This End User License Agreement (this “Agreement”), is by and between OpenBCI, Inc. (“OpenBCI” or “Us” or “We” or “Our”) and the individual or entity, including its employees and contractors, (“You” or “Your”) accessing or using the suite of software products used for monitoring, reporting and collecting data related to OpenBCI’s Galea product (“Galea”).
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ANY RIGHT CONCERNING ANY SOFTWARE THAT YOU DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF OUR SOFTWARE.
License Grant and Scope. Subject to and conditioned upon Your strict compliance with all terms and conditions set forth in this Agreement, We hereby grant You a non-exclusive, non-transferable, non-sublicensable, limited license to, during the Term to download, install and use the Software and any user manuals, technical manuals and any other materials provided by Us at docs.galea.co that describe the operation, use or technical specifications of the Software (“Documentation”), solely in connection with Your internal business and internal research purposes to monitor and review reporting and records generated by Your use of Galea. Full use of the Software is may be dependent upon Your use of adequate and compatible internet access, software and hardware. You are responsible for securing such access, software and equipment, and Your failure to do so could affect Your access to, and the functioning of, the Software. To download, access and use the Software, You must create an “Account,” which will include information that will be unique to You. You agree to keep Your Account current and to update Your Account information as necessary or required by Us.
Use Restrictions. You shall not, and shall not allow, encourage, enable or solicit any individual (that is not Your employee or contractor), corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity other than You or Us (each, a “Third Party”) to, directly or indirectly: (a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 1; (b) use any information or data obtained through the Software for unlawful or infringing purposes; (c) provide any Third Party with access to or use of the Software, Documentation, or Your Account; (d) copy, modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof; (e) combine the Software or Documentation or any part thereof with, or incorporate the Software or Documentation or any part thereof in, any other programs or services; (f) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (g) remove, delete, alter or obscure any trademark, copyright, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof; (h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or Documentation, or any features or functionality of the Software, to any Third Party for any reason; (i) use the Software or Documentation in violation of any law, regulation or rule; (j) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection or security features in the Software or Documentation; or (k) use the Software or Documentation for purposes of competitive analysis of a competing product or service or any other purpose that is to Our commercial disadvantage.
Responsibility for Use of Software. You shall safeguard the confidentiality of Your Account information and are responsible and liable for all activity and uses of the Software and Documentation through Your Account and/or in conjunction with Your Galea and We are not responsible for any damage or injury caused by Your failure to monitor which employees, contractors or other individuals you permit to access and use the Software, or their acts or omissions in using the Software, or Your failure to keep Your Account information confidential. You are responsible for preserving the confidentiality of Your Account information. Any act or omission of Your employees, contractors or other individuals (collectively “Authorized Users”) You permit to access the Software that would constitute a breach of this Agreement if taken by You will be deemed a breach of this Agreement by You. You shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized Users’ use of the Software, and cause Authorized Users to comply with such provisions. Without limiting any other provision of this Agreement, You agree not to use the Software or Documentation to upload, post, email or otherwise transmit any materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable or in violation of any applicable laws or regulations. Your right to use and/or access the Software and Documentation is conditioned upon Your compliance with the standards and conduct guidelines set forth above. If You fail to adhere to these standards and guidelines, or any part of this Agreement, We may terminate, in our sole discretion and without notice to You, Your use of, or access to, the Software or Documentation.
Monitoring, Audit and Expectations of Privacy. The Software is subject to monitoring by Us to ensure proper functioning, to prevent unauthorized use and violations of laws and regulations, to deter criminal activity, and for Our other business purposes. That said, such monitoring shall not operate to interfere with or undermine the principals of Section 5 below regarding Collection and Use of Your Information.
OpenBCI Collection and Use of Information.
(a) Galea Sensor Data. No physiological data collected by Galea will be collected, monitored, or shared with Us, unless You explicitly consent to share that data with Us. If you do consent to sharing this data with Us you will do so subject to a separate agreement governing Our ability to use such data. Absent such an agreement, we will not use any physiological sensor data collected by Galea.
(b) Use and Diagnostic Data. You acknowledge that when You use the Software, We may use automatic means (including, for example, cookies and web beacons) to collect information about You and about Your use of the Software. By downloading, installing, using and providing information to or through the Software, You consent to all actions taken by Us with respect to Your information in compliance with Our applicable policies and applicable law.
(c) Feedback. If you provide feedback, suggestions, or other content (“Submissions”) via the Software, You represent and warrant that You own or have the right to all such Submissions. You hereby grant Us a non-exclusive, transferable, sublicensable, worldwide, irrevocable, royalty-free license to use, copy, modify, translate, create derivative works from, and distribute such Submissions. You further represent and warrant that your Submissions will at all times be in compliance with Section 3 of this Agreement.
Updates. We may from time to time in Our sole discretion develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Software. You agree that We have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Software. You may be required to download and install Updates as a condition to Your continued use of and access to the Software.
Intellectual Property Rights. As used herein, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. You acknowledge and agree that the Software and Documentation are provided under license, and not sold, to You. You do not acquire any ownership interest in the Software or Documentation, or any other rights thereto other than to use the Software and Documentation in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. As between You and Us, We reserve and shall retain Our entire right, title and interest in and to the Software and Documentation and all Intellectual Property Rights arising out of or relating to the Software and Documentation, except as expressly granted to You in this Agreement. You shall promptly notify Us if You become aware of any infringement of Our Intellectual Property Rights in the Software or Documentation, and You agree to fully cooperate with Us, at Our sole expense, in any legal action taken by Us against a third party to enforce Our Intellectual Property Rights.
Confidentiality. You acknowledge and agree that the structure, organization and source code for the Software are proprietary confidential information of Ours and Our licensors. You agree not to provide or disclose any confidential information of Ours (including relating to or derived from the Software or Documentation) to any Third Party.
Fees. You shall pay the fees set forth in the applicable purchase order form (“Purchase Order”) for the Software and in accordance with the terms of such Purchase Order.
Term and Termination. This Agreement shall be effective upon Your clicking “I Agree” as described above and shall remain in effect for the duration indicated on the Purchase Order or until terminated as provided herein (the “Term”). We may terminate this Agreement immediately and without notice if We cease to support the Software, which We may choose to do in Our sole discretion. This Agreement may terminate immediately and automatically without notice if You violate any term or condition of this Agreement. Upon termination of this Agreement for any reason, the licenses granted hereunder shall immediately terminate, and You shall cease using the Software and remove all copies of the Software from whatever hardware you have used to access the Software. Upon termination of this Agreement for any reason, You shall not be entitled to any refund of fees (including any partial refund), except as may be required by applicable law. Termination will not limit any of Our rights or remedies at law or in equity. Sections 5, 7, 8, and 10-18 shall survive termination.
Third Party Materials. The Software may display, include or make available third-party content (including content generated by other users, data, information, applications and other products, services and/or materials) (“Third Party Materials”). You acknowledge and agree that We are not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. We do not assume and will not have any liability or responsibility to You or any Third Party for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to You and You access and use them entirely at Your own risk and subject to such Third Parties’ terms and conditions, if any.
Disclaimer of Warranties. THE SOFTWARE IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, ACCURACY, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION OF THE FOREGOING, WE PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARES, SOFTWARE, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR FREE, ARE SECURE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. WE ARE NOT RESPONSIBLE FOR ANY THIRD PARTY CHANGES THAT MAY IMPACT THE FUNCTIONALITY AND/OR OPERATION OF THE SOFTWARE ON CERTAIN OPERATING SYSTEMS.
Limitation of Liability. PLEASE CAREFULLY READ THIS SECTION, WHICH LIMITS THE REMEDIES YOU MAY SEEK FROM US. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL WE OR ANY OF OUR LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, DEVICE OR SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT YOUR USE OF THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK.
(b) IN NO EVENT WILL OUR AND OUR LICENSORS’ AND SERVICE PROVIDERS’ COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO US PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE CLAIM.
(c) YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 13 FORM A FUNDAMENTAL PART OF THIS AGREEMENT AND THESE LIMITATIONS SHALL APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Indemnification. You agree to indemnify, defend and hold harmless Us, Our affiliates, and Our and their officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to Your use or misuse of the Software, Your breach of this Agreement, or Your Submissions. Furthermore, You agree that We assume no responsibility for the Submissions or any other content You submit, upload and/or post, use or make available through the Software. We reserve the right to assume control of the defense of any third party claim that is subject to Your indemnification, in which case You will cooperate with Us in asserting any available defenses.
Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside the US.
US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if You are the US Government or any contractor therefor, You shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Governing Law and Dispute Resolution. This Agreement is governed by the laws of the State of New York, United States (without regard to the conflict of laws provisions of such state). Any dispute arising out of these Terms shall be adjudicated solely and exclusively in the jurisdiction of the state or federal courts in New York, New York, United States. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the courts of the State of New York.
Miscellaneous. (a) This Agreement constitutes the sole and entire agreement between You and Us with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. (b) You shall not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your obligations or performance, under this Agreement, without Our prior written consent, which consent We may give or withhold in Our sole discretion. (c) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any Third Party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. (d) This Agreement may be amended, modified or supplemented by OpenBCI from time to time and without notice to You, and Your clicking the “I Agree” button below signifies Your agreement to the most-current version of the Agreement. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. (e) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. If any provision or part-provision of this Agreement is deemed invalid, illegal or unenforceable, the parties shall negotiate in good faith to agree upon a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision. (f) In the event You are entering into this Agreement on behalf of an entity named on the applicable Order Form, you hereby warrant and represent that you have authority to bind such entity and all authorized users of the Software representing such entity.