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Terms and Conditions

These CaregiVR Inc. Terms and Conditions apply to all services provided by CaregiVR Inc., a company organised and existing under the laws of Ontario (“caregiVR”) to Customer (defined below). Any agreement, term sheet or cover letter executed by the parties with reference to these terms and conditions (“Engagement Document”) and these caregiVR Terms and Conditions shall be referred to herein as the “Agreement”. In the event of a conflict between these caregiVR Terms and Conditions and an applicable Engagement Document, the terms and conditions of the Engagement Document shall govern with respect to the conflict.

Unless otherwise agreed in an Engagement Document, caregiVR reserves the right to make changes to these Terms and Conditions. caregiVR will notify Customer of changes by: (a) posting a notice on its website and within the Solution for a period of 30 days before such changes will become effective (“Effective Change Date”); and/or (b) sending Customer an email notification of such changes at least 30 days prior to the Effective Change Date. As of the Effective Change Date, the most current and up to date version of this Agreement will be accessible on the website, and the continued use of the Solution or any services will signify continued acceptance to the revised Terms and Conditions.
 

1. Definitions

The follow definitions shall apply to these Terms:

1.1. “Administrator Dashboard” means the web-based portal (which may (under an applicable Engagement Document) be made available by caregiVR to certain Authorized Users of the Customer designated as administrators, which provides access to session-level usage data and reporting features related to use of the Solution.

1.2. “Authorized Users” means the employees and agents of Customer who are authorized to operate the Solution and facilitate use by End Users.

1.3. “Customer” has the meaning set out in the applicable Engagement Document.

1.4. “Customer Data” means Customer’s information (if any) that is provided through the Solution to caregiVR.

1.5. “Custom Content” means virtual reality content created or provided by caregiVR that is based on a custom request by Customer, as further detailed in an applicable Statement of Work.

1.6. “Confidential Information” means all non-public materials, documents, data and information disclosed or made available by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether oral, written, electronic, or otherwise that marked as confidential or should reasonably be understood to be confidential based on the nature of the information and its disclosure.

1.7. “caregiVR Application” means caregiVR’s proprietary application, made available to Customer on the caregiVR Provided Hardware.

1.8. “caregiVR Provided Hardware” means the off-theshelf third-party hardware components, including the caregiVR Provided Tablet and caregiVR Provided Headset and all related accessories, leased to Customer by caregiVR and used to operate the Solution. All caregiVR Provided Hardware remains the property of caregiVR.

1.9. “caregiVR Provided Headset” means the caregiVR provided VR headset.

1.10. “caregiVR Provided Tablet” means the caregiVR provided tablet, pre-loaded with the caregiVR platform.

1.11. “Documentation” means the caregiVR provided documentation detailing the functionality of the Solution, made available by caregiVR to Customer, as updated from time to time.

1.12. “Effective Date” means the effective date listed in the Engagement Document.

1.13. “End Users” means the residents of Customer that are the ultimate end user of the Solution.

1.14. “Location(s)” means the Customer location(s) agreed to in the Engagement Document.

1.15. “Personal Information” has the meaning set out in the caregiVR DPA.

1.16. “Solution” means the integrated caregiVR product offering made available to Customer under this Agreement, which includes:

(a) the caregiVR Application;

(b) the caregiVR Provided Hardware;

(c) the Administrator Dashboard (where available); and

(d) all associated software, content, documentation, updates, upgrades, and enhancements, as further described in the Documentation and the Engagement Document.

1.17. “Statement of Work” means a written document agreed by the parties that sets out the specific services, deliverables, timing, and incorporates this Agreement by reference.

2. Service

2.1. The “Services” provided by caregiVR under this Agreement consist of the following:

(a) “Implementation Services”: means the services provided by caregiVR to facilitate Customer’s on-boarding of the Solution, including the training and implementation activities set out in the Engagement Document.

(b) “Solution Access” access to the Solution as specified in this Agreement, which includes use of the caregiVR Provided Hardware, caregiVR Application, and caregiVR Dashboard (where available).

(c) “Support Services” means the support services specified in the Engagement Document.

(d) “Customization Services” means any professional services provided by caregiVR to Customer, which may include customization of content, programs or other materials. Customization Services are chargeable at caregiVR’s then current rates and in accordance with an agreed Statement of Work.

2.2. Customer agrees to, and to ensure its Users:

(a) only use the Solution solely for Customer’s internal business purpose of providing wellness-oriented experiences to End Users in accordance with this Agreement. Customer acknowledges that it is solely responsible and liable for its Authorized Users’ and End Users’ use of the Solution;

(b) only allow Authorized Users and End Users to access and use the Solution; and

(c) take reasonable precautions to protect the caregiVR Provided Hardware from theft or unauthorized access.

2.3. caregiVR may use third-party service providers, including cloud hosting and technology partners (including AI or software plug-ins), to support the provision of the Solution and related services. caregiVR remains responsible for the performance of any subcontractor acting on its behalf.

2.4. Customer may permit its Affiliates named in the applicable Engagement Document to access and use the Solution, provided that Customer remains fully responsible and liable for all acts and omissions of such Affiliates and ensures that such Affiliates comply with all terms of this Agreement as if they were the Customer.

3. Implementation Services

3.1. As part of the first-year fee, caregiVR will provide the following implementation services:

(a) delivery of the caregiVR Provided Hardware to the Site; and

(b) A one-time training workshop of up to four (4) hours for Authorized Users, to be held at a mutually agreed date and time within the first three (3) weeks of the Effective Date (unless otherwise agreed).

3.2. The Implementation Services are included in the first-year fee. Implementation Services may be reperformed or extended, subject to pre-agreed training fees. Customer agrees that it will:

(a) provide suitable space and audiovisual equipment necessary to support the delivery of the training workshop; and

(b) use reasonable efforts to ensure attendance by all relevant Authorized Users who will be responsible for operating or supervising use of the Solution, to support effective onboarding and implementation.

4. Solution Access

4.1. Subject to payment of the applicable Fees and as set out in the Engagement Document, caregiVR will provide Customer with access to the Solution via the caregiVR Provided Hardware, in accordance with caregiVR’s then-current Documentation. The caregiVR Application will be pre-loaded and may be updated remotely by caregiVR during the Term.

4.2. Customer is fully responsible and liable for its use of the Solution and for ensuring that its Authorized Users has/have the necessary training (subject to caregiVR’s obligations in Section 3,) skill, medical supervision and instruction required to facilitate End User’s use of the Solution.

4.3. In accordance with this Agreement, caregiVR grants Customer, solely for the purposes set out in this Agreement, a non-exclusive, non-transferable, revocable, non-sublicensable right and license to access and use the Solution in accordance with the requirements in this Agreement during the Term.

4.4. caregiVR expressly reserves the right to modify or amend the Solution by introducing modifications, changes, enhancements, new versions and new releases to all or part of the Solution from time to time.

4.5. The Customer will not, and will ensure that its Users do not:

(a) access, use, or attempt to use the Solution for any unlawful, harmful, or abusive purpose;

(b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any part of the Solution;

(c) use caregiVR Provided Hardware in any manner that is inconsistent with or prohibited by any applicable OEM or third-party license terms, restrictions, or usage guidelines;

(d) upload, install, or introduce any unauthorised software, content, or materials to the caregiVR Provided Hardware, or caregiVR Application, including any material that contains viruses, malware, or other harmful code;

(e) load to in the Solution any Personal Information or patient data except as expressly permitted under this Agreement. To the extent the uploading of such Personal Information is permitted, Customer shall have all necessary rights licenses and consents to load such information to the Solution;

(f) interfere with, disrupt, or attempt to bypass any security or access control measures associated with the Solution; and

(g) use the Solution in any way that is in violation of the laws applicable to Customer (including all privacy and anti-spam legislation);

(h) use the Solution except as contemplated by this Agreement;

(i) post, send or otherwise make available through the Services any material that:

          (i) contains any virus, trojan, worm or similar deleterious program that may damage or interfere with the 
               operation of any aspect of the Solution;

          (ii) infringes caregiVR’s or a third party's intellectual property rights; or

          (iii) is defamatory, harassing, illegal, fraudulent, misleading or deceptive;

(j) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Solution, content or Documentation available to any third party; or

(k) remove, alter or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the Solution (including the caregiVR Provided Hardware) or the Documentation.

4.6. caregiVR may at any time suspend or limit the Customer’s access to or use of the Solution if it reasonably believes that Customer is in breach of this Agreement.

4.7. Administrator Dashboard.

(a) caregiVR may provide certain Authorized Users with access credentials to an Administrator Dashboard. Customer is responsible for managing Administrator access rights and ensuring that only authorized personnel are granted such access.

(b) Customer and its Authorized Users are responsible for maintaining the confidentiality and security of all login credentials provided for access to the Administrator Dashboard. Customer must promptly notify caregiVR of any suspected or actual unauthorized use of such credentials. For the avoidance of doubt, Customer shall be liable for any use of the Solution by Customer, Authorized Users, End Users.

5. Customization Services

5.1. If the parties agree that caregiVR will provide Customization Services, the details will be set out in a mutually agreed Statement of Work, which will include the scope, timeline, deliverables, and applicable Fees. Customization Services are chargeable at caregiVR’s then-current rates, unless otherwise agreed in writing.

5.2. caregiVR will use reasonable skill and care in delivering the Customization Services and will make reasonable efforts to meet any agreed timelines.

5.3. The Customer will:

(a) provide timely access to relevant information, materials, and personnel as needed to support delivery; and

(b) review and give Feedback on draft materials within agreed timeframes.

5.4. Unless expressly stated in the Statement of Work, Customization Services do not include any rights to exclusive content or ownership of deliverables.

6. caregiVR Provided Hardware

6.1. All caregiVR Provided Hardware is leased to the Customer and remains the property of caregiVR at all times. The caregiVR Provided Hardware is offthe-shelf third-party hardware. caregiVR is not the manufacturer and makes no warranties, representations, or guarantees with respect to the performance, safety, reliability, or compliance of the hardware. caregiVR passes through to Customer, to the extent permitted, any applicable warranties or support information provided by the original equipment manufacturer (OEM).

6.2. The Customer is responsible for maintaining the hardware in good condition, subject to reasonable wear and tear from normal use. If any hardware is lost, stolen, or damaged (beyond ordinary wear and tear), Customer will be responsible for the full replacement cost, as determined by caregiVR’s then-current replacement pricing. Customer will immediately notify caregiVR of any loss or theft of the caregiVR Provided Hardware.

6.3. Customer must not sell, lease, or otherwise dispose of the hardware.

6.4. Return of Hardware:

(a) Upon expiry or termination of this agreement for any reason, Customer must return all leased hardware to caregiVR within 14 days, in good working order (subject to reasonable wear and tear). Return must be made using the method and location specified by caregiVR. Customer is responsible for properly packaging the caregiVR Provided Hardware for return, including all accessories, cables, and original or equivalent protective materials to prevent damage during shipment.

(b) Unless otherwise agreed in writing, Customer shall bear all costs of shipping, insurance, and handling associated with returning the caregiVR Provided Hardware to caregiVR’s designated address.

(c) If Customer fails to return any hardware, or if returned hardware is materially damaged (beyond ordinary wear and tear), caregiVR may invoice Customer for, and Customer agrees to pay, the applicable replacement cost, payable within 30 days of invoice.

(d) If Customer fails to return any caregiVR Provided Hardware within 14 days after the return deadline specified in this Agreement or any notice of termination, Customer shall pay caregiVR late return fee per unit per month (or portion thereof) until the hardware is returned or replaced.

6.5. The caregiVR Provided Hardware is not certified or approved as a medical device by any regulatory authority and is not intended to diagnose, treat, cure, or prevent any disease or condition. caregiVR disclaims any responsibility for ensuring that the Solution is suitable for any medical, therapeutic, or clinical use as Customer remains responsible for ensuring use of the Solution is medically appropriate for its End Users.

7. Customer Data

7.1. Unless otherwise agreed in an applicable Engagement Document, caregiVR does not intend to collect or process any End User Personal lnformation (as defined under the DPA) from residents or staff. Customer agrees to not provide End User personal information, unless otherwise agreed by the parties.

7.2. The Solution may capture certain non-identifying data including (but not limited to) session data, content watched, length of session, time of day, day of week, usage data, age range and user-reported mood before and after sessions. caregiVR’s data processing practices are set in its then-current Data Processing Addendum (available at: www.mycaregivr.com/dpa) (“caregiVR DPA”), which is incorporated by reference into this agreement.

7.3. If caregiVR introduces new features or functionality that involve the collection or processing of Personal Information, such functionality will not apply to Customer unless and until the parties agree in writing (email sufficient) to an addendum that sets out the applicable terms and obligations. For clarity, Customer is not obligated to agree to the addendum or accept features requiring collection of Personal Information of End Users.

7.4. Customer hereby grants caregiVR a non-exclusive, royalty-free, perpetual, irrevocable, worldwide right and licence to access, use, process, and store Customer Data for the Permitted Purpose. The “Permitted Purpose” means

(a) providing, maintaining, and supporting the Solution;

(b) marketing the Solution;

(c) in support of regulatory applications;

(d) reporting on use and efficacy of the Solution;

(e) customising or improving the functionality or performance of the Solution; and

(f) generating aggregated and anonymized data sets, insights, and analytics for business or research purposes, provided such outputs do not identify the Customer or any individual (“Generated Data”). As between the parties, Customer agrees that such Generated Data is owned by caregiVR.

7.5. The Customer is solely responsible for:

(a) providing any required notices and obtaining all necessary consents from residents, staff, or other data subjects in relation to the collection and use of data by the Solution; and

(b) ensuring that any data it submits or permits to be collected through the Solution has been lawfully collected and disclosed to caregiVR, for the Permitted Purposes set out in this Agreement.

7.6. caregiVR may, unless legally prohibited, delete all Customer Data after the expiration of 60 days following the termination or expiration of this Agreement. Additionally, during the Term and for a period of 60 days thereafter, caregiVR agrees to export Customer Data to Customer in industry standard machine readable form.

8. Applicable Law and Professional Standards

8.1. Applicable Laws and Standards. Customer acknowledges that it solely responsible for ensuring that its use of the Solution complies with all applicable laws, regulations, and professional standards governing healthcare, long-term care, privacy, and patient safety in the jurisdiction(s) where the Solution is used, including but not limited to the Health Insurance Portability and Accountability Act (HIPAA) in the United States and the Personal Health Information Protection Act (PHIPA) in Canada. caregiVR does not represent or warrant that the Solution complies with any specific healthcare regulatory requirements applicable to the Customer, and disclaims any responsibility for ensuring such compliance.

8.2. Rights, Licenses and Consents. Customer agrees that it has all necessary rights licenses and consent required by applicable law:

(a) to authorize its Authorized Users to use, and to otherwise permit End Users, including individuals with cognitive impairments such as dementia, to access and use the Solution, including verifying capacity and obtaining substitute decision-maker or legal representative consent where required. For clarity, Customer must not use the Solution with any individual unless all legally required consents are in place and the use complies with applicable healthcare or elder care regulations; and

(b) to provide caregiVR with any data or information it provides to caregiVR as part of the activities set out in this Agreement.

8.3. Safe Use. Customer is responsible for ensuring that the Solution is used in a safe environment, including but not limited to ensuring adequate supervision, physical space, fall risk mitigation, and user readiness. caregiVR disclaims all responsibility and liability for any physical harm, injury, or incident arising from the use or misuse of the Solution, including failure to provide a safe environment or appropriate supervision.

8.4. Sanitization and Instructions. Customer agrees to follow all hardware sanitization protocols required by applicable law and professional standards when using the Solution. Any instructions, guides, or materials provided by caregiVR relating to usage or sanitization are for informational purposes only and do not constitute professional or clinical advice. Customer must exercise independent judgment in evaluating and applying such materials.

8.5. Medical Judgment and OEM Compliance. Customer agrees to comply with all OEM usage guidelines and restrictions for the caregiVR Provided Hardware. Use of the Solution outside those parameters is solely at Customer’s risk and discretion, and caregiVR disclaims any liability arising from such use. Where caregiVR provides materials (including studies, FAQs, or use cases) suggesting compatibility with particular medical conditions or devices (e.g., hearing aids), such materials are informational only and not a substitute for medical or professional judgment. If there is a conflict between OEM guidance and caregiVR-provided materials, Customer acknowledges that it must independently assess the risk and proceed based on its own clinical judgment and applicable legal responsibilities.

8.6. The Solution is not intended to be, and must not be relied upon as, medical advice or a substitute for professional clinical judgment.

9. Fees and Invoicing

9.1. The fees for the Services provided by caregiVR under this Agreement shall be set out in an applicable Engagement Document (“Fees”) and will be invoiced in accordance with the Engagement Document.

9.2. If Customer increases the number of user accounts, packages, or units during the Term, such increases must be communicated in writing to caregiVR. Any additional quantities will be billed in advance on a pro-rated basis for the remainder of the then-current Term, using the unit pricing set out in the Engagement Document (unless otherwise agreed in writing).

9.3. Invoicing schedule for Consulting and Integration Services will be set out in the Engagement Document.

9.4. Customer will pay invoices within 30 days from the date of invoice. caregiVR reserves the right to, where applicable, suspend access to the Solution until such time as the Fees are paid in full following such 30 day period.

9.5. Any amounts not fully paid within 30 days from the invoice date shall accrue interest at the lower of 18% per annum (1.5% per month) and the highest rate of interest provided by and allowed by applicable law, until paid in full.

9.6. caregiVR may increase its Fees annually by providing the Customer with at least 60 days’ written notice prior to the end of the then-current annual term. Any such increase will take effect at the start of the next annual term. If the Customer does not agree to the revised Fees, it may elect not to renew the agreement by providing written notice to caregiVR within 30 days of receiving the fee increase notice. If no such notice is given, the revised Fees will apply for the next renewal term.

9.7. The currency for all Fees will be as specified in the applicable Engagement Document. All Fees are exclusive of applicable taxes, duties, and government charges, which are the responsibility of the Customer.

10. Term and Termination

10.1. Term. This Agreement begins on the Effective Date and continues for an initial term of 12 months (“Initial Term”). It will automatically renew for successive 12 month periods (“Renewal Term(s)”) unless either party provides at least 60 days’ written notice of nonrenewal prior to the end of the then-current term. Fees for any Renewal Term will reflect the number of packages, user accounts, or units in use at the end of the current term, and will be priced based on caregiVR’s then-current pricing unless otherwise agreed in writing.

10.2. Either party may terminate this Agreement with immediate effect by written notice if the other party;

(a) commits a material breach of this Agreement and fails to cure it within thirty (30) days of receiving written notice; or

(b) becomes insolvent, files for bankruptcy, is placed into receivership or liquidation, or otherwise ceases to carry on business in the ordinary course

10.3. Upon termination or expiry of this Agreement:

(a) Customer must cease all use of the Solution;

(b) all caregiVR Provided Hardware must be returned in accordance with Section 6.3; and (c) any unpaid Fees accrued as of the termination date will become immediately due.

11. Intellectual Property

11.1. Ownership. As between the parties, all intellectual property rights in and to the Solution, including the caregiVR Application, Documentation, and any improvements, updates, or modifications, are and remain the exclusive property of caregiVR or its licensors. No ownership rights are transferred to the Customer under this agreement.

11.2. Third-Party Content. The Solution may include VR content and software components provided by third parties. All such third-party content is subject to the applicable third-party licensing terms. caregiVR does not grant any rights in third-party content beyond what is necessary to use the Solution as permitted under this agreement.

11.3. Custom Deliverables.

(a) Unless expressly agreed otherwise in a Statement of Work, all intellectual property rights in any content, materials, or deliverables created, developed, or customized by caregiVR (including Custom Content) are and will remain the exclusive property of caregiVR.

(b) caregiVR grants Customer a non-exclusive, non-transferable, royalty-free license to use such Custom Deliverables solely in connection with its authorized use of the Solution during the Term.

(c) To the extent Customer provides any input, materials, content, data, feedback, or other contributions (“Customer Contributions”) in connection with the development of Custom Deliverables, Customer grants caregiVR a perpetual, irrevocable, worldwide, royalty-free, sublicensable, and assignable license to use, reproduce, modify, distribute, commercialize, publicly perform, publicly display, and create derivative works from such Customer Contributions for any purpose to the extent incorporated into the Custom Deliverables or otherwise to permit caregiVR to further develop and market its products or services.

(d) caregiVR’s use of any Customer trademarks within the Customer Contributions is limited to what is necessary to incorporate such marks into materials developed for Customer’s use, unless otherwise agreed in writing. All use of Customer Contributions remains subject to any applicable confidentiality obligations set out in this Agreement.

11.4. Restrictions. The Customer must not copy, modify, distribute, or create derivative works based on the Solution or its content.

11.5. Feedback. If the Customer or its staff provide caregiVR with any suggestions, feedback, ideas, or other input relating to the Solution or any related services (“Feedback”), the Customer agrees that:

a) such Feedback is provided voluntarily and without restriction;

(b) caregiVR may use, disclose, reproduce, modify, license, distribute, and otherwise exploit the Feedback in any manner, for any purpose, without any obligation to the Customer; and

(c) all intellectual property rights in the Feedback are hereby assigned to caregiVR upon submission and

(d) Customer will execute any documents and take any reasonable steps necessary to perfect caregiVR’s ownership of the Feedback upon request.

12. Confidentiality and Security

12.1. The Receiving Party agrees to keep confidential and not disclose to any third party, except as expressly permitted under this Agreement, any Confidential Information of the Disclosing Party that it receives or accesses in connection with this Agreement. The Receiving Party will use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses for its own similar information, but in no event less than reasonable care.

12.2. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its personnel, contractors, or advisors who have a need to know it in connection with this Agreement, provided they are bound by confidentiality obligations no less protective than those in this Agreement.

12.3. The confidentiality obligations in this Section do not apply to information that the Receiving Party can demonstrate:

(a) is or becomes publicly available without breach of this Agreement;

(b) was lawfully known to the Receiving Party before disclosure;

(c) is disclosed to the Receiving Party by a third party lawfully and without restriction; or

(d) is independently developed without use of the Disclosing Party’s Confidential Information.

12.4. The Receiving Party may disclose Confidential Information if required by law, regulation, or court order, provided it gives prompt written notice (where legally permitted) and cooperates with the Disclosing Party to seek protective treatment.

12.5. Without limiting the generality of the foregoing, Customer acknowledges and agrees that the Solution (including the caregiVR Application, Documentation, functionality, user interface, and all underlying technology), the content made available through the Solution, and the terms of this Agreement constitute Confidential Information of caregiVR.

12.6. Upon written request by the Disclosing Party, the Receiving Party will promptly return or securely destroy (at Disclosing Party’s option) all Confidential Information of the Disclosing Party in its possession or control, including any copies, extracts, or derivative works. The Receiving Party may retain one archival copy solely for legal or compliance purposes, subject to continued confidentiality obligations under this Agreement.

13. Warranties and Disclaimers

13.1. Each party represents and warrants that it has full power and authority to enter into and perform its obligations under this agreement.

13.2. caregiVR represents and warrants that, during the Term, the Solution will perform materially in accordance with the then-current Documentation made available to Customer.

13.3. Customer represents and warrants that: (a) all Customer Data and personal data, if applicable, provided to caregiVR is lawfully collected and either owned by the Customer or the Customer has all necessary rights to provide it; and (b) its use of the Solution will comply with all applicable laws and regulations, including any relating to healthcare, privacy, and data protection.

13.4. CAREGIVR DOES NOT OTHERWISE WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICES. EXCEPT AS EXPRESSLY STATED ELSEWHERE IN THIS AGREEMENT OR ANY ENGAGEMENT DOCUMENT, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND caregiVR MAKES, AND THERE ARE, NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, UNDER THIS AGREEMENT OR ANY ENGAGEMENT DOCUMENT, REGARDING ANY MATTER, INCLUDING NO REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.

14. Indemnification and IP Infringement

14.1. caregiVR will, at its own expense, defend and settle any third-party claim brought in Canada or the United States alleging that Customer’s authorized use of the Solution (excluding the caregiVR Provided Hardware) infringes a third party’s patent, copyright, or trademark valid in Canada or the United States (an “IP Claim”), provided that: (a) caregiVR has sole control over the defense and settlement; and (b) Customer provides prompt written notice and reasonable cooperation in connection with the claim. For clarity, the foregoing indemnification obligations do not apply to the caregiVR Provided Hardware, which is governed by the applicable manufacturer’s terms and conditions.

14.2. If the Solution is held to infringe or caregiVR reasonably believes it is likely to be held to infringe, any third party intellectual property right caregiVR may, at its option and expense:

(a) procure the right for Customer to continue using the Solution;

(b) replace or modify the Solution so it is noninfringing and materially equivalent; or

(c) if neither (a) nor (b) is commercially reasonable, terminate Customer’s access to the affected portion of the Solution and refund any prepaid Fees attributable to the unused portion of the Term.

14.3. caregiVR will have no obligation under this Section 14 to the extent any IP Claim arises from:

(a) use of the Solution in combination with any product, service, hardware, or data not provided by caregiVR;

(b) modification of the Solution by anyone other than caregiVR or its authorized contractors;

(c) use of the Solution other than in accordance with this Agreement and the Documentation; or

(d) Customer’s failure to use an updated or modified version of the Solution made available by caregiVR that would have avoided the claim without materially reducing functionality.

14.4. Customer will indemnify and hold caregiVR harmless, at its own expense, from any third-party claim brought against caregiVR arising from:

(a) an allegation that Customer did not have the necessary rights, consents, or authority to provide Customer Data to caregiVR, provided caregiVR used such data in accordance with this Agreement; or

(b) a claim by an End User or their representative arising from Customer’s failure to provide a safe environment for use of the Solution, obtain required consents, or exercise appropriate clinical or professional judgment.

In each case, caregiVR must provide prompt written notice and reasonable cooperation, and Customer will have sole control over the defense and settlement of the claim, except that the counsel selected by Customer must be approved by caregiVR in writing.

14.5. The indemnified party agrees to notify the other party promptly in writing of any claim subject to indemnification and to cooperate with the other party by providing such information and assistance as is reasonably necessary and appropriate for the handling of the defense of such claim.

14.6. The indemnities under this Section 14 survive termination or expiry of this Agreement and are Customer’s exclusive remedy with respect to IP Infringement Claims.

15. Limitations on Liability

15.1. Except for Customer’s payment obligations, each party’s aggregate liability under this Agreement, whether in contract or tort (including negligence), as a result of breach of warranty, strict liability, indemnity or under any other theory of liability whatsoever, will be limited to direct damages in an amount not exceeding, in the aggregate, the total Fees paid to caregiVR under this Agreement in the twelve months immediately preceding the month of the most recent event giving rise to liability.

15.2. In no event, whether in contract or tort (including negligence), as a result of breach of warranty, strict liability, indemnity or under any other theory of liability whatsoever, will either party be liable to the other under this Agreement for: (i) any indirect, consequential, incidental, exemplary, punitive or special damages; or (ii) for any damages, whether direct, indirect, consequential, incidental, exemplary, punitive or special, characterized as lost revenue, lost savings or lost profits; even if such party has been advised of the possibility of such damages in advance.

15.3. The limitations of liability in this Section 15 do not apply to deliberate or grossly negligent breaches of confidence or a party’s indemnification obligations.

16. General

16.1. The parties are independent contractors. Nothing in the Agreement makes a party an agent, partner or joint venturer of the other.

16.2. The Customer may not assign the Agreement or any part thereof without caregiVR's prior written consent. caregiVR may assign the Agreement without consent, to an Affiliate or to a successor of all or part of the business to which the Agreement relates. Either party may disclose the existence and terms of this agreement to actual or potential investors, acquirers, or other transaction counterparties (and their advisors) as part of due diligence, provided that such recipients are subject to confidentiality obligations no less protective than those set out in this agreement.

16.3. An obligation of a party (other than an obligation to pay money) is suspended to the extent the party is prevented from performing that obligation because of an event beyond its reasonable control. The party shall be excused from further performance of the obligation(s) for as long as such event prevails and the party continues to use commercially reasonable efforts to recommence performance to the extent possible. The non-performing party that is prevented, hindered or delayed in its performance shall immediately notify the other party in writing.

16.4. The law of the Province of Ontario governs the Agreement. Any controversy, dispute, or claim that arises with respect to this Agreement which cannot be resolved by the parties shall be settled by arbitration in accordance with the Arbitration Act of Ontario, 1991, SO 1991, c17 or any statutory modification or re-enactment thereof (the “Act”) by one arbitrator appointed in accordance with the Act and the arbitrator will sit in Toronto, unless otherwise agreed by the parties. Any provision of these Terms or any Service Agreement that should, by their nature, survive termination or expiration of the Agreement, including but not limited to the relevant portions of Sections 5.4, 6.4, 7, 8, 9, 11, 12, 15 and 16 shall survive termination or expiration of this Agreement.

16.5. Any notice required under the Agreement may be given electronically to caregiVR at info@mycaregiVR.com; and to the Customer by notice through the Solution or at the contact information the Customer has provided.

16.6. Les parties reconnaissent que ce contrat a été négocié et est rédigé en langue anglaise. The parties acknowledge that this contract was negotiated and is made in the English language.

 

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