End User License Agreement
1. Some Definitions for this Agreement
1.1 "Additional Terms" means the features, registration process, License Fee, license tiers, license seats, and other terms and conditions applicable to each Software license, as set forth on the EMOTIV website and/or mobile device application.
1.2 "EMOTIV" means EMOTIV, Inc., a Delaware corporation, with its principal place of business at 490 Post Street, San Francisco, CA 94102, USA.
1.3 "End User Data" means the EEG data You generate by using the Software with the linked EMOTIV headset in accordance with the terms of this EULA.
1.4 "EULA" means this EMOTIV End User License Agreement.
1.5 "License Fee" means the subscription fee that You are required to pay to EMOTIV to gain access to the Software. The amount of the License Fee will depend on the type of licensing arrangement with EMOTIV that You select.
1.6 "Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.7 "Software" means the EMOTIV software that is licensed by You and made available by EMOTIV through a mobile device application, online through the EMOTIV website and/or for download to Your desktop computer.
1.8 "Taxes" means any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever, but excluding taxes assessable against EMOTIV based on its income, property and employees.
1.9 "Third Party License Agreement" means the agreement between EMOTIV and a Third Party Software Provider which licenses the Software to the Third Party Software Provider for the purpose of developing, using, commercializing and distributing Third Party Software.
1.11 "Third Party Software Provider" means the owner, licensor or provider of Third Party Software who has an active Third Party License Agreement.
1.12 "You" or "Your" means the individual accepting this EULA or the company or other legal entity for which such individual is accepting this EULA in accordance with the requirements of Section 3.4, below.
2. Software License Options
2.1 EMOTIV offers multiple Software license options. Please refer to the EMOTIV website and/or mobile device application for information concerning the Additional Terms applicable to each Software license.
2.2 In the event of a conflict between the terms of this EULA and the Additional Terms applicable to the specific Software You are licensing, the Additional Terms will control over the conflicting terms of this EULA.
3. Accepting this EULA
3.1 In order to gain access to the Software, You must first accept this EULA and pay the License Fee applicable to Your Software license. You do not have toaccept this EULA in order to use an EMOTIV headset, but Youmay not access the Software until You have accepted this EULA and paid the applicable License Fee for Your Software license.
3.2 By clicking to accept, You agree to the terms of this EULA, which creates a legally binding contract between You and EMOTIV.
3.3 You may not accept the EULA and You may not access or use the Software if You are a person barred from receiving the Software under the laws of the United States or other applicable countries, including the country in which You are resident or in which You access or use the Software.
3.4 If You are agreeing to be bound by this EULA on behalf of a company or other legal entity, for example Your employer, You represent and warrant that You have full legal authority to bind that company or other legal entity to this EULA. If You do not have that authority, You may not accept this EULAor access or use the Software on behalf of that company or other legal entity.
3.5 The Software is not intended for children under the age of 16. By accepting this EULA, You represent and warrant to EMOTIV that You are at least 16 years of age.
4. Your Software License from EMOTIV
4.1 Subject to the terms and conditions of this EULA and the Additional Terms, EMOTIV grants You a limited, worldwide, nonexclusive, non-transferrable or assignablelicense to access the Software solely to generate and view End User Data. You may not use the Software for any other purpose.
4.2 Your Software license must be linked to an EMOTIV headset in order to function properly.
4.3 The terms of this EULA include any Additional Terms applicable to Your Software license set forth on the EMOTIV website and/or mobile device application.
4.4 EMOTIV or third parties own all legal right, title, and interest in and to the Software, including any rights under patent law, copyright law, trade secret law, trademark law, and any other proprietary rights that subsist in the Software. EMOTIV and such third parties reserve all rights not expressly granted to You under this EULA.
4.5 Except as otherwise expressly permitted by the Additional Terms, You will not have the right to: (a) make the Software available to, or use the Software for the benefit of, anyone other than You; (b) sell, resell, license, sublicense, distribute, rent or lease the Software; (c) use the Software for commercial purposes; (d) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or publicity rights; (e) use the Software to store or transmit Malicious Code; (f) interfere with or disrupt the integrity or performance of the Software or third-party data contained therein; (g) attempt to gain unauthorized access to Software or its related systems or networks; (h) permit direct or indirect access to or use of Software in a way that circumvents a contractual restriction; (i) copy the Software or any part, feature, function or user interface thereof; (j) frame or mirror any part of Software, other than framing on Your own intranets or otherwise for Your own internal purposes; (k) access the Software in order to build a competitive product or service or to monitor the Software's availability, performance or functionality, or for any other benchmarking or competitive purposes; or (l) reverse engineer the Software.
4.6 The use, reproduction, and distribution of any components of the Software which are covered by an open source software license between EMOTIV and the open source software licensor are governed by the terms of that open source software license in addition to the terms of this EULA. In the event of a conflict between the terms of this EULA and the terms of such open source software license, the terms of the open source software license will control over the conflicting terms of this EULA.
4.7 Nothing in this EULA gives You the right to use any of EMOTIV's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
4.8 You may not remove, obscure, or alter any proprietary rights notices, including copyright and trademark notices, which may be contained within the Software.
4.9 THE SOFTWARE IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SOFTWARE. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS, AND END USE.
5. EMOTIV's Responsibilities
5.1 EMOTIV obtains no ownership interest from You under this EULA in or to End User Data.
5.3 EMOTIV will use commercially reasonable efforts to make the Software available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; and (b) any unavailability caused by circumstances beyond EMOTIV's reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.
6. Your Responsibilities
6.1 You will: (a) be responsible for complying with this EULA; (b) be responsible for the accuracy, quality and legality of personal information, including End User Data; (c) be responsible for Your disclosure of personal information, including End User Data, to third parties; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Software and personal information, including End User Data, and notify EMOTIV promptly of any such unauthorized access or use; and (e) not share Your login credentials with any third party.
6.2 If You access any Third Party Software, You hereby authorize EMOTIV to share all or certain portions of personal information, including End User Data, with the applicable Third Party Software Provider based on the terms and conditions (including the license tier and number of license seats) of the applicable Third Party License Agreement. In the event the Third Party Software Provider fails to comply with any terms and conditions of the Third Party License Agreement, EMOTIV has the right to cease sharing personal information with that Third Party Software Provider, which may prevent the Third Party Software from functioning properly.
6.3 Your access to Third Party Software may be subject to additional terms and conditions required by the applicable Third Party Software Provider. EMOTIV recommends that You review and ensure You agree with any such terms and conditions before accessing the Third Party Software.
7. Software Support, Modifications, and Discontinuance
7.1 EMOTIV, in its sole discretion, may elect to provide You with support or modifications for the Software, and may terminate support at any time without notice or liability to You.
7.2 Without prior notice or liability to You, EMOTIV may change, suspend, or discontinue the Software or any aspect of the Software at any time at EMOTIV's sole discretion, and future versions of the Software may be incompatible with existing EMOTIV headsets or End User Data that has been previously generated. EMOTIV may also impose limits on certain features and services or restrict Your access to parts or all of the Software without notice or liability.
7.3 You agree that Your payment of the License Fee is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by EMOTIV regarding future functionality or features.
7.4 Notwithstanding anything to the contrary contained in this EULA, if the Software is provided to You free of charge (zero License Fee), EMOTIV may terminate Your access to the Software at any time for convenience, without prior notice or liability to You.
8. Other Information that May Be Collected by EMOTIV
8.3 You grant to EMOTIV a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Software any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the Software.
9. License Fee and Payment for Software
9.1 Most Software is licensed to You as a subscription. The License Fee is based on access to the Software and not actual usage, and payment obligations are non-cancelable and License Fees paid are non-refundable. In the event You make any in-app purchases or purchase any optional services or features, You may incur fees which are separate from, and in addition to, the License Fee.
9.2 You will provide EMOTIV with valid and updated credit card information and authorize EMOTIV to charge such credit card for Software for the initial subscription term and any renewal subscription term(s) as set forth in Section 10.2, below. Such charges shall be made in advance in accordance with the type of licensing arrangement with EMOTIV that You select. You are responsible for providing complete and accurate billing and contact information to EMOTIV and notifying EMOTIV of any changes to such information.
9.3 If any License Fee is not received by the due date, then without limiting EMOTIV's rights or remedies, that License Fee will accrue a carrying charge at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
9.4 If any amount owed to EMOTIV is not received by the due date, EMOTIV may, without limiting its other rights and remedies, accelerate Your unpaid License Fee obligations for the entire remaining term of Your subscription so that all such obligations become immediately due and payable, and/or suspend Your access to the Software until such amounts are paid in full.
9.5 The License Fee does not include any Taxes. You are responsible for paying all Taxes associated with Your license of the Software. If EMOTIV has the legal obligation to pay or collect Taxes for which You are responsible under this Section 9.5, You authorize EMOTIV to charge Your credit card for that amount.
10. Term and Termination
10.1 This EULA commences on the date You first accept it and continues until Your subscription has expired or has been terminated.
10.2 The term of each subscription shall depend on the type of licensing arrangement with EMOTIV that You select. Except as otherwise specified in the Additional Terms, Your subscription will automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless and until EMOTIV has given You written notice of a pricing increase.
10.3 Either party may terminate this EULA for cause: (a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 All prepaid License Fees are nonrefundable. If this EULA is terminated by EMOTIV in accordance with Section 10.3 above, You will pay any unpaid License Fee covering the remainder of the subscription term. In no event will termination of this EULA relieve You of Your obligation to pay any License Fees payable to EMOTIV for the period prior to the effective date of termination.
10.5 EMOTIV has no obligation to maintain or provide End User Data after the effective date of termination or expiration of this EULA, and may delete or destroy all copies of End User Data in its possession or control, unless legally prohibited.
10.6 Upon termination or expiration of this EULA, all rights and licenses granted to You by EMOTIV under this EULA will cease, including Your right to access or use the Software. Following termination or expiration of this EULA, Sections 1, 2.2, 5.1, 6, 9.1, 9.4, 10.4, 10.5, 10.6, 11.1â€“11.4, 12.1 and 13.1-13.8 will continue to bind You and EMOTIV.
11. EMOTIV's Disclaimer and Limitation of Liability
11.1 YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. EMOTIV PROVIDES THE SOFTWARE "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND. EMOTIV IS NOT RESPONSIBLE FOR ANY ASPECT OF THIRD PARTY SOFTWARE AND DOES NOT ENDORSE, RECOMMEND OR ENCOURAGE THE USE OF ANY THIRD PARTY SOFTWARE.
11.2 YOUR USE OF THE SOFTWARE AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THAT USE, INCLUDING BUT NOT LIMITED TO DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA.
11.3 EMOTIV DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
11.4 TO THE EXTENT PERMITTED BY LAW, EMOTIV WILL NOT, UNDER ANY CIRCUMSTANCES AND NO MATTER WHAT THE LEGAL THEORY (TORT, WARRANTY, CONTRACT, OR OTHER), BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE OR ANY THIRD PARTY SOFTWARE, INCLUDING ANY LOSS OF DATA, AND WHETHER OR NOT EMOTIV HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. UNDER NO CIRCUMSTANCES WILL EMOTIV BE LIABLE TO YOU FOR ANY SUCH AMOUNT.
12. Your Obligation to Indemnify EMOTIV
12.1 To the maximum extent permitted by law, You agree to defend, indemnify, and hold harmless EMOTIV, its affiliates, and their respective directors, officers, employees, and agents from and against any and all claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including attorneys' fees) arising out of or accruing from: (a) Your use of the Software; or (b) Your failure to comply with this EULA.
13. General Terms
13.1 For purposes of this EULA and Your use of the Software, You and EMOTIV are acting independently and not as the partner, joint venturer, agent, employee, or employer of the other. You do not have any authority to assume or create any obligation for or on behalf of EMOTIV, express or implied, and You will not attempt to bind EMOTIV to any contract or other obligation.
13.2 EMOTIV may amend this EULA from time to time on a prospective basis, and Your use of the Software after an amendment constitutes Your consent to be bound by the amendment going forward.
13.3 This EULA and Your relationship with EMOTIV under this EULA will be governed by and construed in accordance with the laws of the State of California, excluding any rules that would apply the law of another jurisdiction. You and EMOTIV agree to submit to the exclusive jurisdiction and venue of the courts located within the City and County of San Francisco, California, to resolve any legal matter arising from this EULA.
13.4 EMOTIV's failure to exercise or enforce a legal right or remedy contained in this EULA or available at law or in equity will not constitute a waiver of that right or remedy.
13.5 If a court of competent jurisdiction holds any provision of this EULA to be unenforceable, the rest of the EULA will be severable and remain in effect.
13.6 You may not assign any rights or obligations under this EULA without EMOTIV's advance written consent, which EMOTIV may withhold in its sole discretion. EMOTIV may assign its rights or obligations under this EULA in its sole discretion.
13.8 Titles or headings to the sections of this EULA are not part of the terms of this EULA, but are inserted solely for convenience. If an ambiguity or question of intent or interpretation arises, this EULA will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this EULA.
Last Updated May 25, 2018