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| 7.1 All notices and other communications hereunder shall be in writing. Notices shall be made first to You at the email address you provided pursuant to Your License of the Hardware, Software and Documentation, and to the Company at [email protected], and shall be deemed delivered upon delivery to such email address, unless the party sending notice is unable to deliver to such email address two (2) consecutive times, in which notice must be made to the shipment address provided by You, or to the Company at the address listed on this website, which shall be deemed delivered with proof of delivery to such postal address. | 7.1 All notices and other communications hereunder shall be in writing. Notices shall be made first to You at the email address you provided pursuant to Your License of the Hardware, Software and Documentation, and to the Company at [email protected], and shall be deemed delivered upon delivery to such email address, unless the party sending notice is unable to deliver to such email address two (2) consecutive times, in which notice must be made to the shipment address provided by You, or to the Company at the address listed on this website, which shall be deemed delivered with proof of delivery to such postal address. | ||
| - | 7.3 In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void | + | 7.2 In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void |
| or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision. | or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision. | ||
| - | 7.5 The parties agree that any and all disputes or controversies of any nature between them arising at any time shall be determined by binding arbitration in accordance with the Commercial Arbitration Rules of the AAA before a single neutral arbitrator (“Arbitrator”) in the State of California, county of Santa Clara. The Arbitrator shall be mutually agreed upon by the parties; if the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the AAA. The Arbitrator shall determine how all expenses relating to the arbitration shall be paid, including without limitation, the respective expenses of each party, the fees of the arbitrator and the administrative fee of the American Arbitration Association. Any final outcome of such arbitration shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to any court of competent jurisdiction located in the State of California, which may be made ex parte, for confirmation and enforcement of the award. In addition, either party may seek equitable, non-monetary relief at any time in any court of competent jurisdiction located in the State of California without thereby waiving its right to arbitration of any dispute or controversy. All proceedings shall, to the extent permitted by law, be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. | + | 7.3 The parties agree that any and all disputes or controversies of any nature between them arising at any time shall be determined by binding arbitration in accordance with the Commercial Arbitration Rules of the AAA before a single neutral arbitrator (“Arbitrator”) in the State of California, county of Santa Clara. The Arbitrator shall be mutually agreed upon by the parties; if the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed by the AAA. The Arbitrator shall determine how all expenses relating to the arbitration shall be paid, including without limitation, the respective expenses of each party, the fees of the arbitrator and the administrative fee of the American Arbitration Association. Any final outcome of such arbitration shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to any court of competent jurisdiction located in the State of California, which may be made ex parte, for confirmation and enforcement of the award. In addition, either party may seek equitable, non-monetary relief at any time in any court of competent jurisdiction located in the State of California without thereby waiving its right to arbitration of any dispute or controversy. All proceedings shall, to the extent permitted by law, be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. |
| - | 7.6 This Agreement, Exhibit A, the order page and the terms and conditions and documents and instruments and other agreements among the parties hereto referenced herein: (a) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings both written and oral, among the parties with respect to the subject matter hereof; and (b) are not intended to confer upon any other person any rights or remedies hereunder. | + | 7.4 This Agreement, Exhibit A, the order page and the terms and conditions and documents and instruments and other agreements among the parties hereto referenced herein: (a) constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings both written and oral, among the parties with respect to the subject matter hereof; and (b) are not intended to confer upon any other person any rights or remedies hereunder. |
| - | 7.7 This Agreement shall be governed by and construed in accordance with the laws of the State of California, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. Subject to Section 7.5, each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of any court within the State of California, in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein, agrees that process may be served upon them in any manner authorized by the laws of the State of California for such persons and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue and such process. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement, and the parties disclaim application of the Uniform Computer Information Transactions Act to the maximum extent permissible. | + | 7.5 This Agreement shall be governed by and construed in accordance with the laws of the State of California, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof. Subject to Section 7.3, each of the parties hereto irrevocably consents to the exclusive jurisdiction and venue of any court within the State of California, in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein, agrees that process may be served upon them in any manner authorized by the laws of the State of California for such persons and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue and such process. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement, and the parties disclaim application of the Uniform Computer Information Transactions Act to the maximum extent permissible. |
| - | 7.8 In any action, proceeding or arbitration to enforce or construe this Agreement, in addition to any other remedies, the Company, if the prevailing party, shall be entitled to recover its reasonable costs and expenses, including attorney’s, consultant’s and expert’s fees and costs. | + | 7.6 In any action, proceeding or arbitration to enforce or construe this Agreement, in addition to any other remedies, the Company, if the prevailing party, shall be entitled to recover its reasonable costs and expenses, including attorney’s, consultant’s and expert’s fees and costs. |
| - | 7.9 Neither party may assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other party; provided, that such consent shall not be required if the Company assigns its rights and obligations to an assignee that acquires all or substantially all of such party’s stock or assets. Any attempted assignment in violation of the foregoing shall be void. The rights and obligations of the parties shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and | + | 7.7 Neither party may assign its rights or obligations under this Agreement either in whole or in part without the prior written consent of the other party; provided, that such consent shall not be required if the Company assigns its rights and obligations to an assignee that acquires all or substantially all of such party’s stock or assets. Any attempted assignment in violation of the foregoing shall be void. The rights and obligations of the parties shall be binding upon and inure to the benefit of the parties and their respective heirs, representatives, successors and |
| permitted assigns. | permitted assigns. | ||
| - | 7.10 Neither party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, perils of the air, public enemies, war, riots, strikes, weather conditions, mechanical delay or failure of truck, aircraft or other equipment, governmental actions, shortages of equipment or supplies, acts or omissions of third parties, failure of the Internet or any other cause beyond its reasonable control. | + | 7.8 Neither party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, perils of the air, public enemies, war, riots, strikes, weather conditions, mechanical delay or failure of truck, aircraft or other equipment, governmental actions, shortages of equipment or supplies, acts or omissions of third parties, failure of the Internet or any other cause beyond its reasonable control. |
| - | EXHIBIT A | + | V1.0 |
| - | NEUROSKY DEVELOPER SUPPORT PROGRAM | + | Revised 03/20/16 |
| - | You shall be entitled to participate in the NeuroSky Developer Support Program for a period of one year following receipt of payment for your participation in said program ( “Payment Date”), as indicated on the records of the Company. You may renew Your participation in the NeuroSky Developer Support Program at any time for an annual fee of $1,500 per individual or legal entity that will be using the Software licensed under this Agreement, | + | |
| - | payable on or before each yearly anniversary of the Payment Date. | + | |
| - | The Developer Support Program provides: | + | |
| - | • Technical support with 24 hour email response. Technical support can be reached at [email protected]. | + | |
| - | • Software update releases for any MDT and/or MRT that You have licensed | + | |
| - | • Access to the Support website (http://support.neurosky.com), with design examples, FAQs and tips | + | |
| - | Update Releases: | + | |
| - | During the time that You are participating in the NeuroSky Developer Support Program, You shall be notified when new updates or releases of any MDT and/or MRT that you have licensed are available for download via FTP or the NeuroSky website, or via a CD sent to the Licensee. The Company’s technical support team will respond to technical questions based on the latest updates and releases. You must move to the latest release to receive bug fixes and or new features. | + | |
| - | Additional Terms | + | |
| - | The Company may terminate the Developer Support Program at any time, for any reason, with a pro rata refund of the annual fee paid by You. In addition, the Company may increase the renewal fee for any future annual periods in its sole discretion upon written notice to Licensee. Shipment fees and insurance associated with updates of hardware, firmware or software, or pursuant to an RMA, recall or otherwise for shipments from the Company shall be Your responsibility. | + | |
| - | V.2 | + | |
| - | Revised 06/26/09 | + | |