This License Agreement (including all attached schedules, which are hereby incorporated by reference, this “Agreement”) is entered into on [DATE] (“Effective Date”), between ALTality, LLC, a Michigan limited liability company (“ALTality”), and [HOSPITAL NAME], a [STATE] [TYPE] (“Hospital”). ALTality and Hospital are referred to individually as a “Party” and collectively as the “Parties”.
Hospital is, among other potential activities, in the business of healthcare services.
ALTality is, among other potential activities, in the business of developing, promoting, distributing or selling mobile technology and other products that enable digital augmented reality experiences involving some combination of sound, animation and interactive features for print or electronic materials (such materials specified in Schedule A or a Purchase Order, “Target Materials” and, such augmented reality experiences specified in Schedule A or a Purchase Order, “AR Experiences”) through ALTality’s SpellBound mobile application (“SpellBound AR”).
The Parties desire to enter into this Agreement for the purpose of using SpellBound AR on devices owned and controlled by the Hospital (“Devices”) at the location(s) specified in Schedule A (“Location”) with Hospital patients (such purpose, the “Purpose”).
In consideration of the mutual promises below and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Responsibilities of ALTality.
During the Term, ALTality shall provide: (a) copies of SpellBound AR, along with AR Experiences, to be installed and used at any given time on no more than the number of Devices specified in Schedule A or an applicable Purchase Order (“Permitted Number of Devices”) and for no longer than the Term, with respect to SpellBound AR, or the duration specified in Schedule A or the applicable Purchase Order (“AR Duration”), with respect to AR Experiences; (b) commercially reasonable training for Hospital personnel, employee, staff member or contractor (collectively, “Personnel”) in how to use SpellBound AR; (c) paper copies of each Target Material in the quantity specified in Schedule A or a Purchase Order; and (d) two licenses or coupon codes for each paper copy of each Target Material that is designated (on Schedule A or a Purchase Order) to include such licenses or coupon codes, with each such license or coupon code redeemable for the AR Experience associated with such Target Material by a Hospital patient or a Hospital patient’s family member (at no further expense) for use on their own personal device using ALTality’s publicly available SpellBound mobile application (subject to the terms of ALTality’s then-current end-user license agreement and for so long as such AR Experience is available for such redemption). The AR Duration for an AR Experience purchased under a Purchase Order commences on the effective date of such Purchase Order (or, in the case of AR Experiences under Schedule A, on the Effective Date) or as otherwise provided by such Purchase Order.
2. Purchase Orders.
Schedule A specifies the AR Experiences, Permitted Number of Devices and Target Materials initially purchased by Hospital under this Agreement. Hospital may purchase additional AR Experiences, Permitted Number of Devices or Target Materials, by a written purchase order substantially in the form of Schedule B or as otherwise mutually agreed in writing by the Parties (“Purchase Order”) or through a website specified by ALTality.
3. Shipment and Delivery.
ALTality shall deliver, or have delivered, physical copies of Target Materials, in accordance with an applicable Purchase Order, within 21 days after the effective date of such Purchase Order (or, in the case of Target Materials under Schedule A, within 21 days after the Effective Date), subject to the availability of such physical copies of Target Materials, or as otherwise agreed by the Parties in such Purchase Order. Hospital shall pay for any expenses associated with such delivery. For all deliveries of physical copies of Target Materials, title and risk of loss transfer to Hospital when ALTality delivers such physical copies of Target Materials to a common carrier for delivery to the address specified in the applicable Purchase Order.
4. Responsibilities of Hospital.
Subject to Sections 5.2 and 5.7, Hospital shall provide ALTality with:
(a) at a minimum, annual check-ins regarding SpellBound AR through any format, including phone calls, emails, video conferences or in-person visits, between ALTality’s designated contact individual and Hospital’s designated contact individual, each as identified in Schedule A; and
(b) at a minimum, annual feedback regarding SpellBound AR usage, use cases, therapeutic intent and outcomes, in the format of written reports, photos and videos ((a) and (b) together, “Feedback”).
If a waiver or similar document is required to be signed by any person or entity (“Person”) for ALTality to receive, publish or otherwise use any Feedback or other Hospital-provided photos or videos without infringing or violating the rights of that Person, then Hospital shall obtain those documents signed by all such Persons and deliver those documents to ALTality, prior to sending ALTality any such Feedback or other photos or videos.
During and after the Term, Hospital shall provide ALTality with references for prospective customers and ALTality may publicize its relationship with Hospital, including by describing Hospital as a “partner.” During the Term, Hospital shall make commercially reasonable efforts, in coordination with ALTality, to publicize and promote SpellBound AR.
4.4. Case Study.
Subject to Sections 5.2 and 5.7, Hospital shall provide ALTality with all reasonably requested information, materials and access to Hospital Personnel and patients as is reasonable to enable ALTality to conduct a case study regarding the use of SpellBound AR, AR Experiences and Target Materials at the Location.
4.5. Access and Use.
Hospital shall not, and shall cause Personnel not to, make any AR Experiences, any Target Materials or SpellBound AR available to any Hospital patient who, or any person who Hospital knows or should know, might suffer any harm from exposure to such AR Experiences, such Target Materials or SpellBound AR. Hospital shall reimburse ALTality for any damages or expenses incurred by ALTality for such harm, except to the extent such damages or expenses were incurred by ALTality due to such harm resulting from such AR Experience, such Target Materials or SpellBound AR failing to function in accordance with any written documentation provided by ALTality. Without limiting the foregoing, Hospital shall not, and shall cause Personnel not to, provide access to AR Experiences or SpellBound AR to any Person other than (a) Personnel for the Purpose or (b) a Hospital patient using AR Experiences or SpellBound AR under the supervision and control of Personnel for the Purpose.
Hospital shall not provide to ALTality, in Feedback or otherwise, any sensitive or regulated information.
Along with all taxes ALTality is required by applicable law to collect from Hospital, Hospital shall pay ALTality:
5.1. the fees specified in Schedule A within 30 days after the Effective Date; and
5.2. the fees specified in a Purchase Order within 30 days either after ALTality invoices Hospital for such Purchase Order or after ALTality delivers any applicable Target Materials, AR Experiences or additional items specified in such Purchase Order, whichever occurs earlier.
Hospital shall be responsible for its own expenses incurred in performing this Agreement.
6. Technical Support.
6.1. ALTality shall use commercially reasonable efforts to address any technical issues (whether a bug or other problem) that materially degrade the experience of Personnel or a Hospital patient with SpellBound AR or AR Experiences, within a commercially reasonable time after ALTality receives written notice of such issues.
6.2. ALTality shall reasonably cooperate and coordinate with third-party providers of software, services or products incorporated in, used for or necessary for the functioning of SpellBound AR or AR Experiences (“Third-Party Products”) to install all updates, patches and other fixes that affect the proper functioning of SpellBound AR or AR Experiences. ALTality will have no other obligations with respect to any issues related to or caused by (including any bugs or harmful code introduced by or through) Third-Party Products.
6.3. ALTality shall use commercially reasonably efforts to update (within a commercially reasonable time) and, then, support SpellBound AR and AR Experiences for all new versions of operating systems for Android and Apple mobile devices, and all new Android and Apple mobile devices, that become available during the Term. After updating SpellBound AR and AR Experiences for a new version of an operating system, ALTality in its sole discretion will determine whether to support and make available SpellBound AR and AR Experiences for any prior versions of the operating system.
7. Intellectual Property Rights.
7.1. ALTality License Grant.
Subject to Sections 5.7 and 8.2 and the other terms of this Agreement, ALTality hereby grants to Hospital a royalty-free, non-transferable, non-exclusive, non-sublicensable license for the Term to access and use SpellBound AR and for the applicable AR Duration to access and use AR Experiences on SpellBound AR, in each case, for the Purpose on the Permitted Number of Devices at the Location.
Without limiting Section 8.3, Hospital shall not, and shall cause Personnel not to: (a) copy, modify or create derivative works of SpellBound AR, any AR Experience or any Target Materials; (b) reverse engineer or disassemble SpellBound AR, any AR Experience or any Target Materials; (c) decode or attempt to derive or gain access to the source code of SpellBound AR or any AR Experience; or (d) except as expressly permitted by this Agreement: distribute, license, sell or otherwise commercially exploit SpellBound AR, any AR Experience or any Target Materials.
As between ALTality and Hospital: (a) except for the rights granted in Sections 8.1 and 8.4, ALTality reserves all rights, including any copyright, trademark, patent, trade secret or other intellectual property rights, in all ALTality software, mobile applications, websites and materials (including SpellBound AR, AR Experiences and Target Materials), as may be modified over time; and (b) any improvements or developments to SpellBound AR, AR Experiences or Target Materials, including any based on the Feedback or Hospital’s case study, are exclusively owned by ALTality, without any obligation to compensate Hospital.
(a) Those trademarks, trade names, service marks, trade dress, logos, URLs or identifying slogans of a Party (whether or not registered) as set out in Schedule C (“Marks”) constitute that Party’s property.
(b) Subject to the other provisions of this Section 8.4, each Party (“TM Licensor”) hereby grants to the other Party (“TM Licensee”) a non-exclusive, royalty-free, non-transferable (except as provided by Section 13.7), non-sublicensable (except ALTality may sublicense to its contractors) license to use TM Licensor’s Marks for promoting and marketing ALTality, Hospital, AR Experiences, SpellBound AR and Target Materials.
(c) TM Licensee shall comply with the directions of TM Licensor with respect to TM Licensee’s use of TM Licensor’s Marks. Without limiting the foregoing, TM Licensee shall not use TM Licensor’s Marks in a manner that is likely to confuse consumers or to cause others to have an inaccurate understanding of any relationship between the Parties.
(d) Each Party shall not: (i) do, or permit to be done, any act that dilutes the other Party’s Marks or tarnishes or brings into disrepute the reputation or goodwill associated with the other Party or its Marks or that invalidates or jeopardizes any registration of the other Party’s Marks; or (ii) apply for, or obtain, or assist any Person in applying for or obtaining any registration of the other Party’s Marks, or any trademark, service mark, trade name or other mark confusingly similar to the other Party’s Marks, in any country.
(e) TM Licensee shall promptly notify TM Licensor in the event that TM Licensee knows of any potential infringement of or by TM Licensor’s Marks or any potential claim that TM Licensor’s Marks are invalid. In addition, TM Licensee shall reasonably cooperate with TM Licensor, including providing documents and materials, as reasonably useful for TM Licensor to protect TM Licensor’s Marks.
8. Representations and Warranties.
8.1. Each Party represents and warrants to the other that it has, and will continue to maintain, all right, power and authority necessary to enter into and perform this Agreement.
8.2. ALL MATERIALS (WHETHER ANY AR EXPERIENCES; SPELLBOUND AR OR ANY OTHER MOBILE APPLICATIONS OR SOFTWARE; TARGET MATERIALS; OR OTHERWISE) AND INFORMATION PROVIDED ARE PROVIDED AS IS, AND THE PARTIES DO NOT MAKE ANY, AND HEREBY DISCLAIM ALL, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THAT ANY SUCH MATERIALS AND INFORMATION ARE OR WILL BE MERCHANTABLE OR FREE FROM DEFECTS OR VIRUSES.
8.3. EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES MADE BY THE OTHER PARTY EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 9.
9. Limitation of Liability.
9.1. EXCEPT WITH RESPECT TO SECTIONS 5.2, 5.6, 8.2, 8.3 and 11: NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT (WHETHER UNDER CONTRACT, TORT OR OTHERWISE) FOR ANY INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
9.2. THE AGGREGATE LIABILITY OF ALTALITY RELATED TO THIS AGREEMENT (WHETHER UNDER CONTRACT, TORT OR OTHERWISE) WILL NOT EXCEED THE AMOUNT PAID UNDER SECTION 6.
10.1. In the event the Parties have executed, or execute, a confidentiality agreement, that confidentiality agreement will take precedence over this Section 11, except that this Section 11 will govern with respect to any obligations that are not covered by, or that have expired under, that confidentiality agreement.
10.2. Confidential Information. Each Party (“Disclosing Party”) might disclose, or make available, information to the other Party (“Receiving Party”). “Confidential Information” means the terms of this Agreement and any information about a Disclosing Party’s business or activities, other than information that the Receiving Party demonstrates in writing: (a) is or became publicly known through no act or omission by the Receiving Party (or any of its employees, agents or contractors); or (b) was in the Receiving Party’s possession prior to obtaining access to such information from the Disclosing Party.
10.3. Obligations. Receiving Party shall not use any Disclosing Party’s Confidential Information for any purpose other than the Purpose and shall not disclose any such Confidential Information to any Person, except: (a) to the extent required by law; and (b) to a Person that needs to know such Confidential Information for the Purpose and that agrees to confidentiality obligations in a writing at least as restrictive as this Section 11. Receiving Party shall take the same care to prevent disclosure of Disclosing Party’s Confidential Information as Receiving Party takes with respect to its own confidential information of like kind, but not less than commercially reasonable care. Receiving Party shall return or certify destruction of all Disclosing Party’s Confidential Information promptly after Disclosing Party so requests in writing.
11. Term and Termination.
11.1. Term. This Agreement commences on the Effective Date, continues for 12 months (unless earlier terminated in accordance with this Section 12) and automatically renews for successive 12-month periods, unless either Party provides written notice to the other Party, at least 45 days prior to the renewal date, specifying that the Agreement will not renew (collectively, “Term”).
11.2. Termination. Either Party may terminate this Agreement by providing the other Party with written notice, if the other Party materially breaches this Agreement and fails to cure such breach during the 30-day period following the date the breaching Party receives written notice from the non-breaching Party specifying that such breach has occurred.
11.3. Effect of Termination. In the event this Agreement terminates or expires:
(a) No fees paid prior to such termination or expiration need be refunded.
(b) All liabilities accrued prior to such termination or expiration will be unaffected by such termination or expiration.
(c) The following Sections will survive: Sections 5.2, 5.3, 5.6, 5.7, 8.2, 8.3 and 9.2 – 13.
12.1. Entire Agreement.
This Agreement, including all schedules and any other attachments, is the final and complete agreement between the Parties regarding the subject matter of this Agreement and supersedes all previous or contemporaneous written or oral communications, promises, agreements and representations regarding that subject matter. No modification or waiver of the terms of this Agreement will be effective except in a writing signed by both Parties.
12.2. Further Assurances.
Each Party shall make all commercially reasonable efforts, including executing and delivering to the other Party any documents, as reasonably necessary to evidence or effectuate the grant of rights by Section 8 or any other terms of this Agreement.
In order to be effective, any notice or other communication required or contemplated by this Agreement must be sent (by mail, email, or otherwise) to the contact person(s) listed in Schedule A.
12.4. Force Majeure.
If either Party fails to comply with a term of this Agreement due to events (including fires, earthquakes, floods, embargoes, wars, acts of war (whether war is declared or not), terrorist acts, insurrections, riots, civil commotion, and other similar causes) beyond the reasonable control of such Party, such failure is excused and will not constitute a breach of this Agreement.
12.5. Law and Forum.
This Agreement, and any dispute related to this Agreement, are governed by the laws of Michigan, without regard to its choice-of-law principles. The Parties submit to exclusive jurisdiction in the state and federal courts in Michigan.
12.6. Equitable Relief.
Each Party acknowledges that a breach of this Agreement will cause the other Party irreparable harm, for which an award of monetary damages would not be adequate compensation, and agrees that, in the event of such a breach or threatened breach, the other Party will be entitled to equitable relief, including injunctive relief or specific performance, in addition to any other remedy to which such Party might be entitled.
Neither Party may assign any rights (including licenses) or obligations under this Agreement without the prior written consent of the other Party, except that ALTality may delegate any of its obligations under this Agreement and ALTality may assign this Agreement to a Person in connection with a merger between that Person and ALTality or a sale of substantially all of ALTality’s assets or equity to that Person. Any attempted assignment in violation of this Section will be void.
The Parties may execute any number of counterparts to this Agreement, each of which will be an original instrument and all of which taken together will constitute one and the same Agreement.
By signing below, the Parties agree to be bound by the terms of this Agreement.
Each person signing below represents and warrants that he or she has the full power and authority to execute this Agreement on behalf of the Party for which he or she is signing.
ALTALITY, LLC[HOSPITAL NAME]
This Schedule A is attached to and governed by a License Agreement executed by ALTality, LLC, a Michigan limited liability company, and [HOSPITAL NAME]. Capitalized terms used in this Schedule A have the meanings provided in that License Agreement.
Address of Hospital Location(s):
AR Experiences to be Made Available to Hospital:Augmented reality experiences to work on the following mobile devices with at least 1G of RAM:
– iOS 7.1.2 or later
– Android 4.1 (Jellybean) or later
Description of each Target Material to be Provided to Hospital:– MagicTree Quick Distract (postcard, plastic)
– Castle Lionheart Quick Distract (postcard, plastic)
– Castle Lionheart Quick Distract (mat, plastic)
– Journey cards set (4 small square, plastic)
– Sleep Sweet (book, softcover)
– Albert the Confused Manatee (book, hardcover)
Number of Copies of each Target Material to be Provided to Hospital:X of each of the following:
– MagicTree Quick Distract (postcard, plastic)
– Castle Lionheart Quick Distract (postcard, plastic)
– Journey cards (4 small square, plastic)
1 of Castle Lionheart Quick Distract (mat, plastic)
5 each of the following:
– Sleep Sweet (book, softcover)
Albert the Confused Manatee (book, hardcover)
Target Materials for which Licenses or Coupon Codes to be Provided for Patient or Patient’s Family Redemption:
Permitted Number of Devices:Up to 100 hospital devices
2. ALTality – Designated Contact Individual Information.
Title:Chief Relationship Officer
Mailing Address:330 East Liberty, Lower Level
Ann Arbor, MI 48104
3. Hospital – Designated Contact Individual Information.
Form of Purchase Order
This Purchase Order (this “Purchase Order”) is governed by a License Agreement executed by ALTality, LLC, a Michigan limited liability company, and [HOSPITAL NAME], dated [DATE] (the “Agreement”). Capitalized terms used in this Schedule B have the meanings provided in the Agreement.
SHIP TO: [ADDRESSEE]
By signing below, the Parties agree to be bound by the terms of this Purchase Order.
Each person signing below represents and warrants that he or she has the full power and authority to execute this Purchase Order on behalf of the Party for which he or she is signing.
ALTALITY, LLC[HOSPITAL NAME]
1. Hospital Marks.
2. ALTality Marks.
 Note to User: Insert date Agreement is signed.