TERMS OF SERVICE AND PRIVACY
POLICIES SPECIFIC TO OCULUS ACCOUNT USERS
Effective Date: February 24, 2021
These Oculus Commercial Terms (“Oculus Commercial Terms”) govern your commercial, business, or other non-personal use (referred to herein as “commercial use”) of Oculus Products (as defined below). Oculus Products may be used for commercial use, subject to the terms set forth herein.
If you use a Facebook account to access an Oculus Product, commercial use of such product is governed by the Facebook Terms of Service (located at facebook.com/terms/), the Supplemental Oculus Terms of Service (located at https://www.oculus.com/legal/terms-of-service/), and these Oculus Commercial Terms, which collectively form an agreement between you and Facebook, Inc. (“Facebook” or “we” or “us” or “our”). If you use an Oculus account instead of a Facebook account to access an Oculus Product, commercial use of such product is governed by the Oculus Terms of Service (located at https://www.oculus.com/legal/terms-for-oculus-account-users/) and these Oculus Commercial Terms, which collectively form an agreement between you and Facebook. References to the “Oculus Terms” herein mean either the Supplemental Oculus Terms of Service, if you use a Facebook account to access an Oculus Product, or the Oculus Terms of Service, if you use an Oculus account to access an Oculus Product. References to the “Terms” herein mean the Oculus Terms, these Oculus Commercial Terms, and, if applicable, the Facebook Terms of Service.
References to “you” or “your” herein mean you personally and the company, corporation, organization, business, partnership, sole proprietorship, or other entity (each herein referred to as an “entity”) on behalf of which, or for the benefit of, you are using an Oculus Product. Further, if you are an entity using Oculus Products pursuant to the Terms, you may make available such Oculus Products to any of your employees and representatives for their use on your behalf or for your benefit, in which case references to “you” or “your” herein will also include such employees and representatives.
The term “Oculus Products” includes virtual, mixed, and augmented reality (“XR”) hardware and software products offered by us and a platform operated by us where users can download, interact with, and submit content and obtain services related to or in connection with our XR products. The term “Facebook Products” as used in our terms and policies includes Oculus Products. For clarity, the term “Oculus Products” as used herein does not include Oculus for Business products, which consist of Enterprise Products and Consumer Products, as defined in and governed by the Oculus for Business Enterprise Use Agreement (available at https://business.oculus.com/legal/enterprise-use-agreement/) and any other applicable terms referenced therein, including the Headset Extended Community License Addendum to the Enterprise Use Agreement (available at https://business.oculus.com/legal/headset-extended-community-license/).
Certain Facebook Company Products that are not Facebook Products are also available for use on Oculus Products, and your use of them is subject to the relevant terms and conditions for those Facebook Company Products (including relevant data policies). In addition, certain software, applications, services, content, and virtual items (including, but not limited to, third-party digital content, additional or enhanced functionality, or media content purchased through Oculus Products) provided by third parties (“Third-Party Services”) are available on Oculus Products, and your use of those services may be subject to the terms, conditions and policies governing those Third-Party Services, which may include limitations or prohibitions on commercial use of such services (see the Oculus Terms for further details).
If you are an individual engaged in any commercial use of an Oculus Product, you represent and warrant that you are not doing so as an individual consumer. Further, as an individual engaged in any commercial use of an Oculus Product, you represent and warrant that you have the legal authority to bind to the Terms any entity on behalf of which, or for whose benefit, you are using an Oculus Product.
If you are an entity engaged in any commercial use of an Oculus Product pursuant to the Terms, you represent and warrant that you (a) have the legal authority to bind to the Terms those employees and representatives to whom you make available an Oculus Product for their use and (b) will be responsible for the acts or omissions of such employees and representatives in connection with their use of such Oculus Product.
Before making an Oculus Product available for commercial use by your employees or representatives, you must notify them that their use of such Oculus Product will be governed by the Terms and that their data will be subject to the applicable data policies referenced above. You acknowledge that Facebook is not obligated to provide or make available any information related to an individual user’s personal accounts to an entity associated with such user.
These Oculus Commercial Terms shall govern any commercial use of an Oculus Product, regardless of whether the Oculus Product is purchased by an individual user or by an entity that makes the device available for use by an individual user, and regardless of whether the Oculus Product is used solely for commercial use or for a combination of commercial and personal uses.
Except as expressly authorized herein or with our written consent, you (a) are not permitted to make Oculus Products available for commercial use by third parties and (b) shall not engage in any commercial resale or rental of Oculus Products.
You are responsible for ensuring that the privacy settings for use of an Oculus Product are satisfactory to you and to each individual permitted user of the Oculus Product.
To the fullest extent permitted by applicable law, (i) Oculus Products are provided “as is” for commercial use and we make no representations or warranties about commercial use of Oculus Products; (ii) we make no representations or guarantees that Oculus Products always will be safe, secure, or error-free, or that they will function without disruptions, delays or imperfections; (iii) we expressly disclaim any liability for any commercial use, whether of an Oculus Product dedicated solely to commercial use or of an Oculus Product used both for commercial and personal uses; and (iv) we also DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL OR WRITTEN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. We do not control or direct what third parties do or say, and we are not responsible for their actions or conduct (whether online or offline) or any content they share (including offensive, inappropriate, obscene, unlawful, and other objectionable content). You expressly acknowledge and agree that your access to and use of Oculus Products is at your sole risk. No oral or written information, guidelines or advice given by Facebook will create a warranty.
Our liability shall be limited to the fullest extent permitted by applicable law, and, subject to this limitation, under no circumstance will we be liable to you for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to these Oculus Commercial Terms, the Oculus Terms or the Facebook Products (including any Oculus Products), even if we have been advised of the possibility of such damages. Our aggregate liability arising out of or relating to these Oculus Commercial Terms, the Oculus Terms or the Facebook Products will not exceed the greater of $100 or the amount you have paid us in connection with the applicable Oculus Product in the past twelve months. THE LAWS OF SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES OR CERTAIN TYPES OF DAMAGES, SO SOME OR ALL OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THIS SECTION MAY NOT APPLY TO YOU.
We do not warrant that an Oculus Product can be commercially used in any specific regulated field or sector (for example, government, healthcare, financial services, or educational fields), or is suitable or designed for use for any particular commercial use, field or sector, or security environment. It is your responsibility to determine whether an Oculus Product can be used in compliance with applicable laws and regulations in relation to any particular commercial use or regulated field or sector, as well as any applicable privacy and data protection laws. You agree not to use an Oculus Product for any commercial use that, under applicable law, would impose additional legal requirements on us or otherwise expose us to any liability relating to any third party.
THERE ARE IMPORTANT HEALTH AND SAFETY WARNINGS AND INSTRUCTIONS THAT YOU MUST READ BEFORE USING OCULUS PRODUCTS, WHICH ARE AVAILABLE AT HTTPS://WWW.OCULUS.COM/LEGAL/HEALTH-AND-SAFETY-WARNINGS. TO REDUCE THE RISK OF PERSONAL INJURY, DISCOMFORT, AND PROPERTY DAMAGE, PLEASE ENSURE THAT ALL USERS OF THE OCULUS PRODUCTS READ THE WARNINGS AND INSTRUCTIONS PROVIDED AT THE LINK ABOVE CAREFULLY BEFORE USING THE OCULUS PRODUCTS.
WARNING: FAILURE TO FOLLOW THIS HEALTH AND SAFETY INFORMATION MAY RESULT IN DAMAGE TO AN OCULUS PRODUCT, ACCESSORIES OR ANY CONNECTED DEVICES, AND MAY INCREASE THE RISK OF PERSONAL INJURY, PROPERTY DAMAGE, DISCOMFORT OR OTHER POTENTIAL HAZARDS. BY USING THE OCULUS PRODUCT, YOU REPRESENT AND WARRANT THAT YOU, AND ANY OTHERS TO WHOM YOU HAVE MADE AVAILABLE OCULUS PRODUCT ACCESS OR USE, HAVE REVIEWED THESE WARNINGS AND INSTRUCTIONS (AND WILL REVIEW ANY UPDATES THERETO), AND WILL ACT IN ACCORDANCE WITH SUCH WARNINGS AND INSTRUCTIONS.
Oculus Product devices are covered by a Limited Warranty (located at https://www.oculus.com/legal/limited-warranty/) offered by Facebook Technologies, LLC. Nothing in these Oculus Commercial Terms or the Oculus Terms between you and Facebook is intended to either abridge or expand the scope of that Limited Warranty. NOTE: YOUR COMMERCIAL USE OF OCULUS PRODUCTS DOES NOT PROVIDE YOU ENTERPRISE-LEVEL WARRANTY AND SUPPORT SERVICES, WHICH MAY OTHERWISE BE AVAILABLE FOR EXISTING OCULUS FOR BUSINESS PRODUCTS.
You agree to defend (at our request), indemnify and hold harmless Facebook and its affiliates, and its and their independent contractors and service providers, and each of their respective directors, officers, employees and agents (collectively, “Facebook Parties”) from and against any claims, liabilities, damages, losses, and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising out of or in any way connected with (a) your purchase or use of, or inability to use, the Oculus Products, (b) your violation of any applicable law or any rights of any third party, (c) any actual or alleged breach or violation of the Terms or any other applicable terms, policies, warnings, or instructions provided by Facebook or a third party in relation to the Oculus Products by you or by any third party to whom you have made available Oculus Product access or use, (d) any use of an Oculus Product in violation of applicable law, or any distribution, transfer, or export of the Oculus Product, by you and any other user of the Oculus Product, (e) any content you provide, upload, or transmit via Facebook Products, and (f) any use of an Oculus Product by any third party to whom you have made available Oculus Product access or use. In the event that you provide a Facebook Party’s defense to such a claim, you agree that such Facebook Party (x) shall be consulted regarding, and shall have the right to approve (at our sole discretion), defense strategy, any appeal, and any settlement of the claim, (y) shall have the right to select defense counsel, and (z) may further participate in the defense of the claim with counsel of our own choice at our own expense.
Certain commercial uses may involve activities that pose a high risk of causing death, bodily injury, or damage to property, including but not limited to use in connection with hospital or medical care services and similar activities (collectively, “High Risk Use”). Oculus Products were not designed for High Risk Uses or any activities requiring fail-safe performance. To the fullest extent permitted by applicable law, we disclaim any responsibility for any High Risk Use of an Oculus Product, and disclaim any express or implied warranty of fitness of an Oculus Product for a High Risk Use.
You agree to arbitrate any claim, cause of action, or dispute between you and Facebook that arises out of or relates to these Oculus Commercial Terms or your commercial use of Oculus Products or related services (“Commercial Claim”). This provision does not cover any commercial claims relating to violations of your or our intellectual property rights, including, but not limited to, copyright infringement, patent infringement, trademark infringement, violations of the Brand Usage Guidelines, violations of your or our confidential information or trade secrets, or efforts to interfere with Oculus Products or engage with Oculus Products in unauthorized ways (for example, automated ways). If a Commercial Claim between you and Facebook is not subject to arbitration, you agree that the claim must be resolved exclusively in the U.S. District Court for the Northern District of California or a state court located in San Mateo County, and that you submit to the personal jurisdiction of either of these courts for the purpose of litigating any such claim.
We and you agree that, by entering into this arbitration provision, all parties are waiving their respective rights to a trial by jury or to participate in a class or representative action. THE PARTIES AGREE THAT EACH MAY BRING COMMERCIAL CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. You may bring a Commercial Claim only on your own behalf and cannot seek relief that would affect other parties. If there is a final judicial determination that any particular Commercial Claim (or a request for particular relief) cannot be arbitrated according to the limitations of this Section, then only that Commercial Claim (or only that request for relief) may be brought in court. All other Commercial Claims (or requests for relief) will remain subject to this Section. The Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. All issues are for an arbitrator to decide, except that only a court may decide issues relating to the scope or enforceability of this arbitration provision or the interpretation of the prohibition of class and representative actions. If any party intends to seek arbitration of a dispute, that party must provide the other party with notice in writing. This notice of dispute to us must be sent to the following address: Facebook, Inc. 1601 Willow Rd. Menlo Park, CA 94025. The arbitration will be governed by the AAA’s Commercial Arbitration Rules (“AAA Rules”), as modified by these Oculus Commercial Terms, and will be administered by the AAA. If the AAA is unavailable, the parties will agree to another arbitration provider or the court will appoint a substitute. The arbitrator will not be bound by rulings in other arbitrations in which you are not a party. To the fullest extent permitted by applicable law, any evidentiary submissions made in arbitration will be maintained as confidential in the absence of good cause for its disclosure. The arbitrator’s award will be maintained as confidential only to the extent necessary to protect either party’s trade secrets or proprietary business information or to comply with a legal requirement mandating confidentiality. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA Rules, except that we will pay for your filing, administrative, and arbitrator fees if your Commercial Claim for damages does not exceed USD $75,000 and is non-frivolous (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you do not wish to be bound by this provision (including its waiver of class and representative claims), you must notify us as set forth below within 30 days of the first acceptance date of any version of these Oculus Commercial Terms containing an arbitration provision (we note, for clarity, that the date on which you make your first commercial use of an Oculus Product pursuant to these Oculus Commercial Terms will constitute such acceptance date). Such notice to us must be submitted to the address here: Facebook, Inc., 1601 Willow Rd. Menlo Park, CA 94025. All Commercial Claims between us, whether subject to arbitration or not, will be governed by California law, excluding California’s conflict of laws rules, except to the extent that California law is contrary to or preempted by U.S. federal law.
These Oculus Commercial Terms may be updated from time to time to accurately reflect our services and practices. Unless otherwise required by law, we will notify you at least 30 days before we make changes to these Oculus Commercial Terms and give you an opportunity to review them before they go into effect, to the extent such changes would adversely impact your commercial use of Oculus Products or your responsibilities under these Oculus Commercial Terms. We hope that you will continue using Oculus Products, but if you do not agree to our updated Oculus Commercial Terms, you must cease commercial use of Oculus Products, and, if you are an entity, cause your employees and representatives to do the same. Your continued commercial use of Oculus Products after the effective date of the updated Oculus Commercial Terms constitutes your acceptance of those terms.
The Facebook Products, including Oculus Products, all related software, technical data, and documentation, are “Commercially available off-the-shelf (COTS) items” as defined in Section 2.101 of Title 48 of the US Code of Federal Regulations. We provide the Facebook Products for public sector end use, including US Government end use, with the same rights as all other end users pursuant to these Oculus Commercial Terms and the Oculus Terms. If a public sector entity, including a U.S. Government entity, has a need for any additional rights, it must negotiate directly with us to determine if the parties can negotiate an acceptable amendment to these Oculus Commercial Terms and the Oculus Terms that must be included in any applicable contract or agreement.
With respect to your commercial use of the Oculus Products, if there is a conflict between, on the one hand, these Oculus Commercial Terms and, on the other hand, the Oculus Terms or the Facebook Terms of Service, these Oculus Commercial Terms shall govern to the extent of the conflict.
These Oculus Commercial Terms are effective until terminated and will terminate when the Oculus Terms between you and us are terminated. Upon such termination, the provisions in Sections 7—16 of these Oculus Commercial Terms will remain in place and survive termination.
For avoidance of doubt, the provisions stated in Section 4.5 of the Facebook Terms of Service also apply to these Oculus Commercial Terms. Facebook may at any time assign, transfer, charge, or subcontract all or any of its rights or obligations under these Oculus Commercial Terms. Nothing in these Oculus Commercial Terms limits any of our rights under the Facebook Terms of Service or any additional terms that they reference.
The Terms (and any agreements incorporated by reference therein) make up the entire agreement between you and Facebook regarding your commercial use of Oculus Products, and supersede any prior agreements between you and us regarding such use.