Ballast End User License Agreement

In order to obtain and use the Ballast Licensed Product, you must first agree to the terms of this agreement (the “Agreement”).  If you agree to the terms of this Agreement, you may use the Ballast Licensed Product solely in accordance with the terms and conditions hereof.  If you do not agree to the terms of this Agreement, then you may not use the Ballast Licensed Product. 

This agreement is also subject to the terms set out in the warranty section for DIVR, found on ballastvr.com/warranty

1. PURPOSE

You may only use the Ballast Licensed Product for the purpose of enabling individuals to experience Ballast’s proprietary virtual reality on your premises and under your control (the “Purpose”).  The Ballast Licensed Product includes and is limited to Ballast’s proprietary software virtual reality platform (as may be updated from time to time by Ballast in its sole discretion), including but not limited to the user experience, user interface, store, and social features, usable on Ballast approved hardware or any third-party device or operating system.

2. LICENSE

2.1. Subject to the terms and conditions of this Agreement, Ballast Technologies, Inc. with offices at 498 Alabama Street, San Francisco CA 94110 (“Ballast”) hereby grants to you a worldwide, non-exclusive, non-transferrable license to use, reproduce and distribute the Ballast Licensed Product in binary or object code form only solely for the Purpose.  This includes a non-exclusive license and right for you to use, perform and display content supplied by Ballast or its licensors from time to time in Ballast’s sole discretion (“Ballast Content”) through the Ballast Licensed Products.

3. OWNERSHIP

Ballast retains all rights to the Ballast Licensed Product, Ballast Content and any services (“Ballast Services”) made available by Ballast to you in connection with this Agreement.

4. RESTRICTIONS

4.1 You agree that as a condition of this Agreement you will ensure that your use of the Ballast Licensed Product, Ballast Content and Ballast Services (collectively, the “Ballast Offerings”) does not, and you will not, alter or interfere with the normal operation, behavior or functionality of any of the Ballast Offerings, including: (i) the behavior of any features or functionality implemented by or for any Ballast system software; (ii) any on-screen messages or information; (iii) the settings and behavior of any sensors in the Ballast hardware implemented by the Ballast system software; or (iv) Ballast hardware or software security features.  You also agree not to commit any act intended to interfere with the normal operation of any Ballast Materials, or provide software for use with any Ballast Materials that would induce breach of any Ballast agreements or that may contain malware, viruses, hacks, bots, Trojan horses, or other malicious code.

4.2 You may not use the Ballast Licensed Product for any purpose not expressly permitted by this Agreement. You may not: (a) decompile, (b) reverse engineer, (c) disassemble, or (d) attempt to derive the source code of the Ballast Licensed Product or any part of the Ballast Licensed Product.

4.3 You may not alter, modify the Ballast Content and you may not distribute any Ballast Content other than in conjunction with the Ballast Licensed Product for the Purpose.  You will not remove, obscure, or alter any Ballast license terms, policies or terms of service or any links to or notices thereto.

4.4 The Ballast Content may only be used with the Ballast Licensed Product and may not be used, licensed, or sublicensed to interface with software or hardware or other commercial headsets that are not authorized and approved in writing by Ballast. 

4.5 You must include with all such redistributed or sublicensed Ballast Licensed Product code the following copyright notice: “Copyright © Ballast Technologies, Inc. and its affiliates. All rights reserved.”

4.6 This Agreement does not grant permission to use the trade names, trademarks, service marks, or product names of Ballast, except as required for reasonable and customary use in describing the origin of the Ballast Licensed Product and Ballast Content.  Ballast reserves all rights not expressly granted to you under this Agreement. Neither the name of Ballast nor its  licensors, employees, or contractors, may be used to endorse or promote products or services used in conjunction with the Ballast Offerings without specific prior written permission of Ballast.

5. BALLAST SERVICES

5.1 Ballast may provide you with Ballast Services, limited to services provided by Ballast associated with the Ballast Licensed Product, including but not limited to customer support, technical support, BallastCare warranty support, data analytics, operation consultation, marketing and advertising, which may be updated by Ballast from time to time in its sole discretion.

5.2 You hereby grant Ballast the limited authorization reasonably necessary for Ballast’s exercise of its rights and performance of its obligations under this Section 5. You agree that Ballast may use its contractors and affiliates for the purposes of exercising its rights set forth in this Section 5.

6. GENERAL PROVISIONS

6.1 Ballast’s Standard Limited Warranty does not cover: (a) defects or damage resulting from accident, misuse, abnormal use, abnormal conditions, improper storage, exposure to liquid, exposure to sunshine, moisture, dampness, sand or dirt, neglect, or unusual physical, electrical or electro-mechanical stress; (b) scratches, dents and cosmetic damage, unless caused by Ballast; (c) defects or damage resulting from excessive force or use of a metallic object when pressing on a touch screen; (d) equipment that has the serial number or the enhancement data code removed, defaced, damaged, altered or made illegible; (e) ordinary wear and tear; (f) defects or damage resulting from the use of Product in conjunction or connection with accessories, products, or ancillary/peripheral equipment not furnished or approved by Ballast; (g) defects or damage resulting from improper testing, operation, maintenance, installation, service, or adjustment not furnished or approved by Ballast, including but not limited to installation of unauthorized software and unauthorized root access, both of which shall void this limited warranty; (h) defects or damage resulting from external causes such as collision with an object, fire, flooding, dirt, windstorm, lightning, earthquake, exposure to weather conditions, theft, blown fuse, or improper use of any electrical source; (i) defects or damage resulting from cellular signal reception or transmission, or viruses or other software problems introduced into the Product; (j) defects or damage resulting from damage of the hardware including the waterproof case. This Standard Limited Warranty covers batteries only if battery capacity falls below 80% of rated capacity or the battery leaks, and this Standard Limited Warranty does not cover any battery if (i) the battery has been charged by a battery charger not specified or approved by Ballast for charging the battery; (ii) any of the seals on the battery are broken or show evidence of tampering; (iii) the battery has been used in equipment other than the Ballast device for which it is specified; or (iv) the device with the battery has been charged in a facility that has been kept in a non air-conditioned environment or in an air-conditioned environment where the temperature exceeded 22 degrees Celsius / 71.5 degrees Fahrenheit or fell below 10 degrees Celsius / 50 degrees Fahrenheit for any amount of time while charging.

6.2 THE BALLAST OFFERINGS AND ANY COMPONENT THEREOF ARE PROVIDED “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL BALLAST OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THE BALLAST OFFERINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO YOU MAY HAVE ADDITIONAL RIGHTS.

6.3 You are responsible for ensuring that your use of the Ballast Offerings complies with all applicable laws (including privacy laws). You acknowledge and agree that you are solely responsible for any health and safety issues arising from your use of any Ballast Offerings. 

6.4 Your acceptance of the terms and conditions of this Agreement in and of itself may be evidenced by any of the following: your usage of the Ballast Licensed Product, or acceptance of this Agreement.  As this Agreement is updated for future releases of the Ballast Licensed Product, you agree to abide by and meet all requirements of future updates of this Agreement for those future Ballast Licensed Product releases, with acceptance evidenced by usage of the Ballast Licensed Product or any element thereof and the future updates of this Agreement will apply on a prospective basis.  This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof.  This Agreement supersedes all prior written or oral agreements, communications, and understandings between the parties with respect to the subject matter hereof.  Except for Ballast’s right to update this Agreement as described in this Section 6.3, neither party may amend or modify this Agreement without the express written consent of the other party.  

6.5 Ballast reserves the right to terminate this Agreement and all your rights hereunder immediately in the event you materially breach this Agreement. 

6.6 You agree to fully indemnify Ballast from any and all losses, costs, damages and expenses (including reasonable attorney's fees) arising out of your violation of any terms and conditions of this Agreement. 

6.7 Ballast may discontinue or change functionality of the Ballast Offerings at any time, and your continued use thereof or use of any modified or additional Ballast Offerings is conditioned upon your adherence to the terms of this Agreement, as modified by Ballast from time to time.

6.8 In the event any provision of this Agreement is determined to be invalid, prohibited or unenforceable by a court or other body of competent jurisdiction, this Agreement shall be construed as if such invalid, prohibited or unenforceable provision has been more narrowly drawn so as not to be invalid, prohibited or unenforceable.

6.9 You may not assign any rights or obligations under this Agreement without the advance written consent of Ballast, which may be withheld in its sole discretion. Ballast may assign its rights or obligations under this Agreement in its sole discretion.

6.10 Failure of either party at any time to enforce any of the provisions of this Agreement will not be construed as a waiver of such provisions or in any way affect the validity of this Agreement or parts thereof.

6.11 Your remedies under this Agreement shall be limited to the right to collect money damages, if any, and you hereby waive your right to injunctive or other equitable relief.

6.12 You will comply, and will not cause Ballast to not comply with all applicable export control laws of the United States and any other applicable governmental authority, including without limitation, the U.S. Export Administration Regulations. You agree that this Agreement and the Ballast Licensed Product and accompanying documentation are Ballast's confidential information (and is not publicly available), and you will not use it, disclose it or make it available to others except in accordance with the terms of this Agreement.

6.13 This Agreement shall be governed by the laws of the State of California, without giving effect to choice of law principles. All disputes relating to this Agreement shall be resolved by binding non-appearance-based arbitration before a neutral arbitrator in Santa Clara, California. The arbitration shall be conducted in accordance with the rules and procedures of JAMS then in effect, and the judgment of the arbitrator shall be final and capable of entry in any court of competent jurisdiction. You and Ballast agree to submit to the personal jurisdiction of the courts located within Santa Clara, California in connection with any entrance of an arbitrator’s judgment or decision or any dispute with respect to the arbitration process or procedure or Ballast’s exercise of its equitable rights or remedies.