CONFIDENTIAL
IRIS VR BETA LICENSE AGREEMENT (“AGREEMENT”)

           Effective April 21, 2016

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IRIS VR (“LICENSOR”) LICENSES THE IRIS VR SOFTWARE (“SOFTWARE”) TO YOU AND TO THE ENTITY YOU REPRESENT (COLLECTIVELY “YOU” AND “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.  PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE; BY USING THE SOFTWARE IN ANY WAY, YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN CONTRACT SIGNED BY YOU AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE FOREGOING, LICENSOR DOES NOT AUTHORIZE YOU TO USE THE SOFTWARE IN ANY WAY.

IRIS VR SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED FOR USE ONLY WITH OCULUS RIFT, HARDWARE (TO BE SUPPLIED BY YOU) AND ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.  NO RIGHT OR LICENSE IS GRANTED TO USE THE SOFTWARE AND/OR ANY ACCOMPANYING DOCUMENTATION, AND YOU SHALL NOT USE THE SOFTWARE AND/OR DOCUMENTATION, WITH ANY OTHER HARDWARE.

SOFTWARE.

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The Software provided by Licensor is being furnished to you in connection with our beta testing program (the “Beta Program”) which shall expire on a date to be determined by Licensor, estimated to be about 90 days from the commencement of the Beta Program.  You acknowledge and agree that the Software belongs to Licensor and it is being provided to you by Licensor solely in connection with this Agreement and your sole right to use the Software is based on this Agreement.

LICENSE.

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During the Term (as defined below) and under the terms and conditions of this Agreement, Licensor hereby grants You a revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, limited license to use the Software and/or any accompanying Documentation solely for Your internal business purposes.  You may not, nor may You assist another to, copy, disclose, sublicense or otherwise transfer, modify, translate, convert to another programming language, decompile, reverse engineer or disassemble any portion of the Software or use it for any illegal or improper purpose.  You may not lend or sell the Software to any third party. You shall not be entitled to hard-copy documentation, support or telephone assistance.  All rights not expressly set forth in this Agreement are reserved by Licensor.

OWNERSHIP.

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You agree and understand that this is a license agreement and not an agreement for sale, and that all right, title and interest, including all intellectual property rights, in and to the Software and Documentation are owned and reserved by Licensor or are licensed to Licensor by a third party. No license or other right of any kind is granted to You except as expressly provided in this Agreement.  Nothing in this Agreement shall be construed as conferring any license or right with respect to any of Licensor’s trademarks, trade names or brand names in any way.

CONFIDENTIALITY.

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You acknowledge that the Software is in the beta testing phase and that the Software and Documentation, as well as the performance of the Software, are proprietary in nature and contain valuable confidential information developed or acquired at great expense.  You also acknowledge that Licensor may provide to You information that Licensor has identified as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential.  Such information, the Software and Documentation are collectively referred to as “Confidential Information.”  You shall retain in confidence and not disclose the Confidential Information and will make no use of the Confidential Information except as provided under, and during the term of, this Agreement.  Notwithstanding termination of this Agreement, Your obligations under this Section with respect to  for purposes of the Beta Program. Confidentiality shall remain in effect until, and to the extent that, Confidential Information is made publicly available by Licensor without restriction.

FEEDBACK.

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From time to time during the Term, but no less frequently than monthly, You will provide to Licensor Your evaluation of the Software, including, but not limited to, the identification of any bugs or errors found in the Software and any enhancements, improvements or other proposed modifications of the Software. You agree that all intellectual property therein shall be owned by Licensor. You hereby assign to Licensor all right, title, and interest therein and to any other derivatives derived from Your access to the Confidential Information or Software.

 

           TERM AND TERMINATION.

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This Agreement shall be effective beginning on the date on which You receive the Software and shall automatically terminate thirty (30) days after the date of expiration of the Beta Program (or of your participation in the Beta Program), which shall be in Licensor’s sole discretion; Licensor will notify You by email when the Beta Program expires and will also post a notice of the expiration of the Beta Program on its website. This Agreement may also be terminated by either Party for any or no reason, such termination to have immediate effect upon notice to the other party.  Upon any termination of this Agreement, You shall cease all use of the Software, the Documentation and Confidential Information, immediately return to Licensor the Software and any tangible copies of any Documentation and Confidential Information, destroy all intangible copies of the Confidential Information (including the Software and Documentation) in Your possession or under Your control, and provide written notice of such destruction to Licensor.  The provisions of this Agreement and the Confidentiality obligations and Reporting Requirements provisions shall survive any termination of this Agreement.

DISCLAIMER OF WARRANTIES:

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THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS."  LICENSOR DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST INFRINGEMENT. YOU BEAR ALL RISK RELATING TO QUALITY AND PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION.  LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THEY WILL MEET YOUR REQUIREMENTS.

LIMITATION OF LIABILITY:

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IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY LOST PROFITS, LOST DATA, LOSS OF BUSINESS, GOODWILL OR REPUTATION, OR FOR ANY OTHER CONSEQUENTIAL, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL LICENSOR’S TOTAL CUMULATIVE LIABILITY UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING TORT, CONTRACT, NEGLIGENCE AND STRICT LIABILITY, EXCEED THE AMOUNTS PAID TO LICENSOR BY YOU UNDER THIS AGREEMENT. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of this Agreement would be substantially different.

INDEMNIFICATION.

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You acknowledge that by providing You the Software and the Documentation, Licensor does not assume any responsibility or liability for any risks associated with personal injury or injury to Your business.  Accordingly, You shall defend, indemnify and hold harmless Licensor and its officers, directors, employees and representatives from and against all claims by third parties arising out of or relating in any way to the conduct of Your business or the use of or inability to use the Software and/or the Documentation, and all associated losses, costs, damages, and settlements, including reasonable legal fees and expenses.  In the event of a claim in respect of which Licensor seeks indemnification from You, Licensor will promptly notify You in writing of the claim, cooperate with You in defending or settling the claim at Your expense, and allow You to control the defense and settlement of the claim, including the selection of attorneys.

NOTICES.

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All notices in connection with this Agreement shall be deemed given (i) on the day received by the other party when sent by email, (ii) five days after being deposited in the mail, postage pre-paid, certified or registered, return receipt requested, or (iii) one day after being sent by overnight courier, charges prepaid, with a confirming fax.  Notices to You will be sent to the email address that You provide when you sign up with Licensor to receive the Software or to such other address as You may provide to Licensor from time to time in writing.  Notices to Licensor should be sent by email to [email protected], by mail to IrisVR, Inc, 32 Cooper Square, 3rd Floor, New York, NY 10003, or to such other address as Licensor may provide to You from time to time.

EXPORT.

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You agree to comply fully with all laws and regulations of the United States and other countries ("Export Laws") to assure that neither the Software nor Documentation are (1) exported, directly or indirectly, in violation of Export Laws, or (2) used for any purpose prohibited by Export Laws.

MILITARY AND U.S. GOVERNMENT RESTRICTIONS.

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The Software and Documentation may not be used by the U.S. Government or by any military organization without express prior written consent from Licensor.

ACKNOWLEDGMENT.

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THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, VERBAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.  NO AMENDMENT TO THIS AGREEMENT SHALL BE EFFECTIVE UNLESS SIGNED BY AN AUTHORIZED REPRESENTATIVE OF LICENSOR.

MISCELLANEOUS.

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This Agreement shall be governed by and construed under the laws of the state of New York without reference to its conflict of law principles, except as governed by Federal law.  Each party agrees to submit to the exclusive and personal jurisdiction of the state and federal courts in New York. A waiver of any default is not a waiver of any subsequent default.  You may not assign or otherwise transfer this Agreement or any of Your rights hereunder without Licensor’s prior written consent, and any such attempt is void.  You shall be responsible for the payment of any taxes resulting from this Agreement. The relationship between You and Licensor is that of independent contractors.  If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement is binding upon and is for the benefit of the respective successors and assigns of the parties hereto.