Terms of Sale – Hardware
TERMS OF SALE – GENERAL SALES AND PROFESSIONALS PROGRAM
BY CLICKING ON THE BUTTON TO SUBMIT AN ORDER, OR BY OTHERWISE CONTINUING WITH A PURCHASE/LICENSE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT UNDERSTAND OR AGREE WITH THE TERMS, YOU MUST NOT CLICK THE BUTTON TO SUBMIT AN ORDER OR OTHERWISE PROCEED WITH THE PURCHASE/LICENSE.
NOTION SOFTWARE IS FOR INFORMATION PURPOSES ONLY / LANGUAGE
THE SOFTWARE AND SERVICES ARE FOR INFORMATION PURPOSES ONLY AND ARE NOT INTENDED TO BE USED FOR ANY OTHER PURPOSE, INCLUDING MEDICAL OR DIAGNOSTIC-RELATED PURPOSES.
THE SOFTWARE, USER INFORMATION, USER INTERFACE, SUPPORT, COMMUNICATION AND AGREEMENT, ARE ONLY BE PROVIDED IN CERTAIN LANGUAGES. DO NOT USE THE NOTION OR OTHER NEUROSITY PRODUCTS, UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND ONE OF THE AVAILABLE LANGUAGES. FURTHER, DO NOT INSTALL, DOWNLOAD OR USE THIS SOFTWARE UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND THIS AGREEMENT.
TO ENSURE THAT YOU UNDERSTAND THE ABOVE TWO PARAGRAPHS, TRANSLATIONS OF THESE PARAGRAPHS ARE SET OUT AT THE END OF THIS DOCUMENT (UNDER THE HEADING ‘TRANSLATIONS’). ORDERING
Application. These Terms will apply to all orders placed by you, or as otherwise referenced in a written agreement between you and Neurosity. You acknowledge that the information contained on the Site may contain technical inaccuracies or typographical errors. The Site, all content available on or through the Site, and all related communications are provided on an “AS IS” basis. Neurosity makes no representations or warranties as to the completeness, accuracy, adequacy or reliability of any information contained on or through the Site.
Requirements. To place an order, you must:
provide up-to-date, complete and accurate registration information as requested by Neurosity on the Site, which may include, without limitation, your first and last name, institution name, mailing address, phone number and email address;
provide up-to-date, complete and accurate payment information (for example, credit card information for a credit card that is valid and legally registered to you);
be at all times in compliance with these Terms and applicable law including, without limitation, the requirement to be of the age of majority in your jurisdiction; and
in relation to purchases under Neurosity’s Professionals Program, (A) be a member of Neurosity’s Professionals Program at the time you place an order and thereafter for at least as long as you possess or control inventory of Products; and (B) comply at all times with the requirements of such program as they may be amended from time to time.
Accuracy. You specifically agree that Neurosity may rely on the accuracy of the information you provide to Neurosity (including, without limitation, any information you have provided as part of your application for the Professional’s Program, if applicable), and that Neurosity will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to Neurosity.
General Sales are End User Sales Only. All Products available through the Site for general sale are intended for end user customers only. You may not purchase Products for resale, and Neurosity reserves the right to refuse or cancel your order or to deny you any return rights, if we suspect you are not complying with these terms and conditions.
Neurosity Professionals Program Sales. All Products purchased under Neurosity’s Professionals Program are intended only for your personal use or your direct sale to your end user customers as described in your application for the Professionals Program (“Authorized Purchaser”). You may not purchase Products for resale to anyone other than Authorized Purchasers. You may not sell any Products online or indirectly to anyone other than your Authorized Purchasers. All Product purchases are subject to Neurosity’s end user license agreement at http://www.neurosity.co/legal.
We reserve the right to refuse or cancel your order, or to deny you any return rights, if we suspect you are not complying with these terms and conditions. You will ensure that you and any anyone representing you: (i) does not participate in any threatening, deceptive, tortious, offensive, misleading, obscene, illegal, or unethical practices that may be detrimental to Neurosity or to any Neurosity products and/or services; (ii) only make representations about Neurosity and Neurosity products and/or services that are fair and accurate; (iii) does not make any representations, warranties, or guarantees to end users concerning any Neurosity products and/or services without Neurosity’s prior express written authorization; (iv) comply at all times with all applicable federal, national, state, provincial and local laws and regulations including, without limitation, those relating to tax, foreign exchange, anti-corruption, transfer of money, marketing, consumer protection, data protection, anti-mafia, organized crime, anti-terrorism or maintenance of public order; (v) does not sell refurbished or used Neurosity products, or any parts or materials associated therewith, in whole or in part; (vi) does not engage in business practices, promotions or advertising which may be injurious to the reputation or business goodwill of Neurosity and/or its affiliates; (vii) upon receiving notice of removal of a product, forthwith stop marketing and distribution of Neurosity products specified in such notice; (viii) does not modify any Neurosity products or replace any software on any Neurosity product or modify any point of sale packaging; and (ix) does not use any Neurosity marks (including, without limitation, as part of any press releases, products, services, domain name, company name, marketing, and/or promotional materials) without Neurosity’s prior express written authorization and in compliance with the Neurosity Branding Guidelines (which you must obtain from Neurosity).
DELIVERY AND SHIPPING
Acceptance Required. All orders are subject to acceptance by Neurosity, and any rejection of an order will be made in Neurosity’s sole discretion, regardless of whether the order was confirmed through the Site or otherwise. If you have been charged for an order that is subsequently rejected by Neurosity, Neurosity will refund the amount of that order.
Delivery Requirements. Neurosity will make commercially reasonable efforts to accommodate your delivery requirements; however, delivery is subject to availability of resources at the time of order placement. Neurosity will therefore not be liable in any way for any delay or damage arising from Neurosity’s failure to meet your delivery requirements or any specified delivery dates.
Shipping Terms. All shipments will be made FCA Neurosity’s facilities (Incoterms 2010). Risk of loss for Products will pass to you in accordance with the FCA (Incoterms 2010) shipping. You are responsible for insuring the shipment and for pursuing the carrier for any loss occurring in transit.
Importer of Record. As you are the importer of record in the destination country, you are responsible for: (a) paying for all import fees such as import duties and customs taxes, and (b) ensuring that Products can be lawfully imported, and comply with all laws and regulations of the destination country. With respect to each item for which import fees have been calculated, you authorize Neurosity to designate a carrier (“Designated Carrier“) to act as your agent with the relevant customs and tax authorities in the destination country, to clear your merchandise, and, if applicable, process and remit your actual import fees for such item. Your order may include an estimate (“Import Fees Estimate“) of some or all of the import fees that will be levied on the items in your order for shipment. By placing your order, you agree to allow Neurosity to collect the Import Fees Estimate for the applicable items in your order. This amount will be used, on your behalf, to reimburse the Designated Carriers for the import fees that they have paid on your behalf to the appropriate authorities of the destination country. The Import Fees Estimate may or may not include customs duties. If they do not include customs duties, you will be responsible for making arrangements with the customs authorities for payment of duties. The Import Fees Estimate may be more or less than the final actual amount of import fees due and payable. Neurosity has no control over the import fees and cannot always predict with 100% accuracy what the final actual amounts may be. For greater certainty, you should contact your local customs office for further information on the import taxes and customs duties that may be applicable to your purchase. You agree and acknowledge that: (a) the actual import fees may be more or less than the Import Fees Estimate; and (b) you will NOT receive any refund in the case that the actual import fees differ from the Import Fees Estimate.
Check Order. You are responsible for examining all shipments promptly upon receipt. If you discover any shortages or incorrect products in the shipment, you must notify Neurosity immediately. Please check the order carefully, as no claim for shortages or deficiencies will be accepted by Neurosity after five (5) days from delivery of the products.
PRICING AND PAYMENT
Currency. If the currency for your purchase is not expressly stated, then the prices are in US dollars.
Prices. Neurosity reserves the right to change its standard prices without notice. Prices are exclusive of, and you will pay: (a) all applicable federal, state, provincial and local taxes (including all applicable sales, use, consumption, goods and service, value added, and withholding taxes), unless you have provided Neurosity with an appropriate tax exemption certificate or number, and (b) all fees and charges related to customs, duties and brokerage. Neurosity may charge sales tax for sales of Products through the Site. Any sales tax charged will be indicated during the checkout process.
Rejected Payments. Where your payment is rejected for any reason, you will be responsible for any fees and charges associated with such rejection, as well as interest on the amount owing. Interest will be the lesser of 1.5% per month or the maximum rate permitted by law, commencing on the date that your payment was rejected. Neurosity may, in its sole discretion, delay shipment of, or cancel, your order where your payment is rejected.
TITLE, INTELLECTUAL PROPERTY, USE RESTRICTIONS AND LICENSE GRANTS
Title to Products. Title to any Products and any other products bought by you will pass to you upon your full payment for such Product in accordance with Section 4 (Pricing and Payment).
Title to Software. Notwithstanding the foregoing, title to software will not pass to you, and you are hereby put on notice that your use of any Neurosity software supplied to you is governed by and subject to the EULA as provided to you with the software or otherwise located at http://www.neurosity.co/legal. The EULA may be included as a file with the software that you download for use with hardware acquired under this Agreement. Use of any third party software will be governed by and subject to your agreeing to the terms of all applicable third party agreements and licenses respecting such third party software.
Intellectual Property Rights. You do not acquire any intellectual property or other proprietary rights under these Terms including, without limitation, any right, title or interest in and to patents, copyrights, trademarks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to any Neurosity products, software and/or services, or any part thereof. Your only rights in relation to Neurosity products, software and/or services, or any part thereof, will be those rights expressly licensed or granted to you under these Terms or in another separate written agreement between you and Neurosity. Any rights not expressly granted under these Terms are reserved.
Restrictions/Representations. Except to the extent expressly agreed upon in writing by you and Neurosity, you will not (and will not allow any third party to): (a) use Product for any purpose other than as authorized under these Terms, or use any associated software for any purpose other than as authorized under the applicable end user license agreement for the particular software; (b) remove or alter any copyright notice or any other notices that appear on Product or the associated software, or modify or create derivative works thereof; (c) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of Product or any associated software; (d) provide, lease, lend, sublicense, use for timesharing or otherwise use or allow the use of Product or the associated software for the benefit of any third party (other than Authorized Purchasers in relation to purchases/licenses under Neurosity’s Professionals Program only); or (e) use any Product or any associated software in violation of any laws or regulations, or use, transfer, transmission, export, or re-export of Product or any associated software or portion thereof in violation of any export control laws or regulations.
User Generated Content. For the purposes of these Terms, “User Generated Content” means any text, feedback, ideas, suggestions, documents, proposals, photographs or other data and information you, Authorized Purchasers (in relation to purchases/licenses under Neurosity’s Professionals Program only), or anyone acting on your behalf submits through the online and mobile services made available by Neurosity from time-to-time including, but not limited to, certain websites including the any Site, widgets, computer programs and mobile applications hosted by or on behalf of Neurosity (collectively, the “Neurosity Services”). You represent that your User Generated Content will not: (a) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; (b) violate any law, statute, ordinance or regulation; (c) be obscene or contain child pornography; and (d) be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate. You agree to indemnify, hold harmless and defend Neurosity and Neurosity’s affiliates, service providers and licensors from and against any claims or suits including, without limitation, attorney fees and expenses, which arise or result from any breach of this Section by you or by another who has access to or use of Product, Neurosity Services, or User-Generated Content through you or products purchased through you.
Third Party Equipment, Software and Services. You are responsible for the selection, implementation, and performance of any and all third party equipment, software and services used in connection with Products, and for compliance with any licenses, conditions, laws, rules and/or regulations respecting the use of Products and any equipment, services or software used in conjunction with Product.
Compatibility. Neurosity assumes no responsibility with regard to the performance or use of your smartphone/tablet/other third party equipment with the Products.
Permitted Age. Neurosity Services, software and products should only be used by individuals aged 13 years or older (“Permitted Age”). If the user is of the Permitted Age or older but under the age of majority in the jurisdiction in which the user is domiciled, the user should review these Terms and the applicable end user license agreements for any software with the user’s parent or guardian to make sure that the parent or guardian understands these Terms and the applicable end user license agreements.
Informational Purposes Only. Content generated or found through Neurosity Services or products is for informational purposes only and is not intended to replace the relationship between you and your physician or other health-care provider. Neurosity is not a licensed medical or health-care provider and has no expertise in diagnosing, examining, or treating medical conditions of any kind.
Reseller of Third Party Products. If Neurosity is reselling any Third Party Products to you pursuant to these Terms, Neurosity will pass through to you any transferable warranties and indemnities provided to Neurosity by the provider of the Third Party Products including, without limitation, any warranties for the products and indemnities for intellectual property infringement. To the extent permitted by law, in connection with Third Party Products, notwithstanding anything to the contrary, Neurosity provides no indemnities and makes no other warranty, express or implied including, without limitation, warranty of merchantability, fitness for purpose or non-infringement. For the purposes of these Terms, “Third Party Product(s)” means any software, application, technology, standard or specification, product or service developed by or on behalf of a third party including, without limitation, the Notion Hard Carrying Case.
Design. Neurosity reserves the right to make changes in the design of Product and/or other Neurosity Services and/or any associated software without the obligation to make equivalent changes to products that have previously been supplied to you.
Orders. Except as expressly set forth in these Terms, you will not be entitled to change or cancel any order that has previously been accepted by Neurosity without the prior written agreement of Neurosity. You shall not be entitled to any refund, except to the extent expressly stated in this Agreement.
LIMITED WARRANTIES, EXCLUSIONS AND SUPPORT BY NEUROSITY
Statutory Protections. THE APPLICABLE LAWS OF SOME COUNTRIES MAY NOT ALLOW THE EXCLUSION OF IMPLIED GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS AND/OR THE LIMITATION OR EXCLUSION OF LIABILITY EITHER IN CONTRACTS OR IF YOU ARE A CONSUMER, AND AS SUCH, SOME OR ALL OF THESE EXCLUSIONS MAY NOT APPLY TO YOU, IN WHICH CASE THESE TERMS DO NOT AFFECT YOUR STATUTORY RIGHTS.
Limited Warranty. Neurosity and/or its affiliates have provided you with a limited warranty (which can be found at http://www.neurosity.co/legal) relating to defects in materials or workmanship for the Notion headwear. This limited warranty sets out certain situations when Neurosity and/or its affiliates will, or will not, provide a remedy for the Notion headwear. You may have legal (statutory) rights that are in addition to those set out in the limited warranty (such as consumer laws in the country in which you live) (“Consumer Rights”). None of your Consumer Rights are limited or excluded. You must follow Neurosity’s return process described in the limited warranty in order to make a claim under the limited warranty.
EXCEPT TO THE EXTENT EXPRESSLY SET OUT IN THE LIMITED WARRANTY, NOTION HEADWEARs AND ANY OTHER PRODUCTS/SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS ARE PROVIDED “AS IS AND WITH ALL FAULTS” AND NEUROSITY DISCLAIMS ALL GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO NOTION AND ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS INCLUDING, BUT NOT LIMITED TO: (A) THE WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT OF THIRD PARTY RIGHTS; (B) PROVISION, DELAY OF OR FAILURE TO PROVIDE SUPPORT OR SERVICES, INFORMATION, SOFTWARE AND RELATED CONTENT THROUGH THE NOTION HEADWEARS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS OR OTHERWISE ARISING OUT OF THE USE OF THE NOTION HEADWEAR AND/OR ANY OTHER PRODUCTS OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS; (C) THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; AND/OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.
Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN LIABILITY FOR DEATH OR BODILY INJURY RESULTING FROM NEUROSITY’S GROSS NEGLIGENCE, NEUROSITY AND NEUROSITY’S AFFILIATES, SERVICE PROVIDERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSS OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE OF PRODUCTS OR SERVICES OR FUNCTIONALITY, BUSINESS INTERRUPTION, LOSS, INACCURACY, INTERRUPTION OR CORRUPTION OF INFORMATION (INCLUDING DATA OR OTHER PECUNIARY LOSS)) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CLAIMS INCLUDING, WITHOUT LIMITATION, ARISING FROM OR RELATED TO: (a) USE OF NOTION HEADWEARS AND/OR ANY OTHER PRODUCT AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS; OR (b) THE INABILITY TO USE OR THE NON-PERFORMANCE OF NOTION HEADWEARS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS, IN ALL CASES WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, EVEN IF NEUROSITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NEUROSITY AND NEUROSITY’S AFFILIATES, SERVICE PROVIDERS AND LICENSORS EXCEED THE NET PURCHASE PRICE PAID BY YOU TO NEUROSITY FOR AFFECTED PRODUCTS AND SERVICES ACQUIRED BY YOU UNDER THESE TERMS IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Basis of the Bargain; Exclusions. The disclaimers of warranties and limitations of liability set forth above are fundamental elements of the basis of the agreement between you and Neurosity. You understand and agree that Neurosity would not be able to economically or reasonably provide the products and services to you without these limitations.
Support. Neurosity will not be obligated to provide any support or maintenance services for Notion headwears and any other products and services unless otherwise expressly agreed upon in writing by you and Neurosity. However, this provision does not relieve Neurosity of its warranty obligations described in Section 7.b. (Limited Warranty).
CANCELLATION AND TERMINATION
Termination Rights. Neurosity may terminate these Terms upon notice to you, and may also stop any products in transit to you and suspend the delivery of products and/or services to you, without penalty, if you: (a) fail to make any payment due under these Terms; or (b) commit a breach of these Terms (other than payment) and fail to remedy such breach within thirty (30) days of receiving notice of such breach.
Effect of Termination. Upon termination of these Terms for your breach: (a) all of Neurosity’s performance obligations hereunder will immediately cease, (b) your license to use any software provided to you hereunder will immediately cease, and you will either return all such software to Neurosity or confirm, upon request from Neurosity, that such software has been destroyed and (c) any payments then due to Neurosity become immediately payable in full.
ACCOUNTS AND USER CONDUCT
Third-party Service Provider. In certain regions or for certain products, a third-party service provider may fulfill orders made on Neurosity’s online store. In such regions, the terms and conditions contained in these Terms will still apply.
Product Information. Please refer to product safety and regulatory information and trademark attribution statements located at http://www.neurosity.co/legal.
Interpretation. If any provision, clause or term of these Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of that provision, clause or term will not affect the validity or enforceability of the remaining provisions, clauses and terms or the validity or enforceability of that provision, clause or term in any other jurisdiction. If any provision of these Terms is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provisions shall be severed from the Terms for the purposes of that jurisdiction and the other provisions shall remain in full force and effect. No waiver by either party of a breach or omission by the other party under these Terms will be binding on the waiving party unless it is expressly made in writing and signed by the waiving party.
Governing Law. Unless stated otherwise below, these Terms, and all Product requirements, will be governed by, and construed in accordance with, the laws of the state of Delaware, United States and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of New York City, New York, USA.
If you are domiciled in a country located in Europe, Middle-East or Africa, these Terms will be governed and construed in accordance with the laws of England and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of London, England.
If you are domiciled in a country located in Asia-Pacific, these Terms will be governed and construed in accordance with the laws of Singapore and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Singapore.
If you are domiciled in the United States of America, these Terms will be governed and construed in accordance with the laws of New York, USA and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of New York City, New York, USA.
The United Nations Convention on Contracts of the International Sale of Goods is expressly excluded.
Survival. The provisions of these Terms that under a commercially reasonable interpretation reveal that the parties likely would have such provisions survive termination or expiration of these Terms including, without limitation, Sections 5, 6, 7, 8, 9 and 10 will survive the termination or expiration of this Terms.
Contact. If you have any questions or inquiries regarding these Terms or any order or purchase, please contact Neurosity through https://support.neurosity.co/ or 240 Kent Ave, Brooklyn, New York, 11249. Please note that e-mail communications will not necessarily be secure, so please do not include credit card information or other sensitive or personal information in your e-mail correspondence with Neurosity.
Language. If these terms are translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.
Electronic Communications. For contractual purposes, you consent to receive communications electronically from Neurosity and you agree that all agreements, notices, disclosures and other communications that Neurosity provides to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights related to electronic communications.
Entire Agreement. These Terms constitute the entire agreement between the parties and supersedes all previous agreements relating to the subject matter hereof. These Terms may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties.
These Terms were last updated on September 10, 2019.