diff --git a/EULA b/EULA index c045ffc..fc9f451 100644 --- a/EULA +++ b/EULA @@ -1,101 +1,5 @@ -END USER LICENSE AGREEMENT ("EULA") - - -READ THIS AGREEMENT CAREFULLY. -BY CLICKING ON THE "I AGREE" BUTTON OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. -IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, CLICK "I DON'T AGREE". YOU WILL NOT BE GIVEN ACCESS TO THE SOFTWARE UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU HAVE PAID A LICENSE FEE FOR USE OF THE SOFTWARE AND DO NOT AGREE TO THESE TERMS, YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND PROVIDED YOU (A) DO NOT USE THE SOFTWARE AND (B) RETURN THE SOFTWARE WITHIN THIRTY (30) DAYS OF YOUR INITIAL PURCHASE. -IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL. -IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN LICENSE AGREEMENT WITH EMOTIV FOR USE OF THE SOFTWARE, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT. -This End User License Agreement ("Agreement") is between Emotiv Inc., located at 490 Post St, Suite 824 -San Francisco, CA 94102 USA. ("Emotiv") and the customer (individual or entity) that has procured the licensed Software (as defined below) for use as an end user ("you"). This Agreement covers any Software and supporting technical documentation provided with the Software ("Documentation"). - -1. Definitions. -Effective Date: means the date on which the Software is first made available to you. -Software: means the Emotiv software product(s) provided in connection with this Agreement in object code form. "Software" shall also include any releases provided to or purchased by you under any separate support and maintenance agreement you may enter into with Emotiv. Unless otherwise noted, the Software and Documentation are referred to collectively herein as "Software". - -2. License. - -2.1 Grant of License. Subject to all of the terms and conditions of this Agreement, Emotiv grants you a non-transferable, non-sublicensable, non-exclusive license to use the Software, but only in accordance with -(i) the Documentation, -(ii) this Agreement and -(iii) any license term or other user, computer, field of use or other restrictions specified upon purchase. - -2.2 Installation and Copies. If you are an individual, you may copy and install the Software on a single computer. If you are a corporation, partnership, or other entity, you may copy and install on your computers for use only by your employees the number of copies of the Software for which you have paid the applicable license fee. Unless you have executed a separate written agreement with Emotiv, you may only use one copy of the Software per Emotiv headset purchased by you. You may also make a reasonable number of copies of the Software for back-up and archival purposes. - -2.3. License Restrictions. You shall not (and shall not allow any third party to): -(a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); -(b) use the Software in connection with any non-Emotiv hardware; -(c) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or like purposes; -(d) remove any product identification, proprietary, copyright or other notices contained in the Software; -(e) modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by Emotiv; or -(f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software. - -3. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Emotiv and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof. You acknowledge that you are obtaining only a limited license right to the Software and that irrespective of any use of the words "purchase", "sale" or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise. - -4. Payment. You shall pay all necessary fees for the Emotiv products bundled with the Software. You shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Emotiv). - -5. Term of Agreement. - -5.1 Term. This Agreement is effective as of the Effective Date and expires at such time as all licenses hereunder have expired in accordance with their own terms (the "Term"). Either party may terminate this Agreement if the other party: -(a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; -(b) ceases operation without a successor; or -(c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. - -5.2 Termination. Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof and so certify to Emotiv in writing. - -5.3 Survival. Sections 2.3 (License Restrictions), 3 (Ownership), 4 (Payment), 5 (Term of Agreement), 6.3 (Disclaimer of Warranties), 7 (Limitation of Remedies and Damages), 8 (Confidential Information), 9 (Export Compliance) and 10 (General) shall survive any termination or expiration of this Agreement. - -6. Limited Warranty and Disclaimer. - -6.1 Limited Warranty. Emotiv warrants to you that for a period of ninety (90) days from the Effective Date (the "Warranty Period") the Software shall operate in substantial conformity with the Documentation. Emotiv does not warrant that your use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. Emotiv's sole liability (and your exclusive remedy) for any breach of this warranty shall be, in Emotiv's sole discretion, to use commercially reasonable efforts to provide you with an error-correction or work-around which corrects the reported non-conformity, or if Emotiv determines such remedies to be impracticable within a reasonable period of time, to refund the license fee paid for the Software. Emotiv shall have no obligation with respect to a warranty claim unless notified of such claim within the Warranty Period. To the extent that Emotiv provides any warranty for hardware accompanying the Software, such hardware warranty shall not affect the warranty in this Section 6.1. - -6.2 Exclusions. The above warranty shall not apply: -(i) if the Software is used with hardware or software not specified in the Documentation; -(ii) if any modifications are made to the Software by you or any third party; -(iii) to defects in the Software due to accident, abuse or improper use by you; or -(iv) to Software provided on a no charge or evaluation basis. - -6.3 Disclaimer of Warranties. THIS SECTION 6 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, THE SOFTWARE AND ALL SERVICES ARE PROVIDED "AS IS". NEITHER EMOTIV NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. - -7. Limitation of Remedies and Damages. - -7.1 NEITHER YOU NOR EMOTIV (INCLUDING EMOTIV'S SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THIS SECTION 7.1 SHALL NOT APPLY TO YOU WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED "GRANT OF LICENSE," "LICENSE RESTRICTIONS" OR "CONFIDENTIAL INFORMATION". - -7.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EMOTIV AND ITS SUPPLIERS' ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO EMOTIV UNDER THIS AGREEMENT. - -7.3 The parties agree that the limitations specified in this Section 7 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. - -8. Confidential Information. Any software, documentation or technical information provided by Emotiv (or its agents) shall be deemed "Emotiv Confidential Information" without any marking or further designation. Except as expressly authorized herein, you will hold in confidence and not use or disclose any Emotiv Confidential Information. You acknowledge that disclosure of Emotiv Confidential Information would cause substantial harm to Emotiv that could not be remedied by the payment of damages alone and therefore that upon any such disclosure by you, Emotiv shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law. - -9. Export Compliance. You acknowledge that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not, and shall not allow any third-party to, remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: -(i) into (or to a national or resident of) any embargoed or terrorist-supporting country; -(ii) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; -(iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or -(iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government. - -10. General. - -10.1 Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Emotiv may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Emotiv's assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without Emotiv's written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void. - -10.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. - -10.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of The State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the California state and United States federal courts located in San Francisco, California, and both parties hereby submit to the personal jurisdiction of such courts. - -10.4 Attorneys' Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs in connection with such action. - -10.5 Notices and Reports. Any notice or report hereunder shall be in writing. If to Emotiv, such notice or report shall be sent to Emotiv at the address above to the attention of "Legal Department". If to you, such notice or report shall be sent to the address you provided upon placing your order. Notices and reports shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service. - -10.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. - -10.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or in any other business form employed by you will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect. Notwithstanding the foregoing, if you have entered into a separate written license agreement signed by Emotiv for use of the Software, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement. - -10.8 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent. - -10.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost. - -10.10 Government End-Users. The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited. - -10.11 Third-Party Code. If designated in the Documentation, the Software may contain or be provided with certain third-party code (including code which may be made available to you in source code form). Ownership, use, warranty and modification rights with respect to any such designated code shall be as expressly set forth in the Documentation. - - +EMOTIV +END USER LICENSE AGREEMENT ("EULA") Thank you for purchasing an EMOTIV headset. The headset is bundled with a Software Development Kit License Agreement and this End User License Agreement. 1. Some Definitions for this Agreement 1.1 “EMOTIV” means EMOTIV, Inc., a Delaware corporation, with its principal place of business at 490 Post Street, San Francisco, CA 94102, USA. 1.2 “EULA” means this EMOTIV End User License Agreement. 1.3 “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. 1.4 “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses. 1.5 “Software” means the EMOTIV software that is licensed by You and made available by EMOTIV through a mobile device application and/or online through the EMOTIV website. 1.6 “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. 1.7 “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. 1.8 “Your Data” means the EEG data and EEG derivative data You generate by using the Software in connection with Your EMOTIV headset in accordance with the terms of this EULA and any demographic and contextual data You provide to EMOTIV. 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 features, registration process, License Fee, license tiers, and other terms and conditions applicable to each Software license. 2.2 In the event of a conflict between the terms of this EULA and the other terms and conditions appearing on the EMOTIV website and/or mobile device application applicable to the specific Software You are licensing, the other terms and conditions 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 to accept this EULA in order to use Your EMOTIV headset, but You may not access the Software until You have accepted this EULA and paid the applicable License Fee for Your Software license. For some Software, EMOTIV may offer access to the basic Software features free of charge (zero License Fee) and may provide You with the option to obtain access to certain other features within the Software for an additional fee. 3.2 By clicking to accept, You agree to the terms of this EULA, which creates a legally binding contract between You and EMOTIV in relation to Your access to and use of the Software. 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 EULA or access or use the Software on behalf of that company or other legal entity. 4. Your Software License from EMOTIV 4.1 Subject to the terms and conditions of this EULA, EMOTIV grants You a limited, worldwide, nonexclusive, non-transferrable or assignable license to access the Software solely to generate and view Your Data. You may not use the Software for any other purpose. 4.2 Your Software license may be linked to the EMOTIV hardware device You have purchased. 4.3 The terms of this EULA include any registration requirements and restrictions 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 You will not: (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 under an open source software license are governed solely by the terms of that open source software license and not 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 right, title, or interest from You under this EULA in or to Your Data. 5.2 EMOTIV will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. These safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data except: (a) to provide access to the Software and prevent or address service or technical problems; (b) as compelled by law; or (c) as otherwise permitted by this EULA or expressly permitted by You in writing. 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 Your Data; (c) be responsible for Your disclosure of Your Data to third parties; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Software and Your Data, and notify EMOMIV promptly of any such unauthorized access or use; and (e) not share Your login credentials with any third party. 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 Your existing EMOTIV headset or Your 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. Information that May Be Collected by EMOTIV 8.1 In order to innovate and improve the Software, EMOTIV may collect certain usage statistics from the Software, including but not limited to a unique identifier, associated IP address, version number of the Software, and information on how the Software is being used. Before any of this information is collected, the Software will notify You and request Your consent. If You withhold consent, the information will not be collected. + 8.2 EMOTIV may examine the information collected in the aggregate to improve the Software and will maintain the information in accordance with EMOTIV’s Privacy Policy. 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. 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 on the EMOTIV website and/or mobile device application, 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 EMOTIV has given You written notice of a pricing increase at least sixty (60) days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter. 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 If this EULA is terminated by You in accordance with Section 10.3 above, EMOTIV will refund You any prepaid License Fee covering the remainder of the subscription term after the effective date of termination. 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 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 Your Data after the effective date of termination or expiration of this EULA, and may delete or destroy all copies of Your 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, 9.1, 9.4, 10.4, 10.5, 10.6, 11.1–11.4, 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. 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, INCLUDING ANY LOSS OF YOUR 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 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 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. 13.7 This EULA, along with the other terms and conditions appearing on the EMOTIV website and mobile device application applicable to the specific Software You are licensing, constitute the entire agreement between You and EMOTIV regarding Your use of the Software. 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. 15 February 2016 \ No newline at end of file diff --git a/README.md b/README.md index 0572988..3b72cac 100644 --- a/README.md +++ b/README.md @@ -23,7 +23,7 @@ To get the SDK you can either: ## Latest Release #### Version 3.3.1 -* *Available for Windows and Mac; other platforms to follow* +* *Available for Windows, Mac and iOS; other platforms to follow* * New features and improvement: * Improved BTLE connection on all platforms * Improved noise tolerance for Mental Commands with Insight