may also be scaled down by the Customer with a notice of no less than 60 days prior to renewal.
6.2. Termination Upon Customer’s Breach
6.2.1 In the event that the Customer is in breach of any term, condition or provision of this SaaS Agreement or in case of the Customer’s insolvency or bankruptcy, REALWEAR may, at its discretion, terminate this SaaS Agreement or suspend or downgrade the Service without any notice.
6.3 Consequences of Termination
6.3.1 Upon termination of this SaaS Agreement, for whatever reason, the Customer shall discontinue any and all use of the Service immediately.
The Customer's Data and Customer's Warranty
7.1 The Customer shall own all data uploaded by the Customer, including reports, statistics, apps, and other data to the extent generated solely from Customer’s data. REALWEAR shall perform its duties as data processor in accordance with the DPA.
7.2 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, content and other materials that are uploaded, posted, delivered, provided or otherwise 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.
7.3 If Customer is granted access to the RealWear App Catalog as set forth in Section 3 above, Customer warrants that it will not exploit any open-source software in any application Customer uploads to the RealWear App Catalog, that such application is not in violation of any license for open source software that did not allow further distribution and disclosure of source code, and that the application does not infringe on the rights of any third party’s intellectual property.
7.4 The Customer may not submit to or use the Service to collect, store or process sensitive personal data. All data uploaded shall comply with this SaaS Agreement and the DPA.
7.5 The Customer grants to REALWEAR a worldwide, non-exclusive, royalty-free, non-sublicensable right and license to copy, use, display, modify, distribute, create derivative works of, store, aggregate, or compile Customer’s data for purposes of delivering the Service, and subject to the DPA. The Customer also grants to REALWEAR a worldwide, perpetual, irrevocable, non-exclusive, royalty-free license to use the Customer’s data to create aggregated and anonymous data, including reports, statistics or analyses created for the purpose of improving the functionalities, performance, and services offered in the Service. Customer hereby grants to REALWEAR a royalty-free, worldwide irrevocable, perpetual, sublicensable and transferable license to copy, display, modify, distribute, create derivative works of, use and incorporate into the Service any suggestions, recommendations, or other feedback provided by the Customer to REALWEAR with respect to the Service.
7.6 REALWEAR and its employees and/or agents shall be entitled to access Customer’s workspace on the Service when required to provide basic Support Services and Customer Care to the Customer.
Confidentiality
8.1 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 SaaS Agreement. 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; (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 Customer’s workspace portal 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
9.1 REALWEAR is entitled to continuously make updates and improvements to the Service. REALWEAR is also entitled to change the composition and structure of the Service and the Customer Care provided. Such updates, improvements, and changes may occur with or without notice and may affect the Service, including information and data uploaded to or submitted by the Service.
Intellectual Property Rights
10.1 REALWEAR reserves all right, title and interest in and to the Service and the User Guide, and all associated intellectual property rights, including full copyright in and to the Service and the User Guide, 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.
10.2 Except for the limited license rights expressly granted under this SaaS Agreement, the Customer is not granted any other rights in the Service and the User Guide. 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.
10.3 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.
10.4 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
11.1 REALWEAR has the right to use or assign its obligations under this SaaS Agreement 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
12.1 REALWEAR warrants that the Service will perform materially in accordance with the applicable User Guides under normal use and circumstances. The functionality of the Service will not materially decrease during a Subscription Period. REALWEAR warrants that the Service uptime is in accordance with good industry practice for hosting a professional internet-based software as a service.
12.2 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.
12.3 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.
12.4 REALWEAR shall 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.
12.5 Customers sole and exclusive remedy and REALWEAR’s entire liability shall be as follows (i) for defaults in uptime availability outside of the terms set forth in the SLA, Customer may terminate the SaaS Agreement in such cases where REALWEAR fails to achieve the availability percentage for six (6) consecutive calendar months after Customer provides notice to REALWEAR, and (ii) for a material default in the Service, REALWEAR shall correct the default to the features and functionality in the Service so that it materially performs in accordance with the applicable User Guide and, if REALWEAR is unable to provide such Service within a commercially reasonable time following receipt of written notice of breach, the Customer shall be entitled to terminate the SaaS Agreement 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
13.1 Except for licenses to third party components which have been integrated into the Service, 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.
13.2 Provided the Customer complies with the procedures in this Section 13.2, 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 this SaaS Agreement 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 13.2 states REALWEAR’s entire liability and Customer’s exclusive remedy for any claim of intellectual property infringement.
13.3 Provided that REALWEAR complies with the procedures in this Section 13.3, 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 the SaaS Agreement 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 13.3 states the Customer’s entire liability and REALWEAR’s exclusive remedy for any claim of intellectual property infringement.
Liability, Exclusions and Limitations of Liability
14.1 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 14 with its limitations and exclusions are in effect to the maximum extent permitted by applicable law.
14.2 EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S INFRINGEMENT OF REALWEAR’S INTELLECTUAL PROPERTY RIGHTS OR (B) CUSTOMER’S BREACH OF SECTION 4, 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.
14.3 EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S INFRINGEMENT OF REALWEAR’S INTELLECTUAL PROPERTY RIGHTS, (B) CUSTOMER’S BREACH OF SECTION 4, (C) CUSTOMER’S BREACH OF SECTION 5, OR (D) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 14, THE MAXIMUM AGGREGATE LIABILITY OF A PARTY TOWARDS THE OTHER PARTY, UPON ANY CLAIMS WHATSOEVER, ARISING OUT OF THE SERVICE OR CUSTOMER CARE UNDER THIS SAAS AGREEMENT (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.
14.4 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 14.2 and 14.3 shall also apply to any product liability.
14.5 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
15.1 Applicable Law: This SaaS Agreement and its Schedules 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 this Agreement.
15.2 Disputes and Venue: Any dispute relating to this SaaS Agreement (“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.
15.3 Right to injunctive relief: Notwithstanding Section 12 and Sections 14.2and 15.2, each Party acknowledges that due to the nature of the SaaS Agreement, any actual or threatened breach of the SaaS Agreement 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
16.1 Export Control and Sanctions. The REALWEAR Cloud, 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.
16.2 Anti-Corruption. In performing its obligations under this SaaS Agreement, 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.
16.3 No Waiver, Headings. Failure or neglect by REALWEAR to enforce any of the provisions of the SaaS Agreement at any time shall not be construed nor shall be deemed to be a waiver of REALWEAR’s rights under the SaaS Agreement nor in any way affect the validity of the whole or any part of the SaaS Agreement nor prejudice REALWEAR’s rights to take subsequent action. The Section headings used in this SaaS Agreement are for reference and convenience only and shall not affect the interpretation of this SaaS Agreement.
16.4 Severability. In the event that any of the provisions of this SaaS Agreement 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 Agreement shall continue to be valid between the Parties.
16.5 Change of Terms. REALWEAR may modify the terms and conditions pursuant to this SaaS Agreement with 30 days’ notice after such changes have been posted on the REALWEAR website. The Customer has the right to terminate in writing the SaaS Agreement if the terms are materially changed. Use of the Service after a change of these terms has come into force constitutes acceptance of such changed terms. It is the Customer’s obligation to keep up to date on changes to the terms. However, if the terms are materially changed to the detriment of the Customer, REALWEAR must provide a written notice of 30 days sent by email to the Customer’s contact person as registered with REALWEAR.
16.6 Independent Contractors. REALWEAR and the Customer are independent contractors. The SaaS Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
16.7 No Third Party Beneficiaries. The SaaS Agreement is 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.
16.8 Force Majeure. 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 SaaS Agreement if the event of Force Majeure continues for more than forty-five (45) days.
16.9 Remedies. Except as otherwise limited or excluded herein, all remedies in this SaaS Agreement 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.
16.10 Notices. Notices required to be sent by either Party under this Agreement 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.
16.11 Entire Agreement. The SaaS Agreement and the Quote is the entire agreement between REALWEAR and the Customer regarding the Service. In the event of any conflict or inconsistency between the provisions in the SaaS Agreement and the Quote, the terms of the Quote shall prevail, however, subject to the recital of the SaaS Agreement, that the Customer’s standard terms and conditions, or other deviations from the SaaS Agreement, shall not apply even if attached to the Quote.
Schedule 1 - RealWear Cloud Service Level Agreement
This is a Service Level Agreement for REALWEAR Cloud. This SLA identifies the expected level of support and response times for RWC Pro and RWC Enterprise Customers. There are no SLA requirements for RWC Basic Customers.
Definition of Terms
Term
Definition
Account Types and Eligibility
Types of RWC Account
Description
Online Support and Helpdesk Support
3.1 Online Support. Customers can find complete product documentation and guides plus answers to frequently asked questions on our website as follows: https://support.realwear.com/knowledge.
3.2 Helpdesk Support. Helpdesk support is available as set forth in the table below. To obtain assistance from the REALWEAR Support Team email: support@realwear.com.
Support
RWC Basic
Severity Levels and Response Times
The levels of severity, description of the support request and response times are provided below:
Request Requirements
Requests lacking the information below may not be considered as part of the Service Level agreement:
To receive Support Services and for REALWEAR to maintain the Service Level agreed, the Customer shall cooperate with REALWEAR to resolve support incidents.
The Customer shall have adequate technical expertise and knowledge of their configuration of REALWEAR’s software and provide relevant information to enable REALWEAR to reproduce, troubleshoot, and resolve the incident or issue identified by the Customer.
As a minimum, the following information shall be provided by the customer, whenever possible, to ensure REALWEAR’s ability to address support requests:
Detailed description of the issue with as much detail as can be provided.
The error message provided and exact steps to reproduce the error.
The user(s) that are affected by the issue.
Applicable screenshot or video capture.
The customer will be responsible for:
- Reporting errors promptly
- Providing sufficient information for REALWEAR to duplicate the error, assess the situation, and undertake any needed or appropriate corrective action
- Alternatively, following instructions or suggestions from REALWEAR regarding use, maintenance, upgrades, repairs, workarounds, or other related matters
- At REALWEAR’s reasonable request, the Customer will provide REALWEAR with reasonable access to the Customer’s personnel and equipment during normal business hours to discuss and assess any problems or requests for assistance
- The Customer will document and promptly report all errors or malfunctions of the Service to REALWEAR.It is the Customer’s responsibility to carry out procedures necessary at the Customers facilities for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from REALWEAR
REALWEAR must be able to reproduce errors in order to resolve them. The Customer agrees to cooperate and work closely with REALWEAR to reproduce errors, including conducting diagnostic or troubleshooting activities as reasonably requested and appropriate.
Uptime Availability
Available Percentage
Performance Metric
Measurement
9. Exclusions
Issues that arise in the following categories are outside of the scope of support offered above, and will have no Service Level Agreement:
Response to requests of Severity Level 3 or below can be delayed up to 24 hours during any holiday period.
In all cases of scheduled maintenance, as notified to the customer 48 hours in advance, and emergency maintenance where Customer is notified 4 hours in advance, are both excluded from this SLA.
Emergency maintenance carried out with less than 4 hours’ notice may be exempt, should the impact of not carrying out the maintenance cause a breach of the SLA.
Support to third party authoring tools not supported by REALWEAR.
Support to third party system or platform integration, where the integration is not developed or managed by REALWEAR.