Terms of Service
Crown SUBSCRIPTION SERVICE TERMS
Last Updated – July 27, 2023
PLEASE CAREFULLY REVIEW these Crown Subscription Service Terms (the “Terms”). The Terms are a binding legal agreement between Neurosity, Inc. and/or its Affiliates (“Neurosity”, “we” or “us”), a Delaware corporation located at 240 Kent Ave, Brooklyn, NY, 11249, and you or, if applicable, the company, institution or other legal entity you represent (collectively, “you”, “your”). You and Neurosity are each a “Party” and collectively the “Parties”. If you are a company, institution, or other legal entity, you may permit Authorized Users to access and use the Crown Services in compliance with these Terms.
Crown SERVICES ARE ONLY PROVIDED IN ENGLISH ONLY. DO NOT REGISTER FOR, ACCESS, OR USE ANY Crown SERVICE UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND THIS LANGUAGE.
ACKNOWLEDGMENT OF TERMS OF SERVICE:
By accessing or using a Crown Service you agree to be bound by these Terms. By registering for, accessing, or using any Crown Service, or otherwise accepting these Terms, or ‘clicking’ accept (if applicable), you acknowledge that you have read, understood, and agree to be bound by these Terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MUST NOT REGISTER FOR, ACCESS, OR USE ANY Crown SERVICES, OR ALLOW ANYONE ELSE TO DO SO. If you register for or access or use a Crown Service on behalf of an organization (such as an organization identified as part of the registration process or on an invoice or subscription order): (a) you are agreeing to the Terms for and on behalf of that organization and promising to us that you have the authority to bind that organization to the Terms; and (b) other than in this sentence, which applies to you individually, the references to “you”, “you're” will mean that organization that you represent.
Notwithstanding anything to the contrary, we reserve the right to update and revise the Terms at any time. We will make sure that the “Last Updated” date at the top of this page is changed so you can tell when the Terms were last changed. If we choose to notify you about the modification of the Terms, we may do so via our preferred form of notice which may include by email, on our website, or within a third-party application store or the Crown Service. Notwithstanding whether we provide any notice of modifications to the Terms, by continuing to access and/or use any Crown Service after the Terms are modified, you are agreeing to the modifications to the Terms. If you do not agree with a modification to the Terms, you must cease accessing and using the Crown Service.
If you: (a) have any comments or questions regarding the Terms, (b) wish to report any violation of the Terms, (c) wish to terminate your Crown Service during the Trial Period (as defined below); or (d) encounter content or activity you find inappropriate or otherwise believe to be a violation of the Terms, please contact us at https://support.neurosity.co.
The use of “for example”, “includes” and “including” are not limiting, and “all” includes “any” and “any” includes “all”. Capitalized terms used but not defined elsewhere in the Terms will have the following definitions:
“Affiliate” means any party directly or indirectly controlling, controlled by, or under common control with Neurosity.
“Amendment” means an express written amendment to these Terms signed by Neurosity’s authorized signatory in which additional and/or different terms and conditions may apply to you.
“Authorized User(s)” means the following users that you authorize to access or use the Crown Service on your behalf: (a) your employees, agents, or independent contractors; or (b) others such as clients, students, or subscribers where the Crown Service is provided to your end user customers together with your other services and not on a standalone basis; or (c) other users expressly authorized to use and access the Crown Service by Neurosity in an Amendment.
“Branding Elements” means all trademarks, service marks, trade names, domain names, slogans, logos, screenshots (including screenshots of the Sensor Device), sounds, and other indicia of origin that appear on or in connection with any aspect of the Crown Services including: “NEUROSITY”, “Crown”, and all related branding elements, the status indicator of the Sensor Device (or similar status indicator).
“Branding Guidelines” means our branding guidelines and conditions for using our trademarks, trade names, service marks, and logos. We may modify the Branding Guidelines at any time. The Branding Guidelines may be made available to you through the Crown Service or our websites or otherwise can be requested at http://www.neurosity.co/support.
“Intellectual Property Rights” includes all intellectual property and proprietary rights of any nature or kind, whether protected, created, or arising under any applicable law, and all worldwide common law, statutory, and other rights in, arising out of, or associated therewith including trademarks, copyrights, patents, domain names, and trade secrets.
“Neurosity Materials” means (a) all materials that were created by or on behalf of Neurosity including the layout and flow of the Crown Service; and (b) any other materials created under the scope of the Terms. Neurosity Materials includes: (i) all originally created or licensed audio or visual assets, computer software, code, routines, tools, application engines, algorithms, inventions, and other technology contained in or used by us in the development of any Crown Service; (ii) the technical documentation, if any, of or concerning any Crown Service; (iii) any analytics data (other than User Content) generated from the use of any Crown Service; and (iv) any training or other materials made available pursuant to the Terms.
“Payment Processor” means one or more payment processors used by us from time to time to facilitate payments for the amounts specified in each form of invoice or subscription order.
“Payment Processor Services Agreement” means the Payment Processor’s service agreement in effect from time to time.
“Crown Service(s)” means Neurosity’s services. The Crown Services may be varied from time to time by Neurosity. Subject to the licenses granted to you pursuant to these Terms, the Crown Services include the documentation and materials and access to or use of Neurosity’s Websites and Branding Elements.
“Sensor Device” means any device or system of devices designed and/or developed by or on behalf of Neurosity, in whole or in part, which includes sensors that monitor users’ electrical activity of the brain, muscle activity, heart rate, heart rate variability, motion, respiration rate, eye movement, and other signals. Sensor Devices may include sensing devices such as headwear.
“Software” means our proprietary software including any updates and upgrades to such software.
“Third Party Application(s)” means any software, application, in-application purchases, technology, standard or specification, product, service, or website developed by or on behalf of a third party for installation and/or use in conjunction with any Crown Services including products and services provided by members of Neurosity’s Alliance Program. For clarity, Neurosity’s products and services specifically exclude Third Party Applications, and Third Party Applications will not be treated, construed, or interpreted as being supplied, authorized, endorsed, or otherwise provided by or on behalf of Neurosity.
“User Content” means anything generated by you, anyone authorized by you, your clients, or on your behalf through or as a result of the use of any Crown Service including written text, software, music, graphics, photographs, images, sounds, videos, messages, data, data feeds, metadata and personally identifiable information.
“Websites” means any domain or website provided by Neurosity used for Crown Services.
RIGHT TO USE Crown SERVICES
Evaluation Purposes (If Applicable). If the applicable invoice, subscription or Neurosity product description specifies that you are entitled to a trial period, such trial period will be limited to seven (7) days unless the invoice, subscription, or Neurosity product description specifies another period during which you may evaluate the Crown Service (“Trial Period”) and, notwithstanding anything else, in connection with such evaluation: (a) no fees will be payable by you during the Trial Period for the Crown Service you are evaluating; (b) access to the Crown Service will be provided “AS IS” and without any warranty; (c) unless otherwise specified in the invoice, subscription or Neurosity product description, you may terminate and/or cancel the evaluation during the Trial Period; (d) we may in our sole discretion, reduce or increase the Trial Period; and (e) in accordance with these Terms, we grant to you a limited personal, non-transferable, non-sublicensable, revocable and non-exclusive license during the Trial Period to access and use the Crown Service only for your internal evaluation and non-commercial use.
License Grant. In compliance with these Terms, and subject to your payment of all applicable fees (including applicable fees for all of your Authorized Users), we grant you a limited personal, non-transferable, non-sublicensable, and non-exclusive right during the Term for you and your Authorized Users to access and use the applicable Crown Service(s).
Scope of Use. You may access and use, or authorize your Authorized Users to access and use, the Crown Service only for your and your Authorized Users’ personal and internal business and research purposes. Except to the extent that you are authorized by Neurosity in an Amendment (in which case additional and/or different terms and conditions may apply to you), you are not permitted to provide or resell the Crown Service to anyone on a standalone basis. You agree to ensure that Authorized Users comply with these Terms and that all applicable fees for the Crown Service are paid to Neurosity in relation to the use of the Crown Service by all Authorized Users. We may, by Amendment, change the scope of your use of the Crown Services. If you wish to develop any applications for use with Sensor Device(s), or any other devices that use our Intellectual Property Rights, you may not do so under these Terms, and you must contact us at http://www.neurosity.co/support and enter into an appropriate agreement with us. You agree to use the Crown Service only for purposes as permitted by these Terms and in compliance with any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. We reserve the right to modify or impose any limitations on the use of the Crown Service at any time, with or without notice to you. Notwithstanding anything to the contrary, unless authorized by an Amendment, the Crown Service may not be accessed by a direct competitor of Neurosity.
End User License. Our Software is subject to the applicable End User Licence Agreement in effect from time to time as located at https://www.neurosity.co/legal (or as may otherwise be made available to you through the Crown Service or the Software from time to time).
Informational Purposes Only. You acknowledge that you are aware that: (a) content generated or found through the Crown Service and the Sensor Devices is for informational purposes only and is not intended to replace the relationship between a user and the researcher or the user’s physician or other healthcare professionals; (b) the Sensor Device is not a medical device and the information generated by the Sensor Device is not medical information; (c) the Sensor Device and associated applications are not designed to treat or diagnose any disease or medical condition; and (d) we are not a licensed medical or healthcare care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind. As of the Last Updated Date, our products and services are not Health Insurance Portability and Accountability Act (HIPAA) compliant.
Service Level Terms. Subject to the Terms, we will use commercially reasonable efforts to provide you access to the Crown Service. We do not make any commitment that any Crown Service will be available at all times and you agree that you are not eligible for any refunds, credits, or other compensation for any downtime.
Updates. From time to time, we may (but are under no obligation to) provide upgrades, patches, enhancements, or fixes for the Crown Services to our users generally without additional charge (“Updates”), and such Updates will become part of the Crown Service and subject to these Terms. We may cease supporting old versions or releases of Crown Services at any time in our sole discretion.
USE OF THE SERVICE
Unlawful and Restricted Uses. You agree to use the Crown Service only for lawful purposes and that you are responsible for your use of the Crown Service and your communications and User Content. You may not and will not permit or facilitate any other person to:
except as expressly permitted under Section 2.1 (Evaluation Purposes (If Applicable)) or Section 2.2 (License Grant), reproduce, copy, duplicate, license, rent, lease, loan, pledge, trade, sublicense, sell, resell, transfer, assign, convey, distribute, export or otherwise commercially exploit or make available to any third party any Crown Service or otherwise grant or transfer rights to any Crown Service, or any rights granted herein, in any form or by any media (electronic, mechanical, photocopy, recording, or otherwise);
directly or indirectly: (a) reverse engineer, decompile, disassemble, debug, hook, spoof, pirate or otherwise attempt to discover or reconstruct the source code, object code or underlying structure, ideas, know-how, techniques or algorithms relevant to any Crown Service or Sensor Devices; (b) modify, adapt, alter, edit, correct, publish, enhance, translate or create derivative works based on any Crown Service (except to the extent expressly authorized in an Amendment or expressly authorized within the Service); or (c) alter, remove, cover or otherwise obscure any copyright notices, trademark notices, other proprietary notices or labels, or any other intellectual property rights attaching to, displayed on or within any Crown Service, or any associated software, documentation or other materials or on or within the Sensor Device;
access the Crown Service in order to: (a) build a competitive product or service, (b) build a product using similar ideas, features, functions, or graphics of any Crown Service, or (c) copy any ideas, features, functions, or graphics of any Crown Service;
interfere with or disrupt the integrity or performance of any Crown Service;
attempt to gain unauthorized access to any Crown Service or its related systems or networks;
use any Crown Service in any manner that interferes with its normal operation or with any other user’s use of the Crown Service or our other products and services;
probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material including material harmful to children or in violation of privacy rights;
send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs;
interfere with or disrupt the integrity or performance of any Crown Service or the content or the data contained therein;
attempt to gain unauthorized access to any Crown Service or its related systems or networks;
access, tamper with, or use non-public areas of the Websites, our computer systems, or the technical delivery systems of its providers;
access or search or attempt to access or search the Websites by any means other than through our currently available, published interfaces that are provided by us, unless you have been specifically allowed to do so in an Amendment;
forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use any Crown Service, to send altered, deceptive, or false source-identifying information;
interfere with, or disrupt, the access of any user, host, or network including sending a virus, overloading, flooding, spamming, mail-bombing any Crown Service, or otherwise creating an undue burden on any Crown Service; or
use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Websites.
Access. Creating or maintaining any link from another application to any page at the Websites without the prior authorization of Neurosity is prohibited. Running or displaying the Websites, or any information or material displayed via the Websites in frames or through similar means on another website or application without the prior authorization of Neurosity is prohibited. Any permitted links to the Websites must comply with all applicable laws, rules, and regulations.
Local Law. Neurosity makes no representation that materials contained, described, or offered via any Crown Service are accurate, appropriate, or available for use in all jurisdictions, or that these Terms comply with the laws of any particular country. Users of the Crown Service use the Crown Service on their own initiative and are responsible for compliance with all applicable laws. Notwithstanding anything to the contrary, you agree that you and your users will not access the Crown Service from any territory where it is illegal and that you and your users, and not Neurosity, are responsible for compliance with applicable law.
Third-Party Applications. During use of the Crown Service, you may download, install, register for, access, use, and/or acquire Third Party Applications as a matter of convenience. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable the Third Party Application provider. You agree that you will comply with any license agreements and restrictions applicable to such Third Party Applications. Neurosity and its licensors will have no liability, obligation, or responsibility in relation to such activity. Neurosity does not endorse or control any Third Party Applications. You will access and/or acquire such Third Party Applications at your own risk and in no event will Neurosity or its licensors be responsible for any content, products, or other materials on or available from third parties (even if they are acquired through Neurosity).
Compensation. You will pay the amounts specified in each invoice or subscription. You must make payments in advance unless the applicable invoice or subscription contains payment terms that are different. Unless otherwise specified in the invoice or subscription, unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination and/or cancellation of your access to or use of the Crown Service. You will be responsible for all taxes associated with the Crown Service other than taxes based on our net income. Your access to and/or use of the Crown Service may be terminated or canceled without notice for any unpaid and due amount. We reserve the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Crown Service. Unless otherwise specified in the invoice or subscription, all amounts under the Terms are payable in U.S. dollars. Any amounts paid by you are non-refundable.
Compensation Collection. Payment processing services for the Crown Service are provided by a Payment Processor and you are subject to the applicable Payment Processor Services Agreement. By agreeing to the Terms or continuing to use the Crown Service, you agree to be bound by the Payment Processor Services Agreement, as it may be modified by the Payment Processor from time to time.
Changes to Fees. We will not increase the fee for the Initial Term (as hereinafter defined), however, subject to your agreement to pay additional amounts, incremental fees may be charged where new or additional functions are added or become available to you.
Reports, Records, and Audit. You must ensure that you, and anyone representing you, comply with Neurosity’s ordering and reporting requirements in effect from time to time, which may include providing Neurosity with written reports on the use of the Crown Services by you and your Authorized Users in the format, for the period and within the timelines as specified by Neurosity. To permit Neurosity to confirm compliance with this Agreement and applicable laws, while this Agreement remains in effect and for a period of two (2) years thereafter, you must keep accurate records including records about (a) the use of Crown Services by you and your Authorized Users; (b) any use of Neurosity’s trademarks and other intellectual property; and (c) compliance with the obligations of this Agreement. To assure such compliance, Neurosity and/or its auditors may inspect, both while this Agreement remains in effect and for a period of two (2) years thereafter, such records from time to time. Any such audits shall be conducted during regular business hours and shall not interfere unreasonably with your normal activities. If an audit reveals that you, or an Authorized User, has not complied with the obligations of this Agreement, you may be required to pay Neurosity’s reasonable costs of conducting the audit. This Section 5.4 does not apply to you if you are using the Crown Service for your personal use only.
INTELLECTUAL PROPERTY RIGHTS
Ownership. As between you and us, we will at all times be and remain, the sole and exclusive owner of the Neurosity Materials and all Intellectual Property Rights pertaining thereto. Nothing in the Terms will be deemed to grant or assign to you any proprietary or ownership interest or Intellectual Property Rights in or to any Crown Service, Neurosity Materials, or any derivatives of such, other than the license rights specifically set forth herein. Your sole rights thereto will be only those rights granted by Neurosity under these Terms.
Marks and other Intellectual Property. All Branding Elements are either our property or the property of our Affiliates or licensors. We retain the right to rescind and terminate and/or cancel the limited license granted hereunder at any point, for any reason. All rights not expressly granted herein by us to you are fully reserved by us, our Affiliates, and licensors. Some product names, logos, brands, and other trademarks featured or referred to within a Crown Service may not be owned by Neurosity, and are the property of their respective trademark holders. These trademark holders are not affiliated with, nor do they sponsor or endorse, Neurosity, the Crown Service, and/or Neurosity’s products and services. Further, you are granted no right or license in any of the aforesaid Branding Elements and further agree that you will not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) contained within the Crown Services. Each time you wish to use any of our Branding Elements, you must ensure that you comply with the then-current version of the Branding Guidelines. As between you and us, we will at all times be and remain, the sole and exclusive owner of the Branding Elements and all our Intellectual Property Rights. Nothing in the Terms will be deemed to grant or assign to you any proprietary or ownership interest or Intellectual Property Rights in or to Branding Elements or any derivatives of such. You will continually use your best efforts to protect Neurosity’s trademarks, trade names, patents, copyrights, and other proprietary rights, but will not initiate legal action against third parties for infringement thereof. You will promptly notify Neurosity of any infringement or improper or unauthorized use of which you have actual knowledge.
Confidentiality. In connection with the products and services provided to you under these Terms, you may, from time to time, be exposed to and may be furnished with certain information, material, or data relating to Neurosity’s products and services that are either specifically identified as confidential prior to or at the time of disclosure or would reasonably be considered confidential in the industries in which Neurosity operates. During the term of the Terms and for a period of five (5) years thereafter, you will keep confidential and not reveal or disclose to any third party any such proprietary or confidential information, material, or data of Neurosity. You will be directly liable for the acts or omissions of your employees, agents, contractors, and other authorized parties with respect to such confidentiality obligations. You agree to protect the Confidential Information with the same standard of care and procedures which you use to protect your own trade secrets, proprietary information, and other confidential information and, in any case, not less than a reasonable standard of care. The provisions of this paragraph will not apply to information that is or becomes publicly available through no fault of your own or your representatives, or information that is required to be disclosed pursuant to a court order or any applicable laws, rules, or regulations. Neurosity’s Confidential Information includes (a) any test results relating to the Crown Services; (b) Neurosity software’s source code; (c) technical specifications related to the Crown Services; (d) any non-publicly available pricing and Neurosity Materials; and (e) except for User Content, all technology, know-how, algorithms, testing procedures, software, structure, interfaces, specifications, reports, analysis and other technical information learned, accessed or derived by you pursuant to these Terms or pursuant to your use of or access to the Crown Service and/or Sensor Devices.
Publicity; Credit. Except where you are merely evaluating Neurosity’s software or products, Neurosity will have the ability to issue a press release in connection with the Terms and use your logo on the Neurosity website and other marketing materials.
User Content. All User Content is the sole responsibility of the person who originated such content. You acknowledge that all User Content you transmit (including any User Content you export from the Crown Service) or access using the Crown Service is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You remain solely responsible for all User Content that is transmitted (including any User Content you export from the Crown Service) in connection with the Crown Service, and you warrant that you possess all rights necessary to provide and share such User Content. Neurosity reserves the right to remove from any Crown Service any User Content that Neurosity, in its sole discretion, believes to be objectionable. You understand that, by providing User Content in connection with the Crown Service, you hereby grant Neurosity a non-exclusive, irrevocable, worldwide, royalty-free license to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use User Content in any media now existing or developed in the future only so far as required to deliver Neurosity services and products. You waive any rights of publicity, moral, or other similar such right with respect to User Content while used in accordance with the preceding sentence. Further, you represent and warrant that: (a) you have all the rights necessary to grant Neurosity such license, and (b) you are responsible for User Content that may be lost or unrecoverable through your use of the Crown Service. We recommend that you create and maintain regular backups of all User Content and associated data. We reserve the right to place service limits (including as to the volume of data and time) on the User Content and associated data stored or retained by or on behalf of Neurosity.
WARRANTIES; LIMITATION OF LIABILITY; INDEMNITY
Warranty and Disclaimer. YOUR USE OF THE Crown SERVICE IS AT YOUR SOLE RISK. THE Crown SERVICE AND THE ASSOCIATED SOFTWARE, MATERIALS, AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE, OUR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND OTHER REPRESENTATIVES (COLLECTIVELY, “NEUROSITY PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEUROSITY PARTIES MAKE NO WARRANTY THAT: (I) ANY Crown SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE Crown SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE Crown SERVICE WILL BE ACCURATE OR RELIABLE OR APPROPRIATE OR APPLICABLE TO YOUR USE; (IV) THE QUALITY OF ANY AND ALL PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL INCLUDING ANY SOFTWARE, MERCHANDISE, GOODS AND SERVICES, OBTAINED OR PURCHASED BY YOU DIRECTLY OR INDIRECTLY THROUGH ANY Crown SERVICE, WILL MEET YOUR EXPECTATIONS OR NEEDS; (V) ANY DATA STORED OR RETAINED BY NEUROSITY WILL BE FREE FROM LOSS OR CORRUPTION OR AVAILABLE INDEFINITELY; OR (VI) ANY ERRORS WILL BE CORRECTED. NEUROSITY DISCLAIMS ANY LIABILITY FOR ANY CONSEQUENCES DUE TO USE, MISUSE, OR INTERPRETATION OF INFORMATION CONTAINED, OR NOT CONTAINED, IN ANY Crown SERVICE. SENSOR DEVICES AND Crown SERVICES MAY NOT FUNCTION AS INTENDED OR EXPECTED. IF YOU CHOOSE TO USE THE Crown SERVICE AND SENSOR DEVICES, YOU ASSUME ALL RISK OF HARM OR LOSS ASSOCIATED WITH YOUR USE THEREOF.
Exclusion of Damages. NEUROSITY PARTIES WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO ANY DATA OR THE USE OF OR INABILITY TO USE ANY Crown SERVICE OR ANY CONTENT INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION OR ANY ‘BUG’ OF THE Crown SERVICE OR THE WEBSITES; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF TRANSMISSIONS OR DATA, OR FOR ANY LOSS OF DATA OR THE PROVISION OF INCORRECT DATA; (IV) FOR ANY LOSS OF INCOME, BUSINESS, PROFIT, ANTICIPATED REVENUE OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS (EVEN IF NEUROSITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND REGARDLESS OF WHETHER SUCH LOSS IS DIRECT OR INDIRECT); OR (V) FOR ANY OTHER MATTER RELATING TO ANY Crown SERVICE OR ANY THIRD PARTY (INCLUDING (a) END USERS OF THE SENSOR DEVICE; AND (b) OUR LICENSORS, SERVICE PROVIDERS AND PAYMENT PROCESSORS). THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES NEUROSITY PARTIES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THE INFORMATION AND SERVICES OFFERED ON AND THROUGH THE Crown SERVICE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. NOTHING HEREIN IS INTENDED TO CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY NEUROSITY TO ANY THIRD PARTY (INCLUDING END USERS), DIRECTLY OR AS A THIRD PARTY BENEFICIARY, WITH RESPECT TO ANY OF THE SERVICES PROVIDED HEREUNDER.
Limitation of Liability. NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF NEUROSITY PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE FEES PAID BY YOU DIRECTLY TO NEUROSITY FOR LICENSES GRANTED BY NEUROSITY HEREIN SOLELY AND DIRECTLY TO YOU PURSUANT TO THESE TERMS IN THE SIX MONTHS IMMEDIATELY PRIOR TO SUCH CAUSE OR CLAIM ARISING. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, TO THE EXTENT PROHIBITED BY APPLICABLE LAW, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. NEUROSITY PARTIES WILL NOT BE LIABLE FOR: (i) CLAIMS ASSOCIATED WITH MODIFICATIONS OR ADAPTATIONS PERFORMED BY ANYONE OTHER THAN NEUROSITY; OR (ii) USE OF THE Crown SERVICE WITH PRODUCTS OR SERVICES THAT ARE NOT PROPRIETARY TO NEUROSITY (EVEN IF SUCH PRODUCTS OR SERVICES DISPLAY NEUROSITY BRANDING ELEMENTS).
Indemnification. You (on behalf of the organization you represent (if applicable) and users of the Crown Service and the Sensor Devices) agree to indemnify, defend and hold harmless Neurosity Parties against all judgments, awards, settlements, liability, penalties, fines, claims, demands, causes of action, losses, expenses, damages, and costs (including any court costs and reasonable attorneys’ fees), resulting or arising from or relating to (a) your access to or use of any Crown Service, (b) any activity related to your account by you or any other person permitted by you, (c) your breach of the Terms, (d) your infringement or violation of any rights of another, or (e) your negligence or willful misconduct. We reserve the right to assume, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement, or compromise negotiations, as requested by us.
Third-Party Indemnification. You agree to indemnify, defend and hold harmless Neurosity Parties against all claims, demands, causes of action, losses, expenses, damages, and costs (including any reasonable attorneys’ fees), resulting or arising from any such claims made against the Neurosity Parties by third parties.
TERMINATION AND/OR CANCELLATION
Term. Subject to earlier termination and/or cancellation in accordance with these Terms, these Terms will continue for the initial term as specified in the applicable form of invoice or subscription order, if any, and if no term is specified, the Terms will have an initial term of 12 months commencing on the date you are first provided access to the Crown Service pursuant to the Terms (“Initial Term”) and, unless otherwise specified in the applicable invoice or subscription, these Terms will be automatically renewed for additional periods of the same duration as the Initial Term, on the same terms and conditions as the Terms, except for any changes to fees and any modifications Neurosity makes to these Terms, unless either Party terminates and/or cancels the Terms prior to the end of the then-current term. The Initial Term and any subsequent renewals will collectively be referred to as the “Term”. For clarity, if you are participating in a trial immediately preceding your paid subscription, the first day of your Initial Term will start on the earlier of a) the first day following the end of the Trial Period; and b) the first day of your paid subscription.
Termination and/or Cancellation. These Terms will terminate in each of the following events:
in accordance with the Payment Processor Terms;
if the other party materially defaults in the performance or observance of any of its obligations under these Terms and does not remedy the default within 15 days after receiving notice;
at the option of either party, if the other party becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or if a receiver or trustee in bankruptcy is appointed for the other party, or if any proceeding in bankruptcy, receivership, or liquidation is instituted against the other party and is not dismissed within 30 days following commencement thereof; or
at the option of either party, upon 30 days written notice, delivered to the other Party in accordance with Section 10.1 (Notices), provided that no amounts previously paid are refundable.
Effect of Expiration or Termination and/or Cancellation. Upon expiration or earlier termination and/or cancellation of the Terms, unless otherwise specified in the Terms, all rights granted to each Party herein shall forthwith revert to the granting Party, including the following consequences: (a) any compensation accrued but not paid will become immediately due and payable; and (b) your right to access and use the Crown Service will immediately terminate and/or cancel, you will immediately cease all use of the Crown Service, and you will destroy or return to us and make no further use of any confidential information or proprietary materials, or other items (and all copies thereof) belonging to us including any Software. All sections of the Terms which by their nature should survive termination and/or cancellation will survive termination and/or cancellation including accrued rights to payment, confidentiality obligations, governing law, disclaimers, and limitations of liability. Further, you will have no right to receive any refund of any prepaid amounts if you terminate and/or cancel during the applicable Term or if we terminate and/or cancel for cause. If the Sensor Device and the Crown Service were acquired as a “bundle”, upon termination or expiration of these Terms, notwithstanding Neurosity’s Limited Warranty for the Sensor Device, Neurosity may be relieved of its obligations to repair or replace the Sensor Device.
Payments Due before Termination and/or Cancellation. Payments due before the termination and/or cancellation of the Terms will still be payable by you at the time of such termination and/or cancellation. In addition, if you breach any of the Terms including failing to pay any sum that is due, in addition to any other remedies, you will reimburse us for all attorneys’ fees, court, collection, and other costs incurred by us in the enforcement of our rights under these Terms.
Notices. All notices, requests, demands, approvals, requests for approvals, or other communications under the Terms will be in writing. Notice will be sufficiently given for all purposes as follows: (i) upon delivery when personally delivered to the recipient, (ii) upon receipt when mailed by certified mail, return receipt requested if confirmed by return receipt, (iii) upon delivery when delivered by Federal Express or other recognized international overnight courier, (iv) upon receipt when sent by fax with confirmation, provided, however, that it will be deemed delivered the next business day if sent on a non-business day or after 5 pm New York, NY time on a business day; and (vi) by email to you if sent by us to any email address provided to us. Notwithstanding anything to the contrary, notice will be sufficiently given to you, if provided by us to you via any email address provided to us or through the Crown Service, or by posting communications on http://www.neurosity.co/. Addresses for the purpose of giving notice may be set forth on the applicable form of invoice or subscription. Copies of any notice given by you to us must also be delivered to Neurosity, Inc. Attention Legal Department, 240 Kent Ave, Brooklyn, NY, 11249. A party’s address for notice may be changed by that party providing notice to the other party in accordance with this Section 10.1 (Notices).
Merger/Modification. Each Party acknowledges that it has read the Terms, understands them, and agrees to be bound by them, and further agrees that this is the complete and exclusive statement of the Terms between the Parties, which supersedes and merges all prior proposals, understandings, and all other agreements, oral and written, between the Parties relating to the Terms. We are not, and will not be, bound by any provision of your purchase order, correspondence, or otherwise. Neurosity reserves the right to change, amend or modify the terms of these Terms, or the availability of any Crown Service from time to time. In such instance, you may be required to accept and agree to the new terms of these Terms. If you do not agree to any such new terms, you must cease or terminate your use of the Crown Service. Your continued use of the Crown Service after any modification to any of these Terms will be deemed to constitute your acceptance of any such new terms, conditions, or modifications.
Limitations on Use. Neurosity may impose certain limitations on the use of the Crown Service including allocating certain levels of storage capacity to your account, restricting the number of accounts you may register, restricting the number of clients connected to your account, and/or restricting the amount of data available to you from each client or user. You agree to use the Crown Service only for purposes as permitted by the Terms and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. Neurosity reserves the right to modify or impose any limitations on the use of the Crown Service at any time, with or without notice to you.
Governing Law. These Terms shall be governed by and construed in accordance with the laws as specified below (“Governing Law”), excluding conflicts of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods. Each Party irrevocably consents and submits to the exclusive jurisdiction of the courts as specified below and waives any objection thereto on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. The parties waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. No action arising out of the Terms or your use of the Crown Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).
Where your primary address is located in:
Canada, Caribbean, South America, or any other region or country not listed in subsections (ii) – (iii) inclusive below: the Governing Law of this Agreement is the laws of the Province of Ontario, Canada, and the courts of the city of Toronto, Ontario, Canada shall have exclusive jurisdiction;
United States of America: the Governing Law of this Agreement is the laws of the State of New York and the courts of the county of New York, New York, U.S.A. shall have exclusive jurisdiction; and
Europe (including Greenland), the Russian Federation, Middle East, or Africa: the Governing Law of this Agreement is English law and the courts of the city of London, England shall have exclusive jurisdiction.
If there is any uncertainty or disagreement about the location of the End User’s primary address, then the Parties agree that sub-section (i) shall apply.
Severability. If any provision of the Terms is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted and all other terms and provisions of the Terms will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify the Terms so as to effectuate the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
Feedback. You may (but are not required to) provide feedback, comments, and suggestions, including in respect of or concerning any improvements, errors, modifications, corrections, enhancements, or derivatives (collectively, “Feedback”) to Neurosity concerning the Crown Service, Sensor Devices or any other intellectual property of Neurosity. You hereby grant to Neurosity a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose. Neurosity may develop technology, modifications, corrections, enhancements, derivatives, or extensions (collectively, “Improvements”), and further may also develop branding elements based on such Feedback, and such Improvements and branding elements, and any intellectual property rights therein, as well as any related intellectual property registrations, will be owned exclusively by Neurosity. You agree to execute such further documents and instruments as may be required to confirm such ownership by Neurosity. You represent that the Feedback: (i) will not infringe any third party’s copyright, patent, trademark, trade secret, or other proprietary rights, or rights of privacy; (ii) will not violate any law, statute, ordinance, or regulation; (iii) will not be obscene or contain child pornography; and (iv) will not be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate.
Force Majeure. The Crown Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Neurosity is not responsible for any delays, deliver failures, or other damage resulting from such problems. In addition, neither you nor Neurosity will be liable for any failure or delay in performance of these Terms which are caused by something that is in the control of third parties or circumstances beyond the reasonable control of a party (collectively, “Force Majeure”). Force Majeure events shall include (but not be limited to) acts of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment, software or services (including the internet and telecommunication services); or material or something else required for the performance of obligations under this Agreement. Notwithstanding the forgoing, under no circumstances will a party’s obligation to pay any amount under these Terms be obviated by an event of Force Majeure.
Miscellaneous. We may assign the Terms in whole or in part. You may not assign the Terms in whole or in part. A waiver by either Party of any terms or conditions of the Terms in any instance will not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach thereof. All remedies, rights, undertakings, obligations and agreements contained in the Terms will be cumulative, and none of them will be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party. The Parties are not employees, agents, partners or joint venturers of each other. Neither Party will have the right to enter into any agreement on behalf of the other. The headings and titles of the Terms are not part of the Terms, but are for convenience only and are not intended to define, limit or construe the contents of the various sections. Notwithstanding any termination, cancellation or expiration of the Terms, the provisions hereof that are intended to continue and survive, will continue and survive, including Sections 5 (Compensation), 6 (Intellectual Property Rights), 7 (Confidentiality), 8 (Warranties; Limitation of Liability; Indemnity), 9 (Termination and/or Cancellation) and 10 (Miscellaneous). Except as otherwise specified in the Terms, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with the Terms and the transactions contemplated in the Terms will be paid by the Party incurring such costs and expenses. The entire understanding between the Parties hereto relating to the subject matter hereof is contained herein and the Parties make no warranties, representations or undertakings hereto except as expressly provided herein. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. 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.