Welcome to Neurable, the creator of a proprietary brain-computer interface that allows people to control software and devices using their brain activity (the “Neurable Technology”). The Neurable Technology is made available to game publishers, virtual reality and augmented reality application developers, and others, through an EEG Headset (the “Headset”) and a software development kit (collectively, the “Neurable Developer Kit”) that enables developers to embed the Neurable Technology in their applications. These terms and conditions govern the use of the Neurable Developer Kit.
Please read this agreement carefully. By accessing or using the Neurable Developer Kit, Neurable Headset or Neurable SDK, you are agreeing to the terms below.
DefinitionsAs used in this Agreement (defined below):
“Agreement” means these Neurable Developer Kit Terms.
“Application Data” means data collected by, as a result of or in connection with the Integrated Application, including biometric data and ocular motor data.
“Developer Application” means any application program developed exclusively by you. Developer Application includes, but is not limited to, any application whether standalone, embedded into another product, or offered as a software-as-a-service or similar hosted service.
“Documentation” means user guides (in print-on-paper or electronic form) provided by us to you that are intended to provide users instruction on the operation of the applicable Neurable product or service.
“Intellectual Property Rights” will mean and include all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask works; (b) trademark and trade name rights, domain name rights, and similar rights; (c) trade secret rights; (d) patents and industrial property rights; (e) other proprietary rights in intellectual property of every kind and nature; and (f) all registrations, renewals, extensions, continuations, divisions, or reissues of, and applications for, any of the rights referred to in clauses (a) through (e) above.
“SDK” means the current code version of the provided software and associated application programming interface, as well as any related materials, including the Documentation, installation tools, sample code, source code, software libraries and any error corrections, updates, or new releases that we elect, in our sole discretion, to make available to you.
Developer Kit License. Subject to the restrictions contained in this Section 3, we grant to you a limited, nonexclusive, nontransferable (other than as provided in Section 13), nonsublicensable, revocable, license to use the Headset and SDK solely as follows: (a) to internally use and modify the SDK for the sole purpose of developing Developer Application(s); (b) compile such SDK source code or derivatives thereof into executable object code (“Runtime Software”); (c) integrate the Runtime Software into the Developer Application to create an integrated application (“Integrated Application”); and (d) use the Headset and the Runtime Software as contained in the Integrated Application to test, demonstrate and use the Integrated Application internally for internal business or academic research purposes and/or for the purpose of determining whether to enter into a distribution agreement with us.
Restrictions. This Agreement does NOT permit you to, and unless expressly authorized in a separate, mutually-executed agreement between the parties, you are prohibited from: (a) authorizing or enabling any third party to evaluate, test, try or use any Integrated Application; (b) using the Integrated Application for any business purpose (e.g., for your internal business purposes) other than the purpose specified in (a) above; or (c) distributing any Integrated Application, whether or not any fees are paid to you by your licensees, customers or any other third party. If you would like to use or distribute the Integrated Application, other than as contemplated herein, please contact email@example.com to learn about distribution licensing models.
No High Risk Use. The SDK is not fault tolerant, and accordingly, is not designed or intended for use in any software, application or situation where failure or fault of any kind could lead to death or serious bodily injury of any person, or to severe physical, environmental or property damage (“High Risk Use”). The SDK may only be used to develop applications permitted hereunder that do not involve High Risk Use. High Risk Use includes, without limitation, aircraft navigation, military and industrial use, control of nuclear, chemical facilities, and of other modes of human mass transportation , as well as medical, surgical, or other use intended to support or sustain life .
You are required to include our copyright notices in any Integrated Application. You may not use our name, logo or trademarks to market your products. You may make a limited number of copies of the SDK to be used by your employees or consultants as provided herein, and not for general business purposes, and such employees or consultants will be subject to the obligations and restrictions in this Agreement.
Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the SDK and all related Documentation, and all enhancements and improvements thereto, will be the Confidential Information of Neurable.
Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request, including in connection with the termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
Confidentiality of Agreement. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law; (b) pursuant to a mutually agreeable press release or (c) in connection with a proposed merger, financing, or sale of such party’s business.
Warranties and Disclaimers
Mutual Warranties. Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) the delivery and performance of this Agreement does not and will not materially conflict with, violate or result in a breach of any provision of any government or court order, judgement or decree, or with any other contract or agreement to which it may be bound; and (c) it will comply with all laws, rules and regulations applicable to it.
By Developer. You further represent and warrant that you will not make, or attempt to make, any representations, warranties, guarantees or commitments on behalf of or with respect to, Neurable in connection with any Integrated Application and that you will not disparage or defame Neurable in any manner.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Headset and SDK and THE documentation ARE PROVIDED “AS IS,” AND WE MAKE NO (AND HEREBY DISCLAIM ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, OR SATISFACTORY QUALITY, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE. WE DO NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE developer kit WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
HARDWARE, SOFTWARE, PRODUCTS, SERVICES, AND CONTENT FROM OUR THIRD-PARTY SUPPLIERS OR LICENSORS, INCLUDING BUT NOT LIMITED TO THE HTC VIVE AND THE TOBII VR EYE-TRACKING RETROFIT, MAY BE MADE AVAILABLE TO YOU THROUGH, OR AS PART OF, THE NEURABLE DEVELOPER KIT (COLLECTIVELY, “THIRD-PARTY PRODUCTS”). BECAUSE WE DO NOT CONTROL THESE THIRD-PARTY PRODUCTS, YOU AGREE THAT WE ARE NOT RESPONSIBLE FOR ANY SUCH THIRD-PARTY PRODUCTS. WE DO NOT MAKE ANY WARRANTIES, REPRESENTATIONS, ENDORSEMENTS, OR GUARANTEES REGARDING, AND ACCEPT NO RESPONSIBILITY FOR, THE ACCURACY, RELIABILITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUALITY OF THE THIRD-PARTY PRODUCTS. YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE TO YOU IN CONNECTION WITH ANY THIRD-PARTY PRODUCTS.
Limitation of Liability
Types of Damages. EXCLUDING MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
Amount of Damages. NEURABLE’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED ONE HUNDRED DOLLARS ($100). IN NO EVENT WILL OUR SUPPLIERS or OTHER licensors HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
Basis of the Bargain. We each agree that the limitations of liability set forth in this section will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. We acknowledge that the availability of the Neurable Developer Kit and the other terms of this Agreement have been determined in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between us.
Ownership. We reserve all right, title and interest (including all Intellectual Property Rights), in the Headset and the SDK. Except as expressly set out in this Agreement, this Agreement does not confer to you any right, title or interest in the Headset, SDK or the Neurable Technology, and you will not acquire any license or other Intellectual Property Right or interest thereunder, whether by estoppel, by implication or otherwise.
Restrictions. Except as expressly permitted by Neurable in writing, you will not: (a) modify, translate or create derivative works of the Headset or SDK; (b) reverse engineer or otherwise attempt to obtain any source code of the SDK; (c) provide any third party with access to the Headset or SDK, or otherwise use the Headset or SDK for the benefit of any third party including in connection with a software-as-a-service, a cloud service, applicable service provider or similar offering; (d) use the Headset or the SDK to build a similar or competitive product or service; (e) use any device or software that damages, interferes with or disrupts the Headset or the SDK or (f) use the Headset or the SDK in a manner inconsistent with this Agreement.
Open Source Software. Certain items of software may be provided with the Neurable Development Kit and are subject to “open source” or “free software” licenses (“Open Source Software”). Each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software, not this Agreement. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, we make such Open Source Software, and our modifications to that Open Source Software, available by written request at the notice address specified above. You can obtain a copy of the Open Source Software we distribute at the following: open-source.neurable.com.
Feedback. In the event that you provide us any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Headset or the SDK (collectively “Feedback”), you hereby grant to us a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same, and such right will survive any expiration or termination of this Agreement.
No Support. You acknowledge and agree that we are under no obligation to provide upgrades, modifications, enhancements or revisions that we may make to the Headset or the SDK or any support or engineering assistance of any sort to you or any other party.
NON-BLOCKING OF NEURABLE DEVELOPMENT. You acknowledge that we are currently developing or may develop technologies and products in the future that have or may have design and/or functionality similar to Developer Applications and/or Integrated Applications that you may develop based on the licenses granted herein. Nothing in this Agreement will impair, limit or curtail our right to continue with our development, maintenance and/or distribution of any of our current or future technology or products.
IndemnificATION. To the maximum extent allowable by applicable laws, rules, and regulations, you agree to indemnify, defend and hold harmless Neurable, our officers, directors, co-branders and other partners, employees, consultants and agents, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) as a result of or arising from your breach of this Agreement or your use of the Neurable Developer Kit, the Headset, the SDK, the Neurable Technology and / or the Integrated Application.
Term and Termination. The Agreement will in effect for a period of five years from the date that you are eligible to download the SDK. You acknowledge and agree that we, at our sole discretion, may terminate your use of the SDK with no less than 3 days prior notice for any reason. You agree that we will not be liable to you or any third party for termination of your access to the SDK. In the event of any termination, you will immediately cease use of the SDK.
Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licensed rights granted by us in this Agreement will immediately cease to exist; and (b) within ten (10) days after the effective date of termination, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 4. Sections 1, 3.2, 3.3, 4 through 10, 11.2, 12 and 13 will survive expiration or termination of this Agreement for any reason.
U.S. GOVERNMENT END-USERS. Each of the Developer Kit, the Headset, the SDK, the Neurable Technology is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Developer Kit, the Headset, the SDK, the Neurable Technology with only those rights set forth therein.
GENERAL TERMS. You are responsible for compliance with all applicable laws. This Agreement and the relationship between you and Neurable will be governed by the laws of the Commonwealth of Massachusetts, without regard to any conflicts of law principles. Any legal action, suit or proceeding arising out of or relating to this Agreement, or your use of the Headset or SDK must be instituted exclusively in the federal or state courts located in Boston, Massachusetts and in no other jurisdiction. You further consent to exclusive personal jurisdiction and venue in, and agree to service of process issued or authorized by, any such court. This Agreement is personal to you, and you may not transfer, assign or delegate your right and/or duties under this Agreement without our prior written consent and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. This Agreement constitutes the complete and exclusive agreement between you and Neurable with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
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