BRAVE VIRTUAL WORLDS, INC.

TERMS & CONDITIONS AGREEMENT

This Terms & Conditions Agreement (“Agreement”) is made by and between Brave Virtual Worlds, Inc. (doing business as Valor Biomechanics), a Delaware corporation (“Brave” or “Valor”), and the customer set forth through Stripe (the “Customer”).  This Agreement includes and incorporates herein by reference the attached Terms and Conditions, and contains, among other things, warranty disclaimers, liability limitations and use limitations.

Terms and Conditions

1. Use of Product and License.

1. License.  Subject to the terms and conditions of this Agreement, Brave grants to Customer a non-sublicensable, nontransferable, nonexclusive license to access and use the software system (the “System”) and motion capture and hardware described above (the “Hardware” and collectively with the System, the “Product”) for use solely during the subscription period noted above (“Subscription Period”). 

2.  Customer shall use the Product and any documentation, data or other information related thereto that is received from Brave or its representatives solely for Customer’s internal use and for no other purpose.  For clarity, Customer acknowledges and agrees that all component parts of the Product are subject to the foregoing license grant and that nothing in this Agreement conveys to Customer any right, title or interest in or to any component parts of the Product.    

3. Authorized Users. Customer shall only be authorized to allow the number of users specified above to use the Service (each user, an “Authorized User” and each account, an “Authorized User Account”).  Customer shall ensure that its Authorized Users are familiar with and agree to all applicable obligations contained in this Agreement, and Customer is responsible and liable for any breach of this Agreement by any Authorized User.  Brave shall separately enter into a privacy policy with Authorized Users, governing Brave’s use of information collected directly from Authorized Users; such information shall not be deemed Confidential Information (as defined below) of Customer hereunder, and is not subject to the terms of this Agreement, but rather is governed by the terms of Brave’s privacy policy. For clarity, Authorized Users’ acceptance of Brave’s privacy policy does not relieve Customer of its obligations set forth herein. 

4. Restrictions.  Customer shall not, directly or indirectly:  (a) use the Product, any documentation or other information provided by Brave hereunder, to create any similar technology; (b) reproduce or modify the Product or any portion thereof or interfere or attempt to interfere with the proper working of the Product; (c) sublicense, rent, sell, loan, lease, disclose, display, distribute, or otherwise transfer the Product, or any portion thereof, or use it for timesharing, rental or service bureau purposes, or for the benefit of a third party; (d) reverse assemble, reverse compile or reverse engineer the Product, or any portion thereof, or otherwise attempt to discover any source code to any software components of the System, or underlying Confidential Information (as defined in Section 2.1 below), or circumvent any technological measure that controls access to the Product, or any portion thereof; (e) copy, adapt, merge, create derivative works of, translate, localize, port, build, develop or otherwise transfer or encumber the rights to the Product; (f)  publish any results of benchmark tests run on the System, using the Hardware or otherwise; (g) use the Product, or allow the transfer, transmission, export or re-export of all or any part of the Product, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction; (h) remove or alter any product identification, markings, copyright or other notices; (i) sell, pledge, or otherwise dispose of or encumber, or allow any lien to be attached under law or equity, to, the Hardware; or (j) permit any third party to engage in any of the foregoing proscribed acts.  Customer agrees to ensure that there is no breach, compromise or violation, by Customer Authorized Users, employees, consultants, agents, athletes, customers, suppliers, independent contractors or any other end user, of such obligations and Brave’s and its licensors rights and title or interest to the Product. 

5. Supply and Care and Return of Hardware.  Customer agrees that Brave shall supply the Hardware to Customer, and Customer is responsible for costs related to reasonable maintenance and return. If the Hardware is being misused or used in breach of this Agreement, Brave reserves the right to request Customer to immediately return such Hardware in good condition at Customer’s expense. Customer agrees that the transfer of Hardware to it under this Agreement shall be a bailment and shall not constitute a sale of the Hardware. Customer agrees to use commercially reasonable efforts to maintain the Hardware and any other components of the Product in good operating condition (subject to normal wear and tear) and, upon expiration or termination of the Subscription Period, to promptly return such hardware components to Brave in accordance with Section 5 below.. 

1. Confidentiality.

1. Definition. “Confidential Information” means any information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement that (a) is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; or (b) in the case of oral or visual disclosure is identified as confidential at the time of disclosure; or (c) under the circumstances should in good faith be considered to be confidential.  Confidential Information includes, without limitation, information related to: research, Product plans, developments, inventions, processes, designs, systems, markets, business plans, agreements with third parties, services, customers, marketing or finances of either party, the content or existence of any negotiations, and pricing.  Notwithstanding the foregoing, the source code for any software components of the System and all other non-public information regarding the Product, including information related to its underlying algorithms, shall be deemed Confidential Information of Brave without any need for designating the same as confidential or proprietary.

2. Obligations.  Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth in this Agreement, and shall not disclose such Confidential Information to any third party except as expressly permitted herein without the Disclosing Party’s written consent. The Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the Disclosing Party’s Confidential Information, but in no event less than reasonable care. The Receiving Party shall promptly, and within no more than forty-eight hours, notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, each Receiving Party shall either return or, at the Disclosing Party’s request, destroy the Confidential Information of the other Disclosing Party. Notwithstanding the foregoing, the obligations set forth in this Section 2 shall not apply with respect to any information to the extent that it is: (a) already rightfully in the possession of the Receiving Party without restriction prior to the first disclosure hereunder as evidenced by records or files; (b) is already or becomes generally available to the public after the time of disclosure other than as a result of any improper action by the Receiving Party; or (c) was rightfully disclosed to Receiving Party by a third party without restriction. The Receiving Party may make disclosures required by law or court order provided that, if practicable, the Receiving Party provides adequate notice and assistance to the Disclosing Party for the purpose of enabling the Disclosing Party to prevent and/or limit the disclosure.  

3. Remedies.  Due to the unique nature of the Confidential Information, the Receiving Party agrees that any breach or threatened breach of this section of this Agreement shall cause not only financial harm to the Disclosing Party, but also irreparable harm for which money damages shall not be an adequate remedy. Therefore, the Disclosing Party shall be entitled, in addition to any other legal or equitable remedies, to an injunction or similar equitable relief against any such breach or threatened breach without the necessity of posting any bond.

1. Proprietary Rights; Data; Security.  

1. Customer Data. With respect to any Customer Data (as defined below) provided by Customer in connection with its use of the Product, Customer hereby grants to Brave a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, modify the Customer Data solely for the purposes of providing the Product to Customer as set forth in this Agreement.  Brave shall not provide any third-party with access to the Customer Data except for Brave’s technology vendors that require access to fulfill their obligations in order for Brave to fulfill its obligations hereunder and are subject to the same terms and conditions of this Agreement, including, but not limited to the non-use, security and confidentiality obligations set forth herein.  Customer shall retain all rights, title and interests (including all proprietary and Intellectual Property Rights (defined below)) in and to the Customer Data.  “Customer Data” means any data uploaded to, or ingested by, the Product in connection with Customer’s use thereof.  As between the parties, Customer is responsible for obtaining all consents and securing all rights from users of the Product, in each case as may be necessary to permit Brave to access and use the Customer Data in the manner permitted in this Agreement.   

2. Ownership.  As between the parties, Brave owns and retains all rights, title, and interest, including all related Intellectual Property Rights (defined below), in the Product.  This Agreement does not transfer ownership rights of any kind in the Product, or any related materials to the Customer or any third party.  The Brave name, the Brave logo, and the names associated with the Product are trademarks of Brave or third parties, and no right or license is granted to use them.  Customer may not use Brave’s name or trademarks without the prior written consent of Brave.  "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, registered and unregistered trademarks, service marks, trade names, domain name rights, mask work rights, sui generis database rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

3. Feedback.  Customer agrees that Brave is free to collect, use and disclose aggregate measures of usage and performance, and to freely reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Product hereunder.  Customer may provide Brave with comments, suggestions, ideas, enhancement requests, feedback, reports, recommendations or other information or feedback concerning the Product (“Feedback”), and Customer hereby grants to Brave a perpetual, irrevocable, non-exclusive, sublicensable, transferrable license to use such Feedback for any purpose, including in connection with all related Intellectual Property Rights.

4. Usage Data.  Brave may collect, retain, and use, during and after the Subscription Period for purposes of Brave’s business, usage data that is derived from the operation of the Product, including patterns identified through the use of the Product and algorithms, log data, and data regarding the performance and availability of the Product (“Usage Data”). Such Usage Data is not Customer Data or otherwise Customer’s Confidential Information hereunder.

5. Customer Data Security.  Brave shall maintain commercially reasonable administrative, physical and technical safeguards designed to protect against the accidental or unauthorized access, use, alteration or disclosure of Customer Data processed or stored on a computer and/or computer network owned or controlled by Brave in connection with the Product.  The Parties agree that, with respect to the California Consumer Privacy Act, Brave acts as a “service provider” with respect to all Customer Data provided or made available by Customer to Brave through the Product. 

6. Publicity Rights. Customer grants Brave a limited, non-exclusive, royalty-free right to use Customer’s name, logo, and institutional affiliation solely for marketing and promotional purposes, including but not limited to Brave’s website, social media, presentations, and case studies, provided that such use does not misrepresent Customer’s relationship with Brave or imply endorsement. Brave shall use the Customer’s logo and name in accordance with any reasonable brand guidelines provided by Customer. Upon the Customer’s written request, Brave shall promptly remove any specific reference or logo use from marketing materials.

2. Fees and Taxes.  
1. Fees. Customer shall pay Brave the fees (“Fees”) noted above without offset or deduction. The initial period’s Fees shall be charged via Stripe upon Customer’s receipt of the Product.  Customer will ensure that Customer’s card details are kept up to date to avoid any interruption to the services provided hereunder.  Payments are subject to the Stripe Terms of Use (https://stripe.com/us/terms) and Privacy Policy (https://stripe.com/us/privacy).  Customer hereby accepts all charges pursuant to this Agreement. Customer’s credit card and payment details will not be held by Brave on Brave’s system and will only be available to the Stripe.   
2. Taxes.  All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Brave’s income.

3. Term and Termination.  This Agreement shall commence on the Effective Date and shall continue unless and until terminated in accordance with this Section 5.  This Agreement and the Subscription Period may be terminated by either party for any reason or no reason upon thirty (30) days written notice to the other party at the address listed above, or immediately upon written notice of any breach or threatened breach by the other party of any provision of this Agreement.  Upon termination or expiration of this Agreement, Customer’s license to use the Product shall automatically terminate and Brave shall return or destroy all Customer Data and/or Customer Confidential Information.  Sections 1.2, 1.3, 1.4, 2, 3, and 7 through 10, as well as this sentence, shall survive any termination or expiration of this Agreement for any reason.  Within fifteen (15) days after the expiration or termination of this Agreement, Customer shall return all Hardware then in its possession to Brave in good condition, reasonable and normal wear and tear expceted.  If Customer fails to return any such Hardware, Customer shall be liable for and must continue to pay any applicable until all Hardware is returned.

4. Errors. In addition, Customer shall notify Brave by telephone or electronic mail to the contact designated from time to time upon the discovery of a material error or difficulty in respect of use of the Product.  Brave may in its sole discretion attempt to resolve such error, but shall be under no obligation to do so.  

5. Warranties and Disclaimers.

1. Mutual. Each party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into this Agreement, to carry out its obligations under this Agreement, and to grant the rights granted to the other party herein; (iii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and shall not violate any other agreement to which such party is a party or by which it is otherwise bound; and (iv) it and its performance hereunder shall comply with all applicable laws and regulations.

1. Brave. Brave warrants that (i) it shall not knowingly include in the System any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data, (ii) it shall provide any support or implementation services, if applicable, in a professional and workmanlike manner; (iii) it shall comply with applicable laws, rules, regulations, orders, consents, degrees, industry best practices and regulatory guidance.

2. DISCLAIMERS.  EXCEPT AS PROVIDED HEREIN, THE PARTIES ACKNOWLEDGE THAT THE PRODUCT IS PROVIDED “AS IS” AND MAY NOT BE FUNCTIONAL ON ANY MACHINE OR IN ANY ENVIRONMENT.  EXCEPT AS PROVIDED HEREIN, BRAVE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND BRAVE EXPRESSLY EXCLUDES AND DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, FREEDOM FROM ERRORS, FREEDOM FROM PROGRAMMING DEFECTS, NONINTERFERENCE AND NONINFRINGEMENT, AND ALL IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE AND USAGE OF TRADE.

1. Indemnification.  

1. Brave Indemnity.  Brave shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”) that Customer’s permitted use of the Product infringes or misappropriates such third party’s United States patents or copyrights, provided that Customer promptly notifies Brave in writing of the claim, cooperates with Brave, and allows Brave sole authority to control the defense and settlement of such claim.  If such a claim is made or appears possible, Customer agrees for Brave, at Brave’s sole discretion, to (A) modify or replace the Product, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue to use the Product in substantially the same manner as contemplated in this Agreement. If Brave determines that neither alternative is reasonably available, Brave may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 8.1 shall not apply with respect to portions or components of the Product (A) not created by Brave, including but not limited to and integration of Customer Data, (B) that are modified by anyone other than Brave where the alleged infringement relates to such modification, (C) combined with other products, processes or materials where the alleged infringement relates to such combination, (D) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (E) where Customer directed the development of the feature or functionality that gives rise to the alleged infringement; or (F) where Customer’s use thereof is not strictly in accordance with this Agreement and all related documentation.

2. Sole Remedy.  THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PRODUCT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

2. Limitation of Liability. IN NO EVENT SHALL BRAVE (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER HEREUNDER DURING THE PREVIOUS 12 MONTHS, EVEN IF BRAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

1. Miscellaneous.  

1. Governing Law.  This Agreement shall be governed by and construed in accordance with, the laws of the State of Texas without regard to conflicts of law provisions thereof.  The parties agree that any and all disputes arising out of or relating in any way to this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts located in Travis County, Texas.

2. Waiver.  No provision of right, power or privilege under this Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any party, its agents or employees, but only by an instrument in writing signed by an authorized representative of each party.  No waiver by any party of any breach or default of any provision of this Agreement by the other party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver.

3. Severability.  If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.

4. Entire Agreement.  This Agreement, including any referenced attachments and/or incorporated documents, shall constitute the entire understanding between the parties regarding the subject matter described herein and supersedes any previous communications, representations or agreements whether oral or written regarding such subject matter.

5. Beta Services.  From time to time, Brave may, in its sole discretion, invite Customer to use, on a trial basis, pre-release or beta features that are in development and not yet available to all customers (“Beta Services”). Beta Services may be subject to additional terms and conditions, which Brave shall provide to Customer prior to Customer’s use of the Beta Services. Such Beta Services and all associated conversations and materials relating thereto shall be considered Brave’s Confidential Information and subject to the confidentiality provisions in this Agreement. Customer agrees that it shall not make any public statements or otherwise disclose its participation in the Beta Services without Brave’s prior written consent. Brave makes no representations or warranties that the Beta Services shall function. Brave may discontinue the Beta Services at any time in its sole discretion, with or without notice to Customer. Brave shall have no liability for any harm or damage arising out of or in connection with a Beta Service. The Beta Services may not work in the same way as a final version. Brave may change or not release a final or commercial version of a Beta Service in its sole discretion.  Participation in using the Beta Services does not provide any guarantee for future use or availability if Brave releases a final or commercial version of a Beta Service unless otherwise explicitly agreed to by Brave and Customer.

6. Modification.  No change or modifications of any of the terms or conditions hereof shall be valid or binding on either party unless made in writing and signed by an authorized representative of each party making specific reference to this Agreement and the clause to be modified.  

7. Force Majeure. In no event shall Brave be liable to Customer or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond Brave’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, epidemic or pandemic, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

8. Relationship of the Parties.  The parties hereto shall each be independent contractors in the performance of their obligations under this Agreement, and nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.  Each party is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith.  Except as expressly provided herein, a party shall have no right to exercise any control whatsoever over the activities or operations of the other party, or commit the other party to any obligation or course of action.

9. Assignment.  Customer may not assign or transfer any of its rights or obligations hereunder without the prior written consent of Brave, which consent shall not be unreasonably withheld, and any such attempted assignment shall be void.  This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

10. Notices.  All notices hereunder shall be in writing and sent to the address specified above, as may be amended by notice pursuant to this subsection, by (a) personal delivery, (b) certified or registered mail, return receipt requested, (c) overnight courier, or (d) confirmed electronic email. Notices shall be deemed given upon receipt.

11. Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.

12. Acknowledgement.  EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT. 
    

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