End User License Agreement
INTERAXON END USER LICENSE AGREEMENT
PLEASE REVIEW THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY. THIS EULA IS A BINDING LEGAL AGREEMENT BETWEEN INTERAXON INC. AND/OR ITS AFFILIATES (“INTERAXON“) AND YOU AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “YOU“) REGARDING THE SOFTWARE THAT YOU ARE INSTALLING, DOWNLOADING, COPYING, ACCESSING OR USING (INCLUDING ANY FUTURE UPDATES, UPGRADES OR VERSIONS OF THE SOFTWARE) (COLLECTIVELY, THE “SOFTWARE“), AND ANY ASSOCIATED INTERAXON SERVICES AND ACCOMPANYING DOCUMENTS, INFORMATION, MANUALS OR OTHER RELATED MATERIALS PROVIDED BY INTERAXON AS PART OF, OR IN CONNECTION WITH THE SOFTWARE.
THE SOFTWARE AND THE SERVICES ARE FOR INFORMATION PURPOSES ONLY AND ARE NOT INTENDED TO BE USED FOR ANY OTHER PURPOSE, INCLUDING MEDICAL OR DIAGNOSTIC-RELATED PURPOSES.
THE SOFTWARE, USER INFORMATION, USER INTERFACE, SUPPORT, COMMUNICATION AND AGREEMENT, ARE ONLY PROVIDED IN CERTAIN LANGUAGES. DO NOT USE THE MUSE OR OTHER INTERAXON PRODUCTS UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND ONE OF THE AVAILABLE LANGUAGES. FURTHER, DO NOT INSTALL, DOWNLOAD OR USE THIS SOFTWARE UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND THIS AGREEMENT.
TO ENSURE THAT YOU UNDERSTAND THE ABOVE TWO PARAGRAPHS, TRANSLATIONS OF THESE PARAGRAPHS ARE SET OUT AT THE END OF THIS DOCUMENT (UNDER THE HEADING ‘TRANSLATIONS’).
BY INSTALLING, DOWNLOADING, COPYING, ACCESSING OR USING THE SOFTWARE, OR OTHERWISE ACCEPTING THIS EULA, OR ‘CLICKING’ ACCEPT (IF APPLICABLE), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT UNDERSTAND OR AGREE, YOU MUST NOT INSTALL, DOWNLOAD, COPY, ACCESS OR USE THE SOFTWARE.
1. LICENSE GRANT AND RESTRICTIONS.
TERMINATION. This EULA is effective until terminated. You may terminate this EULA at any time by uninstalling the Software and destroying all copies of the Software in your possession or control and ceasing to use all associated Interaxon Services. Interaxon may terminate this EULA immediately upon notice to you for any or no reason. The EULA will terminate immediately without notice from Interaxon if you fail to comply with any provision of this EULA (including breach for nonpayment, if applicable). Upon termination of this EULA, you agree to immediately uninstall the Software and destroy all copies of the Software and cease using all associated Interaxon Services.
LIMITED WARRANTIES BY INTERAXON.
- License Grant. Interaxon grants you a limited, personal, non-transferable, non-sub-licensable, and non-exclusive license to install and use a single copy of the Software for your information and non-commercial use as part of the product or hardware supplied by or on behalf of Interaxon in which the Software is contained or for which it is provided, together with any applicable Interaxon Services (the “License”).
- Restrictions Including User-Generated Content.
- With respect to the Software and Interaxon Services, you will not (and will not allow any third party to): (a) exceed the scope and purpose of the License grant above; (b) remove or alter any copyright notice or any other notices, (c) modify or create derivative works; (d) reverse engineer or attempt to discover any source code or underlying ideas or algorithms; (d) provide, lease, lend, sublicense, use for timesharing or otherwise use or allow the use of it for the benefit of any third party (including minors, if applicable) unless you take full responsibility for ensuring that its use by anyone else will comply with the terms of this EULA; or (e) use, or allow the use, transfer, transmission, export, or re-export of it or portion thereof in violation of any export control laws or regulations, or in violation of any laws or regulations.
- For the purposes of this EULA, “User Generated Content” means any text, feedback, ideas, suggestions, documents, proposals, photographs or other data and information you or anyone acting on your behalf submits to Interaxon including, without limitation, through online and mobile services made available by or on behalf of Interaxon from time to time including, but not limited to, certain websites, widgets, computer programs, platforms, and mobile applications (collectively, the “Interaxon Services”). You represent that your User Generated Content: (a) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; (b) will not violate any law, statute, ordinance or regulation; (c) will not be obscene or contain child pornography; and (d) will not be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate.
- You agree to indemnify, hold harmless and defend Interaxon and its licensors from and against any claims or suits, including attorneys’ fees and expenses, which arise or result from any breach of this EULA by you or by another who has access to or use of the Software, Interaxon Services or User Generated Content through you.
- License Grant – Personally Identifiable User Generated Data. For the purposes of this EULA, “Personally Identifiable User Generated Data” means User Generated Content that identifies you and is considered personal information in accordance with applicable privacy and data protection laws. For clarity, Personally Identifiable User Generated Data does not include de-identified and/or aggregated information. You own your Personally Identifiable User Generated Data; Interaxon can’t use it without your consent. You grant to Interaxon a revocable, non-exclusive, worldwide, royalty-free license, to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use Personally Identifiable User Generated Data in any manner and at any time only so far as required to deliver Software, Interaxon products and Interaxon Services. You waive any rights of publicity, moral or other similar such right with respect to Personally Identifiable User Generated Data while used in accordance with the preceding sentence.
- License Grant – Non-Personally Identifiable User Generated Data. For the purposes of this EULA, “Non-Personally Identifiable User Generated Data” means all User Generated Content except for Personally Identifiable User Generated Data. You grant to Interaxon a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license, with the right to sublicense, to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use and commercially exploit Non-Personally Identifiable User Generated Data in any manner and at any time. You waive any rights of publicity, moral or other similar such right with respect to the Non-Personally Identifiable User Generated Data that might require your permission for Interaxon to use such Non-Personally Identifiable User Generated Data.
- Intellectual Property. The Software and Interaxon Services are protected by copyright laws, international copyright, patents, trademarks, trade secrets and other intellectual property rights. As between you and Interaxon, Interaxon retains all right, title, interest, ownership and intellectual property rights in and to the Software and Interaxon Services. The License confers no title or ownership in the Software or Interaxon Services and is not a sale of any rights in the Software or Interaxon Services. The License does not grant you any right to any enhancement or update to the Software and Interaxon Services. Interaxon reserves any and all rights not expressly granted to you. The Software and/or Interaxon Services may incorporate third party intellectual property or open source code.
- Permitted Age. You represent and warrant that: a) you are of legal age to form a binding contract with Interaxon, and b) are not barred from accessing the Software or Interaxon Services under the laws of the United States, Canada, or other applicable jurisdiction, including the country in which you reside or from where you download, install, copy, access or use the Software or Interaxon Services. By accepting this EULA you represent that you understand and agree to the foregoing.
- For Information Purposes Only. Content generated or found through Interaxon Services, Software or Interaxon products is for informational purposes only and is not intended to replace the relationship between you and your physician, healthcare provider or other professional you are working with (collectively, “Professional”). Interaxon’s Muse headband is not a medical device and Interaxon is not a licensed medical or healthcare provider and has no expertise in diagnosing, examining, or treating medical conditions of any kind. Further, you understand that any information generated from Interaxon Services, Software or Interaxon products is not medical information and you will ensure that medical information or other personal health information is not uploaded to Interaxon Services or Software or Interaxon products. You assume all liability for any medical or health information that is created or stored or uploaded on Interaxon Services, Software or Interaxon products, and you agree to fully indemnify and hold Interaxon harmless from any liability, expense, suit, action or claim (including regulatory proceedings) related to your breach of this EULA including without limitation, any liability, expense, suit, action or claim that arises through your use of Interaxon Services, Software or Interaxon products.
- Physical Symptoms. In rare cases, people experience seizures or blackouts due to exposure to flashing lights and patterns created by the display of certain applications on mobile or other such similar devices used in conjunction with the Software, Interaxon Services or Interaxon Products. If you have done so, or have experienced any nausea, involuntary movements, tingling, numbness, or vision issues while using such devices in the past, you should consult with your doctor before using similar applications and should immediately cease all such use of such applications should the symptoms re-occur. In any event you should avoid prolonged use of such applications to minimize any possible discomfort or fatigue, including any muscle, joint or eye strain and should closely monitor your children’s use of technology to avoid possible problems.
- Muse Connect Platform and/or Other Services. If you wish to share the information generated through the Software and/or Interaxon Services with a third party such as a Professional, you may do so by providing your consent to such third party and/or Interaxon. You may take back or revoke your consent (unless Interaxon has already acted based on it) by submitting a revocation request in writing to Interaxon through http://www.choosemuse.com/contactsupport, specifying that you revoke your consent to share information generated through the Software and/or Interaxon Services with the Professional. Your revocation will take effect, when Interaxon actually receives it. Interaxon cannot give it retroactive effect, so it will not affect any use or disclosure that occurred in Interaxon’s reliance on your consent prior to revocation.
- Statutory Protections. THE APPLICABLE LAWS OF SOME COUNTRIES MAY NOT ALLOW THE EXCLUSION OF IMPLIED GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS AND/OR THE LIMITATION OR EXCLUSION OF LIABILITY EITHER IN CONTRACTS OR IF YOU ARE A CONSUMER, AND AS SUCH, SOME OR ALL OF THESE EXCLUSIONS MAY NOT APPLY TO YOU, IN WHICH CASE THIS AGREEMENT DOES NOT AFFECT YOUR STATUTORY RIGHTS.
- Limited Warranty. INTERAXON DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE. THE SOFTWARE AND INTERAXON SERVICES ARE PROVIDED “AS IS” AND INTERAXON DISCLAIMS ALL GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND INTERAXON SERVICES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN LIABILITY FOR DEATH OR BODILY INJURY RESULTING FROM INTERAXON’S GROSS NEGLIGENCE, INTERAXON, ITS SERVICE PROVIDERS AND ITS LICENSORS SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CLAIMS ARISING FROM OR RELATED TO: (a) THE INSTALLATION, DOWNLOAD, COPYING, ACCESS TO OR USE OF THE SOFTWARE OR THE ACCESS TO OR USE OF ANY INTERAXON SERVICE(S); OR (b) THE INABILITY TO USE OR THE NON-PERFORMANCE OF THE SOFTWARE OR ANY INTERAXON SERVICE(S), IN ALL CASES WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, EVEN IF INTERAXON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF INTERAXON, ITS LICENSORS AND SERVICE PROVIDERS EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE, OR THE APPLICABLE INTERAXON SERVICE, IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM UNDER THIS EULA.
- Basis of the Bargain; Exclusions. The disclaimers of warranties and limitations of liability set forth above are fundamental elements of the basis of the agreement between you and Interaxon. You understand and agree that Interaxon would not be able to economically or reasonably provide the Software or the Interaxon Services to you without these limitations.
- Governing Law. Unless stated otherwise below, this EULA will be governed and construed in accordance with the laws of the Province of Ontario, Canada and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Ontario in Toronto, Ontario.
- If you are domiciled in a country located in Europe, Middle-East or Africa, this EULA will be governed and construed in accordance with the laws of England and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of London, England.
- If you are domiciled in a country located in Asia-Pacific, this EULA will be governed and construed in accordance with the laws of Singapore and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Singapore.
- If you are domiciled in the United States of America, this EULA will be governed and construed in accordance with the laws of New York, USA and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of New York city, New York, USA.
The United Nations Convention on Contracts of the International Sale of Goods is expressly excluded.
- Language. If this EULA is 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 (http://www.choosemuse.com/legal/eula).
- Changes to EULA. Interaxon may change the terms and conditions of this EULA at any time and recommends that you review them on a regular basis. You can review the most current version of this EULA at: http://www.choosemuse.com/legal or through the Interaxon Services. If Interaxon makes a change to the terms, it will post the revised version at the link above. You agree that your continued use of the Software after this EULA has been changed means that you have agreed to the changed terms.
- Entire Agreement; Amendment. This EULA is the entire agreement with respect to the Software and Interaxon Services and supersedes any other agreements or discussions, oral or written.
- Interpretation. If any provision, clause or term of this EULA is determined by a court of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of that provision, clause or term will not affect the validity or enforceability of the remaining provisions, clauses and terms or the validity or enforceability of that provision, clause or term in any other jurisdiction. If any provision of this EULA is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provisions shall be severed from the EULA for the purposes of that jurisdiction and the other provisions shall remain in full force and effect. No waiver by either party of a breach or omission by the other party to this EULA will be binding on the waiving party unless it is expressly made in writing by the waiving party.
- Survival. The provisions of this EULA that under a commercially reasonable interpretation reveal that the parties would have such provisions survive the termination of this EULA, including without limitation, Sections 1.2, 1.3, 1.4, 1.5, 1.7, 1.8, 1.9, 2, 3, and 4 will survive the termination of this EULA.
- Other Terms. Notwithstanding anything to the contrary contained herein or any products or services from Interaxon, Interaxon and you acknowledge and agree to the following terms for the benefit of Apple Inc. and its subsidiaries and affiliates (collectively, “Apple”): (a) “Made for iPod,” “Made for iPhone,” and “Made for iPad” mean that an electronic accessory has been designed to connect specifically to iPod, iPhone, or iPad, respectively, and has been certified by the developer to meet Apple performance standards. Apple is not responsible for the operation of this device or its compliance with safety and regulatory standards. Please note that the use of this accessory with iPod, iPhone, or iPad may affect wireless performance; (b) the following is applicable for end users in all jurisdictions except Japan: AirPlay, iPad, iPhone, iPod, iPod classic, iPod nano, iPod touch, and Retina are trademarks of Apple Inc., registered in the U.S. and other countries. iPad Air, iPad mini, and Lightning are trademarks of Apple Inc.; (c) the following is applicable for end users in Japan: AirPlay, iPad, iPhone, iPod, iPod classic, iPod nano, iPod touch, and Retina are trademarks of Apple Inc., registered in the U.S. and other countries. iPad Air, iPad mini, and Lightning are trademarks of Apple Inc. The trademark “iPhone” is used with a license from Aiphone K.K registered in the U.S. and other countries. iPad Air, iPad mini, and Lightning are trademarks of Apple Inc. All other trademarks and trade names are the property of their respective owners and other company and product names mentioned herein may be trademarks of their respective companies.
- If you any information about the Software or Interaxon Services, you may consult the user documentation that is provided with the Software or Interaxon Services. If you wish to request customer support from Interaxon for the Software or an Interaxon Service, or if you wish to provide Feedback about the Software or Interaxon Services to Interaxon, you may do so by contacting Interaxon at http://www.choosemuse.com/contactsupport or at Interaxon Inc. 555 Richmond Street West, Suite 900, Toronto, Ontario, Canada M5V 3B1.
THIS EULA WAS LAST UPDATED ON APRIL 1, 2019
Terms of Sale
TERMS OF SALE – GENERAL SALES AND PROFESSIONALS PROGRAM
BY CLICKING ON THE BUTTON TO SUBMIT AN ORDER, OR BY OTHERWISE CONTINUING WITH A PURCHASE/LICENSE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT UNDERSTAND OR AGREE WITH THE TERMS, YOU MUST NOT CLICK THE BUTTON TO SUBMIT AN ORDER OR OTHERWISE PROCEED WITH THE PURCHASE/LICENSE.
- MUSE SOFTWARE IS FOR INFORMATION PURPOSES ONLY / LANGUAGE
THE SOFTWARE AND SERVICES ARE FOR INFORMATION PURPOSES ONLY AND ARE NOT INTENDED TO BE USED FOR ANY OTHER PURPOSE, INCLUDING MEDICAL OR DIAGNOSTIC-RELATED PURPOSES.
THE SOFTWARE, USER INFORMATION, USER INTERFACE, SUPPORT, COMMUNICATION AND AGREEMENT, ARE ONLY BE PROVIDED IN CERTAIN LANGUAGES. DO NOT USE THE MUSE OR OTHER INTERAXON PRODUCTS, UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND ONE OF THE AVAILABLE LANGUAGES. FURTHER, DO NOT INSTALL, DOWNLOAD OR USE THIS SOFTWARE UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND THIS AGREEMENT.
TO ENSURE THAT YOU UNDERSTAND THE ABOVE TWO PARAGRAPHS, TRANSLATIONS OF THESE PARAGRAPHS ARE SET OUT AT THE END OF THIS DOCUMENT (UNDER THE HEADING ‘TRANSLATIONS’).
- Application. These Terms will apply to all orders placed by you, or as otherwise referenced in a written agreement between you and Interaxon. You acknowledge that the information contained on the Site may contain technical inaccuracies or typographical errors. The Site, all content available on or through the Site, and all related communications are provided on an “AS IS” basis. Interaxon makes no representations or warranties as to the completeness, accuracy, adequacy or reliability of any information contained on or through the Site.
- Requirements. To place an order, you must:
- provide up-to-date, complete and accurate registration information as requested by Interaxon on the Site, which may include, without limitation, your first and last name, institution name, mailing address, phone number and email address;
- provide up-to-date, complete and accurate payment information (for example, credit card information for a credit card that is valid and legally registered to you);
- be at all times in compliance with these Terms and applicable law including, without limitation, the requirement to be of the age of majority in your jurisdiction; and
- in relation to purchases under Interaxon’s Professionals Program, (A) be a member of Interaxon’s Professionals Program at the time you place an order and thereafter for at least as long as you possess or control inventory of Products; and (B) comply at all times with the requirements of such program as they may be amended from time to time.
- Accuracy. You specifically agree that Interaxon may rely on the accuracy of the information you provide to Interaxon (including, without limitation, any information you have provided as part of your application for the Professional’s Program, if applicable), and that Interaxon will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to Interaxon.
- General Sales are End User Sales Only. All Products available through the Site for general sale are intended for end user customers only. You may not purchase Products for resale, and Interaxon reserves the right to refuse or cancel your order or to deny you any return rights, if we suspect you are not complying with these terms and conditions.
- Interaxon Professionals Program Sales. All Products purchased under Interaxon’s Professionals Program are intended only for your personal use or your direct sale to your end user customers as described in your application for the Professionals Program (“Authorized Purchaser”). You may not purchase Products for resale to anyone other than Authorized Purchasers. You may not sell any Products online or indirectly to anyone other than your Authorized Purchasers. All Product purchases are subject to Interaxon’s end user license agreement at http://www.choosemuse.com/legal.
- We reserve the right to refuse or cancel your order, or to deny you any return rights, if we suspect you are not complying with these terms and conditions. You will ensure that you and any anyone representing you: (i) does not participate in any threatening, deceptive, tortious, offensive, misleading, obscene, illegal, or unethical practices that may be detrimental to Interaxon or to any Interaxon products and/or services; (ii) only make representations about Interaxon and Interaxon products and/or services that are fair and accurate; (iii) does not make any representations, warranties, or guarantees to end users concerning any Interaxon products and/or services without Interaxon’s prior express written authorization; (iv) comply at all times with all applicable federal, national, state, provincial and local laws and regulations including, without limitation, those relating to tax, foreign exchange, anti-corruption, transfer of money, marketing, consumer protection, data protection, anti-mafia, organized crime, anti-terrorism or maintenance of public order; (v) does not sell refurbished or used Interaxon products, or any parts or materials associated therewith, in whole or in part; (vi) does not engage in business practices, promotions or advertising which may be injurious to the reputation or business goodwill of Interaxon and/or its affiliates; (vii) upon receiving notice of removal of a product, forthwith stop marketing and distribution of Interaxon products specified in such notice; (viii) does not modify any Interaxon products or replace any software on any Interaxon product or modify any point of sale packaging; and (ix) does not use any Interaxon marks (including, without limitation, as part of any press releases, products, services, domain name, company name, marketing, and/or promotional materials) without Interaxon’s prior express written authorization and in compliance with the Interaxon Branding Guidelines (which you must obtain from Interaxon).
- DELIVERY AND SHIPPING
- Acceptance Required. All orders are subject to acceptance by Interaxon, and any rejection of an order will be made in Interaxon’s sole discretion, regardless of whether the order was confirmed through the Site or otherwise. If you have been charged for an order that is subsequently rejected by Interaxon, Interaxon will refund the amount of that order.
- Delivery Requirements. Interaxon will make commercially reasonable efforts to accommodate your delivery requirements; however, delivery is subject to availability of resources at the time of order placement. Interaxon will therefore not be liable in any way for any delay or damage arising from Interaxon’s failure to meet your delivery requirements or any specified delivery dates.
- Shipping Terms. All shipments will be made FCA Interaxon’s facilities (Incoterms 2010). Risk of loss for Products will pass to you in accordance with the FCA (Incoterms 2010) shipping. You are responsible for insuring the shipment and for pursuing the carrier for any loss occurring in transit.
- Importer of Record. As you are the importer of record in the destination country, you are responsible for: (a) paying for all import fees such as import duties and customs taxes, and (b) ensuring that Products can be lawfully imported, and comply with all laws and regulations of the destination country. With respect to each item for which import fees have been calculated, you authorize Interaxon to designate a carrier (“Designated Carrier“) to act as your agent with the relevant customs and tax authorities in the destination country, to clear your merchandise, and, if applicable, process and remit your actual import fees for such item. Your order may include an estimate (“Import Fees Estimate“) of some or all of the import fees that will be levied on the items in your order for shipment. By placing your order, you agree to allow Interaxon to collect the Import Fees Estimate for the applicable items in your order. This amount will be used, on your behalf, to reimburse the Designated Carriers for the import fees that they have paid on your behalf to the appropriate authorities of the destination country. The Import Fees Estimate may or may not include customs duties. If they do not include customs duties, you will be responsible for making arrangements with the customs authorities for payment of duties. The Import Fees Estimate may be more or less than the final actual amount of import fees due and payable. Interaxon has no control over the import fees and cannot always predict with 100% accuracy what the final actual amounts may be. For greater certainty, you should contact your local customs office for further information on the import taxes and customs duties that may be applicable to your purchase. You agree and acknowledge that: (a) the actual import fees may be more or less than the Import Fees Estimate; and (b) you will NOT receive any refund in the case that the actual import fees differ from the Import Fees Estimate.
- Check Order. You are responsible for examining all shipments promptly upon receipt. If you discover any shortages or incorrect products in the shipment, you must notify Interaxon immediately. Please check the order carefully, as no claim for shortages or deficiencies will be accepted by Interaxon after five (5) days from delivery of the products.
- PRICING AND PAYMENT
- Currency. If the currency for your purchase is not expressly stated, then the prices are in US dollars.
- Prices. Interaxon reserves the right to change its standard prices without notice. Prices are exclusive of, and you will pay: (a) all applicable federal, state, provincial and local taxes (including all applicable sales, use, consumption, goods and service, value added, and withholding taxes), unless you have provided Interaxon with an appropriate tax exemption certificate or number, and (b) all fees and charges related to customs, duties and brokerage. Interaxon may charge sales tax for sales of Products through the Site. Any sales tax charged will be indicated during the checkout process.
- Rejected Payments. Where your payment is rejected for any reason, you will be responsible for any fees and charges associated with such rejection, as well as interest on the amount owing. Interest will be the lesser of 1.5% per month or the maximum rate permitted by law, commencing on the date that your payment was rejected. Interaxon may, in its sole discretion, delay shipment of, or cancel, your order where your payment is rejected.
- TITLE, INTELLECTUAL PROPERTY, USE RESTRICTIONS AND LICENSE GRANTS
- Title to Products. Title to any Products and any other products bought by you will pass to you upon your full payment for such Product in accordance with Section 4 (Pricing and Payment).
- Title to Software. Notwithstanding the foregoing, title to software will not pass to you, and you are hereby put on notice that your use of any Interaxon software supplied to you is governed by and subject to the EULA as provided to you with the software or otherwise located at http://www.choosemuse.com/legal. The EULA may be included as a file with the software that you download for use with hardware acquired under this Agreement. Use of any third party software will be governed by and subject to your agreeing to the terms of all applicable third party agreements and licenses respecting such third party software.
- Intellectual Property Rights. You do not acquire any intellectual property or other proprietary rights under these Terms including, without limitation, any right, title or interest in and to patents, copyrights, trademarks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to any Interaxon products, software and/or services, or any part thereof. Your only rights in relation to Interaxon products, software and/or services, or any part thereof, will be those rights expressly licensed or granted to you under these Terms or in another separate written agreement between you and Interaxon. Any rights not expressly granted under these Terms are reserved.
- Restrictions/Representations. Except to the extent expressly agreed upon in writing by you and Interaxon, you will not (and will not allow any third party to): (a) use Product for any purpose other than as authorized under these Terms, or use any associated software for any purpose other than as authorized under the applicable end user license agreement for the particular software; (b) remove or alter any copyright notice or any other notices that appear on Product or the associated software, or modify or create derivative works thereof; (c) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of Product or any associated software; (d) provide, lease, lend, sublicense, use for timesharing or otherwise use or allow the use of Product or the associated software for the benefit of any third party (other than Authorized Purchasers in relation to purchases/licenses under Interaxon’s Professionals Program only); or (e) use any Product or any associated software in violation of any laws or regulations, or use, transfer, transmission, export, or re-export of Product or any associated software or portion thereof in violation of any export control laws or regulations.
- User Generated Content. For the purposes of these Terms, “User Generated Content” means any text, feedback, ideas, suggestions, documents, proposals, photographs or other data and information you, Authorized Purchasers (in relation to purchases/licenses under Interaxon’s Professionals Program only), or anyone acting on your behalf submits through the online and mobile services made available by Interaxon from time-to-time including, but not limited to, certain websites including the any Site, widgets, computer programs and mobile applications hosted by or on behalf of Interaxon (collectively, the “Interaxon Services”). You represent that your User Generated Content will not: (a) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; (b) violate any law, statute, ordinance or regulation; (c) be obscene or contain child pornography; and (d) be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate. You agree to indemnify, hold harmless and defend Interaxon and Interaxon’s affiliates, service providers and licensors from and against any claims or suits including, without limitation, attorney fees and expenses, which arise or result from any breach of this Section by you or by another who has access to or use of Product, Interaxon Services, or User-Generated Content through you or products purchased through you.
- Third Party Equipment, Software and Services. You are responsible for the selection, implementation, and performance of any and all third party equipment, software and services used in connection with Products, and for compliance with any licenses, conditions, laws, rules and/or regulations respecting the use of Products and any equipment, services or software used in conjunction with Product.
- Compatibility. Before ordering Products, you should check http://choosemuse.com/compatibility (or other Interaxon Services) to determine if the Product is designed to work with your smartphone or tablet or other third party equipment. Interaxon assumes no responsibility with regard to the performance or use of your smartphone/tablet/other third party equipment with the Products.
- Permitted Age. Interaxon Services, software and products should only be used by individuals aged 13 years or older (“Permitted Age”). If the user is of the Permitted Age or older but under the age of majority in the jurisdiction in which the user is domiciled, the user should review these Terms and the applicable end user license agreements for any software with the user’s parent or guardian to make sure that the parent or guardian understands these Terms and the applicable end user license agreements.
- Informational Purposes Only. Content generated or found through Interaxon Services or products is for informational purposes only and is not intended to replace the relationship between you and your physician or other health-care provider. Interaxon is not a licensed medical or health-care provider and has no expertise in diagnosing, examining, or treating medical conditions of any kind.
- Reseller of Third Party Products. If Interaxon is reselling any Third Party Products to you pursuant to these Terms, Interaxon will pass through to you any transferable warranties and indemnities provided to Interaxon by the provider of the Third Party Products including, without limitation, any warranties for the products and indemnities for intellectual property infringement. To the extent permitted by law, in connection with Third Party Products, notwithstanding anything to the contrary, Interaxon provides no indemnities and makes no other warranty, express or implied including, without limitation, warranty of merchantability, fitness for purpose or non-infringement. For the purposes of these Terms, “Third Party Product(s)” means any software, application, technology, standard or specification, product or service developed by or on behalf of a third party including, without limitation, the Muse Hard Carrying Case and Smith eyewear. For Smith Eyewear please refer to www.smithoptics.com for warranty and support.
- Design. Interaxon reserves the right to make changes in the design of Product and/or other Interaxon Services and/or any associated software without the obligation to make equivalent changes to products that have previously been supplied to you.
- Orders. Except as expressly set forth in these Terms, you will not be entitled to change or cancel any order that has previously been accepted by Interaxon without the prior written agreement of Interaxon. You shall not be entitled to any refund, except to the extent expressly stated in this Agreement.
- LIMITED WARRANTIES, EXCLUSIONS AND SUPPORT BY INTERAXON
- Statutory Protections. THE APPLICABLE LAWS OF SOME COUNTRIES MAY NOT ALLOW THE EXCLUSION OF IMPLIED GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS AND/OR THE LIMITATION OR EXCLUSION OF LIABILITY EITHER IN CONTRACTS OR IF YOU ARE A CONSUMER, AND AS SUCH, SOME OR ALL OF THESE EXCLUSIONS MAY NOT APPLY TO YOU, IN WHICH CASE THESE TERMS DO NOT AFFECT YOUR STATUTORY RIGHTS.
- Limited Warranty. Interaxon and/or its affiliates have provided you with a limited warranty (which can be found at http://www.choosemuse.com/legal) relating to defects in materials or workmanship for the Muse headband. This limited warranty sets out certain situations when Interaxon and/or its affiliates will, or will not, provide a remedy for the Muse headband. You may have legal (statutory) rights that are in addition to those set out in the limited warranty (such as consumer laws in the country in which you live) (“Consumer Rights”). None of your Consumer Rights are limited or excluded. You must follow Interaxon’s return process described in the limited warranty in order to make a claim under the limited warranty.
EXCEPT TO THE EXTENT EXPRESSLY SET OUT IN THE LIMITED WARRANTY, MUSE HEADBANDs AND ANY OTHER PRODUCTS/SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS ARE PROVIDED “AS IS AND WITH ALL FAULTS” AND INTERAXON DISCLAIMS ALL GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO MUSE AND ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS INCLUDING, BUT NOT LIMITED TO: (A) THE WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT OF THIRD PARTY RIGHTS; (B) PROVISION, DELAY OF OR FAILURE TO PROVIDE SUPPORT OR SERVICES, INFORMATION, SOFTWARE AND RELATED CONTENT THROUGH THE MUSE HEADBANDS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS OR OTHERWISE ARISING OUT OF THE USE OF THE MUSE HEADBAND AND/OR ANY OTHER PRODUCTS OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS; (C) THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; AND/OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.
- Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN LIABILITY FOR DEATH OR BODILY INJURY RESULTING FROM INTERAXON’S GROSS NEGLIGENCE, INTERAXON AND INTERAXON’S AFFILIATES, SERVICE PROVIDERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSS OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE OF PRODUCTS OR SERVICES OR FUNCTIONALITY, BUSINESS INTERRUPTION, LOSS, INACCURACY, INTERRUPTION OR CORRUPTION OF INFORMATION (INCLUDING DATA OR OTHER PECUNIARY LOSS)) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CLAIMS INCLUDING, WITHOUT LIMITATION, ARISING FROM OR RELATED TO: (a) USE OF MUSE HEADBANDS AND/OR ANY OTHER PRODUCT AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS; OR (b) THE INABILITY TO USE OR THE NON-PERFORMANCE OF MUSE HEADBANDS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS, IN ALL CASES WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, EVEN IF INTERAXON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF INTERAXON AND INTERAXON’S AFFILIATES, SERVICE PROVIDERS AND LICENSORS EXCEED THE NET PURCHASE PRICE PAID BY YOU TO INTERAXON FOR AFFECTED PRODUCTS AND SERVICES ACQUIRED BY YOU UNDER THESE TERMS IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Basis of the Bargain; Exclusions. The disclaimers of warranties and limitations of liability set forth above are fundamental elements of the basis of the agreement between you and Interaxon. You understand and agree that Interaxon would not be able to economically or reasonably provide the products and services to you without these limitations.
- Support. Interaxon will not be obligated to provide any support or maintenance services for Muse headbands and any other products and services unless otherwise expressly agreed upon in writing by you and Interaxon. However, this provision does not relieve Interaxon of its warranty obligations described in Section 7.b. (Limited Warranty).
- CANCELLATION AND TERMINATION
- Termination Rights. Interaxon may terminate these Terms upon notice to you, and may also stop any products in transit to you and suspend the delivery of products and/or services to you, without penalty, if you: (a) fail to make any payment due under these Terms; or (b) commit a breach of these Terms (other than payment) and fail to remedy such breach within thirty (30) days of receiving notice of such breach.
- Effect of Termination. Upon termination of these Terms for your breach: (a) all of Interaxon’s performance obligations hereunder will immediately cease, (b) your license to use any software provided to you hereunder will immediately cease, and you will either return all such software to Interaxon or confirm, upon request from Interaxon, that such software has been destroyed and (c) any payments then due to Interaxon become immediately payable in full.
- ACCOUNTS AND USER CONDUCT
- Third-party Service Provider. In certain regions or for certain products, a third-party service provider may fulfill orders made on Interaxon’s online store. In such regions, the terms and conditions contained in these Terms will still apply.
- Product Information. Please refer to product safety and regulatory information and trademark attribution statements located at http://www.choosemuse.com/legal.
- Interpretation. If any provision, clause or term of these Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of that provision, clause or term will not affect the validity or enforceability of the remaining provisions, clauses and terms or the validity or enforceability of that provision, clause or term in any other jurisdiction. If any provision of these Terms is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provisions shall be severed from the Terms for the purposes of that jurisdiction and the other provisions shall remain in full force and effect. No waiver by either party of a breach or omission by the other party under these Terms will be binding on the waiving party unless it is expressly made in writing and signed by the waiving party.
- Governing Law. Unless stated otherwise below, these Terms, and all Product requirements, will be governed by, and construed in accordance with, the laws of the Province of Ontario, Canada and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Ontario in Toronto, Ontario.
- If you are domiciled in a country located in Europe, Middle-East or Africa, these Terms will be governed and construed in accordance with the laws of England and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of London, England.
- If you are domiciled in a country located in Asia-Pacific, these Terms will be governed and construed in accordance with the laws of Singapore and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Singapore.
- If you are domiciled in the United States of America, these Terms will be governed and construed in accordance with the laws of New York, USA and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of New York city, New York, USA.
The United Nations Convention on Contracts of the International Sale of Goods is expressly excluded.
- Survival. The provisions of these Terms that under a commercially reasonable interpretation reveal that the parties likely would have such provisions survive termination or expiration of these Terms including, without limitation, Sections 5, 6, 7, 8, 9 and 10 will survive the termination or expiration of this Terms.
- Contact. If you have any questions or inquiries regarding these Terms or any order or purchase, please contact Interaxon through http://www.choosemuse.com/contactsupport or 555 Richmond Street West, Suite 900, Toronto, Ontario, Canada M5V 3B1. Please note that e-mail communications will not necessarily be secure, so please do not include credit card information or other sensitive or personal information in your e-mail correspondence with Interaxon.
- Language. 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.
- Electronic Communications. For contractual purposes, you consent to receive communications electronically from Interaxon and you agree that all agreements, notices, disclosures and other communications that Interaxon provides to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights related to electronic communications.
- Entire Agreement. These Terms constitute the entire agreement between the parties and supersedes all previous agreements relating to the subject matter hereof. These Terms may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties.
These Terms were last updated on April 1, 2019.
Terms of Service
MUSE SUBSCRIPTION SERVICE TERMS
Last Updated – April 1, 2019
PLEASE CAREFULLY REVIEW these Muse Subscription Service Terms (the “Terms”). The Terms are a binding legal agreement between Interaxon Inc. and/or its Affiliates (“Interaxon”, “we” or “us”), an Ontario Canada corporation located at 555 Richmond St. W. Suite 900, Toronto, ON, M5V 3B1, and you or, if applicable, the company, institution or other legal entity you represent (collectively, “you”, “your”). You and Interaxon 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 Muse Services in compliance with these Terms.
MUSE SERVICES ARE ONLY PROVIDED IN ENGLISH ONLY. DO NOT REGISTER FOR, ACCESS OR USE ANY MUSE SERVICE UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND THIS LANGUAGE.
ACKNOWLEDGMENT OF TERMS OF SERVICE:
By accessing or using a Muse Service you agree to be bound by these Terms. By registering for, accessing or using any Muse 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 MUSE SERVICES, OR ALLOW ANYONE ELSE TO DO SO. If you register for or access or use a Muse Service on behalf of an organization (such as an organisation 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”, “your” 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 Muse Service. Notwithstanding whether we provide any notice of modifications to the Terms, by continuing to access and/or use any Muse 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 Muse 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 Muse 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 http://www.choosemuse.com/contactsupport.
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 Interaxon.
- “Amendment” means an express written amendment to these Terms signed by Interaxon’s authorized signatory in which additional and/or different terms and conditions may apply to you.
- “Authorized User(s)” mean the following users that you authorize to access or use the Muse Service on your behalf: (a) your employees, agents, or independent contractors; or (b) others such as clients, students, or subscribers where the Muse 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 Muse Service by Interaxon 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 Muse Services including: “INTERAXON”, “MUSE”, “BRAIN SENSING”, “THE BRAIN SENSING HEADBAND”, “MEDITATION MADE EASY”, “MUSE MEDITATION”, “TECHNOLOGY ASSISTED MEDITATION”, “TAKE A BREATH”, “PERSONAL MEDITATION ASSISTANT”, “CHOOSEMUSE”, “MPOWERED BY MUSE”, “MUSE DIRECT”, “MUSE CONNECT”, “MEDITATION STUDIO”, “UNTANGLED”, and all related branding elements, the status indicator of the Sensor Device (or similar status indicator), use of “CALM”, “NEUTRAL”, and “ACTIVE” in relation to states of mind/brain signal calm points and/or recoveries.
- “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 Muse Service or our websites, or otherwise can be requested at http://www.choosemuse.com/contactsupport.
- “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.
- “Interaxon Materials” means: (a) all materials that were created by or on behalf of Interaxon including the layout and flow of the Muse Service; and (b) any other materials created under the scope of the Terms. Interaxon 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 Muse Service; (ii) the technical documentation, if any, of or concerning any Muse Service; (iii) any analytics data (other than User Content) generated from the use of any Muse 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.
- “Muse Service(s)” means Interaxon’s services, including additional subscription services through the Muse Sensor Device application, Muse Direct, Muse Connect, Meditation Studio guided meditations, and Untangle podcasts. The Muse Services may be varied from time to time by Interaxon. Subject to the licenses granted to you pursuant to these Terms, the Muse Services include the documentation and materials and access to or use of Interaxon’s Websites and Branding Elements.
- “Sensor Device” means any device or system of devices designed and/or developed by or on behalf of Interaxon, 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 headbands.
- “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 Muse Services including products and services provided by members of Interaxon’s Alliance Program. For clarity, Interaxon’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 Interaxon.
- “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 Muse 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 Interaxon used for the Muse Services.
- RIGHT TO USE MUSE SERVICES
- Evaluation Purposes (If Applicable). If the applicable invoice, subscription or Interaxon 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 Interaxon product description specifies another period during which you may evaluate the Muse 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 Muse Service you are evaluating; (b) access to the Muse Service will be provided “AS IS” and without any warranty; (c) unless otherwise specified in the invoice, subscription or Interaxon 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 Muse 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 Muse Service(s).
- Scope of Use. You may access and use, or authorize your Authorized Users to access and use, the Muse Service only for your and your Authorized Users’ personal and internal business and research purposes. Except to the extent that you are authorized by Interaxon 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 Muse Service to anyone on a standalone basis. You agree to ensure that Authorized Users comply with these Terms and all applicable fees for the Muse Service are paid to Interaxon in relation to the use of the Muse Service by all Authorized Users. We may, by Amendment, change the scope of your use of the Muse 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.choosemuse.com/contactsupport and enter into an appropriate agreement with us. You agree to use the Muse 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 Muse Service at any time, with or without notice to you. Notwithstanding anything to the contrary, unless authorized by an Amendment, the Muse Service may not be accessed by a direct competitor of Interaxon.
- End User License. Our Software is subject to the applicable End User Licence Agreement in effect from time-to-time as located at www.choosemuse.com/legal (or as may otherwise be made available to you through the Muse 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 Muse 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 other professional; (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 at 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 Muse Service. We do not make any commitment that any Muse Service will be available at all times and you agree that you are not eligible for any refunds, credits or other compensation for any down time.
- Updates. From time to time, we may (but are under no obligation to) provide upgrades, patches, enhancements or fixes for the Muse Services to our users generally without additional charge (“Updates”), and such Updates will become part of the Muse Service and subject to these Terms. We may cease supporting old versions or releases of Muse Services at any time in our sole discretion.
- USE OF THE SERVICE
- Unlawful and Restricted Uses. You agree to use the Muse Service only for lawful purposes and that you are responsible for your use of the Muse 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 Muse Service or otherwise grant or transfer rights to any Muse 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 Muse Service or Sensor Devices; (b) modify, adapt, alter, edit, correct, publish, enhance, translate or create derivative works based on any Muse 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 Muse Service, or any associated software, documentation or other materials or on or within the Sensor Device;
- access the Muse Service in order to: (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of any Muse Service, or (c) copy any ideas, features, functions or graphics of any Muse Service;
- interfere with or disrupt the integrity or performance of any Muse Service;
- attempt to gain unauthorized access to any Muse Service or its related systems or networks;
- use any Muse Service in any manner that interferes with its normal operation or with any other user’s use of the Muse 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;
- viii.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 Muse Service or the content or the data contained therein;
- attempt to gain unauthorized access to any Muse Service or its related systems or networks;
- xiii.access, tamper with, or use non-public areas of the Websites, our computer systems, or the technical delivery systems of its providers;
- xiv.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 Muse Service, to send altered, deceptive or false source-identifying information;
- xvi.interfere with, or disrupt, the access of any user, host or network including sending a virus, overloading, flooding, spamming, mail-bombing any Muse Service, or otherwise creating an undue burden on any Muse Service; or
- xvii.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 Interaxon 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 Interaxon is prohibited. Any permitted links to the Websites must comply with all applicable laws, rule and regulations.
- Local Law. Interaxon makes no representation that materials contained, described or offered via any Muse 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 Muse Service use the Muse 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 Muse Service from any territory where it is illegal, and that you and your users, and not Interaxon, are responsible for compliance with applicable law.
- Third-Party Applications. During use of the Muse 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. Interaxon and its licensors will have no liability, obligation or responsibility in relation to such activity. Interaxon 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 Interaxon or its licensors be responsible for any content, products, or other materials on or available from third parties (even if they are acquired through Interaxon).
- Compensation. You will pay 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 Muse Service. You will be responsible for all taxes associated with the Muse Service other than taxes based on our net income. Your access to and/or use of the Muse Service may be terminated or cancelled 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 Muse 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 Muse 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 Muse 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 Interaxon’s ordering and reporting requirements in effect from time-to-time, which may include providing Interaxon with written reports on the use of the Muse Services by you and your Authorized Users in the format, for the period and within the timelines as specified by Interaxon. To permit Interaxon 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 Muse Services by you and your Authorized Users; (b) any use of Interaxon’s trademarks and other intellectual property; and (c) compliance with the obligations of this Agreement. To assure such compliance, Interaxon 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 Interaxon’s reasonable costs of conducting the audit. This section 5.4 does not apply to you if you are using the Muse 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 Interaxon 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 Muse Service, Interaxon 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 Interaxon 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 Muse Service may not be owned by Interaxon, and are the property of their respective trademark holders. These trademark holders are not affiliated with, nor do they sponsor or endorse, Interaxon, the Muse Service and/or Interaxon’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 Muse 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 Interaxon’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 Interaxon 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 Interaxon’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 Interaxon 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 Interaxon. 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. Interaxon’s Confidential Information includes: (a) any test results relating to the Muse Services; (b) Interaxon software’s source code; (c) technical specifications related to the Muse Services; (d) any non-publicly available pricing and Interaxon 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 Muse Service and/or Sensor Devices.
- Publicity; Credit. Except where you are merely evaluating Interaxon’s software or products, Interaxon will have the ability to issue a press release in connection with the Terms and use your logo on the Interaxon website and other marketing materials.
7.4 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 Muse Service) or access using the Muse 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 Muse Service) in connection with the Muse Service, and you warrant that you possess all rights necessary to provide and share such User Content. Interaxon reserves the right to remove from any Muse Service any User Content that Interaxon, in its sole discretion, believes to be objectionable. You understand that, by providing User Content in connection with the Muse Service, you hereby grant Interaxon 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 Interaxon 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 Interaxon such license; and (b) you are responsible for User Content that may be lost or unrecoverable through your use of the Muse 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 volume of data and time) on the User Content and associated data stored or retained by or on behalf of Interaxon.
- WARRANTIES; LIMITATION OF LIABILITY; INDEMNITY
- Warranty and Disclaimer. YOUR USE OF THE MUSE SERVICE IS AT YOUR SOLE RISK. THE MUSE 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, “INTERAXON 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. INTERAXON PARTIES MAKE NO WARRANTY THAT: (I) ANY MUSE SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE MUSE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE MUSE 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 MUSE SERVICE, WILL MEET YOUR EXPECTATIONS OR NEEDS; (V) ANY DATA STORED OR RETAINED BY INTERAXON WILL BE FREE FROM LOSS OR CORRUPTION OR AVAILABLE INDEFINITELY; OR (VI) ANY ERRORS WILL BE CORRECTED. INTERAXON DISCLAIMS ANY LIABILITY FOR ANY CONSEQUENCES DUE TO USE, MISUSE OR INTERPRETATION OF INFORMATION CONTAINED, OR NOT CONTAINED, IN ANY MUSE SERVICE. SENSOR DEVICES AND MUSE SERVICES MAY NOT FUNCTION AS INTENDED OR EXPECTED. IF YOU CHOOSE TO USE THE MUSE SERVICE AND SENSOR DEVICES, YOU ASSUME ALL RISK OF HARM OR LOSS ASSOCIATED WITH YOUR USE THEREOF.
- Exclusion of Damages. INTERAXON 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 MUSE 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 MUSE 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 INTERAXON 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 MUSE 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 INTERAXON 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 MUSE SERVICE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. NOTHING HEREIN IS INTENDED TO CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY INTERAXON 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 INTERAXON 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 INTERAXON FOR LICENSES GRANTED BY INTERAXON 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. INTERAXON PARTIES WILL NOT BE LIABLE FOR: (i) CLAIMS ASSOCIATED WITH MODIFICATIONS OR ADAPTATIONS PERFORMED BY ANYONE OTHER THAN INTERAXON; OR (ii) USE OF THE MUSE SERVICE WITH PRODUCTS OR SERVICES THAT ARE NOT PROPRIETARY TO INTERAXON (EVEN IF SUCH PRODUCTS OR SERVICES DISPLAY INTERAXON BRANDING ELEMENTS).
- Indemnification. You (on behalf of the organisation you represent (if applicable) and users of the Muse Service and the Sensor Devices) agree to indemnify, defend and hold harmless Interaxon 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 Muse 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 Interaxon 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 Interaxon 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 Muse 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 Interaxon 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) 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:
(a) in accordance with the Payment Processor Terms;
(b) 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;
(c) 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
(d) 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 Muse Service will immediately terminate and/or cancel, you will immediately cease all use of the Muse 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 Muse Service were acquired as a “bundle”, upon termination or expiration of these Terms, notwithstanding Interaxon’s Limited Warranty for the Sensor Device, Interaxon 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 5pm Toronto, Ontario 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 Muse Service, or by posting communications on http://www.choosemuse.com. 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: Interaxon Inc. Attention Legal Department, Suite 900, 555 Richmond Street West, Toronto, Ontario, Canada M5V 3B1. 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, it 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. Interaxon reserves the right to change, amend or modify the terms of these Terms, or the availability of any Muse 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 Muse Service. Your continued use of the Muse 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. Interaxon may impose certain limitations on the use of the Muse 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 Muse Service only for purposes as permitted by the Terms and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. Interaxon reserves the right to modify or impose any limitations on the use of the Muse 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 Muse 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:
(i) 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;
(ii) 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
(iii) 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 Interaxon concerning the Muse Service, Sensor Devices or any other intellectual property of Interaxon. You hereby grant to Interaxon 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. Interaxon 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 Interaxon. You agree to execute such further documents and instruments as may be required to confirm such ownership by Interaxon. 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 Muse Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Interaxon is not responsible for any delays, deliver failures, or other damage resulting from such problems. In addition, neither you nor Interaxon 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. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais. 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.
- Purpose and Website Services
- Acceptance and Modification of Terms
- Void Where Prohibited
The Company operates its main Website from Ontario, Canada. Although the Website is accessible worldwide, not all features, products and services discussed, referenced, provided or offered through or on the Website are available to all persons in all geographic locations, or appropriate for use in all jurisdictions. Company reserves the right to limit in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on this Website is void where prohibited by law. If you choose to access the Website from anywhere or any feature, product or service which is prohibited by law, you do so on your own initiative and you are solely responsible for complying with applicable laws.
- Accounts and Passwords
You agree that you will: (a) maintain and update such Registration Data as necessary in order to keep such information current, complete, and accurate; (b) maintain the confidentiality of any passwords or other account identifiers which you choose or that are assigned to you as a result of any registration or account creation with the Website: and (c) be responsible for all activities that occur under such password or account. Further, you agree to immediately notify Company of any unauthorized use of your password or account in the event that the confidentiality of your password or your account is compromised. Failure to comply with this paragraph may result in immediate termination of your account. Except to the extent this limitation is prohibited by applicable law (including Québec), Company shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this section.
- Suspension and Termination of Access
All text, data, content, audio files, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, layout, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on or available through the Website is owned, controlled or licensed by or to Company, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.
Except as expressly provided herein, no part of the Website and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without Company’s express prior written consent.
If you make any information, data or content available to Company on or through the Website, including by contacting us, or providing comments or ideas about the Services or the Website (“User Content”), you are deemed to grant Company a non-exclusive, transferable, sub-licensable, irrevocable, royalty-free, perpetual, worldwide license to store, use, copy, reproduce, modify, adapt, edit, translate, publish, perform and display any such User Content that you make available on, through, or in connection with the Website without any payment or restriction. You are solely responsible and liable for any User Content you make available on or through the Website or that is made available using your Website account. If you make User Content available, you represent that you have the right to do so.
- Use Restrictions
- Personal Information
- Subscription Fees and Charges
- Website and Services Provided “AS IS”
YOU UNDERSTAND AND AGREE THAT THE WEBSITE, THE SERVICES, ANY COMPANY CONTENT AND OTHER INFORMATION, DATA AND MATERIALS AVAILABLE ON THE WEBSITE OR PROVIDED AS PART OF THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR HEREIN AND PERMITTED UNDER APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW, FROM A COURSE OF DEALING OR USAGE OF TRADE, AND INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS, ANY CONDITION OR WARRANTY OF MERCHANTABILITY, TITLE OR NON-INFRINGEMENT OF THIRD PARTIES RIGHTS AND ANY CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
COMPANY DOES NOT OFFER ADVICE OR RECOMMENDATIONS CONCERNING INFORMATION OR DATA CONTAINED IN ANY SERVICES OR COMPANY CONTENT AND ANY ACTIONS TAKEN, OR FAILURES TO ACT, IN RELIANCE ON ANY COMPANY CONTENT (OR OTHERWISE ON THE SERVICES) BY YOU OR ANY OTHER PERSON IS YOUR SOLE RESPONSIBILITY AND LIABILITY. COMPANY SPECIFICALLY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE WEBSITE OR ANY OF THE SERVICES (INCLUDING THE PROVISION OF ANY COMPANY CONTENT) WILL BE ACCURATE, RELIABLE, COMPATIBLE WITH YOUR COMPUTER, OR COMPLETE OR WILL BE PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR THAT ANY ERRORS CAN OR WILL BE CORRECTED OR THAT ANY SERVICES, COMPANY CONTENT, DATA OR THE RESULTS DERIVED THEREFROM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR THAT THE WEBSITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL ELEMENTS.
YOU ACKNOWLEDGE THAT COMPANY DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES OFFERED BY THIRD PARTIES ON OR THROUGH THE WEBSITE. EXCEPT AS OTHERWISE AGREED IN WRITING, COMPANY AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THE WEBSITE.
IF YOU ARE DISSATISFIED WITH THE WEBSITE, THE SERVICES OR WITH ANY OF THE TERMS, CONDITIONS, GUIDELINES, PRACTICES OR POLICIES OF COMPANY IN OPERATING THE WEBSITE AND IN PROVIDING THE SERVICES YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USING THE WEBSITE AND SERVICES.
- Limitation of Liability
CONSUMER PROTECTION LAWS IN YOUR JURISDICTION (E.G. IN QUÉBEC) MAY PROHIBIT ANY STIPULATION THAT WOULD RELIEVE A MERCHANT FROM THE CONSEQUENCES OF HIS OR HER OWN ACTION. IF YOU ARE A CONSUMER IN SUCH A JURISDICTION, THIS SECTION 14 DOES NOT APPLY TO THE EXTENT THAT IT WOULD RELIEVE THE COMPANY OR ITS REPRESENTATIVE(S) OF LIABILITY FOR ANY ACTION OF THE COMPANY.
UNDER NO CIRCUMSTANCES SHALL COMPANY, BE LIABLE TO YOU, OR TO ANY OTHER PARTY, FOR ANY LOSSES, COSTS OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER THAT ARE SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF (OR THE INABILITY TO USE) THE WEBSITE, SERVICES, OR ANY COMPANY CONTENT OR THIRD PARTY CONTENT (REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, EQUITY, STRICT LIABILITY, BY STATUTE OR OTHERWISE AND REGARDLESS OF THE OCCURRENCE OF A FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE) THAT EXCEEDS, IN THE AGGREGATE, ANY AMOUNTS THAT YOU HAVE PAID COMPANY IN RESPECT OF THE SERVICES IN THE THIRTY (30) DAY PERIOD THAT IMMEDIATELY PRECEEDED THE DATE OF YOUR CLAIM.
IN NO EVENT WHATSOEVER SHALL ANY OF THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS AND THIRD-PARTY CONTRACTORS, SUPPLIERS AND LICENSORS (COLLECTIVELY THE “COMPANY PARTIES”) BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE WHATSOEVER THAT ARE SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF WEBSITE OR THE PROVISION OF THE SERVICES (INCLUDING IN ANY CONNECTION WITH THE TRANSMISSION OR DOWNLOADING OR STORAGE OF ANY DATA OR SUBMISSIONS TO OR FROM THE WEBSITE OR THE USE OF, OR RELIANCE ON, ANY COMPANY CONTENT OR OTHER INFORMATION OR DATA CONTAINED ON OR PROVIDED THROUGH THE WEBSITE OR SERVICES, OR LOSS OF OR DAMAGE TO FILES OR DATA OR ANY COSTS OF RECOVERING OR REPRODUCING ANY FILES OR DATA OR LOSS OF USE OR LACK OF AVAILABILITY OF SERVICES OR ANY DIRECT OR INDIRECT BUSINESS INTERRUPTION OR DIRECT OR INDIRECT LOSS OF REVENUE OR PROFIT OR ANY OTHER DIRECT OR INDIRECT ECONOMIC LOSS WHATSOEVER) HOWEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION AND WHETHER OR NOT FORESEEABLE, EVEN IF THE COMPANY PARTIES OR ANY OF THEM HAS BEEN INFORMED IN ADVANCE OR OUGHT REASONABLY TO HAVE KNOWN OF THE POTENTIAL FOR SUCH DAMAGES.
THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE AND USE OF THE WEBSITE, SERVICES AND ANY PROVIDED SUPPORT IS ASSUMED BY YOU.
Company shall not be liable for any failure to perform its obligations hereunder where the failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation.
All product, brand and company names, logos and registered or unregistered trade-marks, displayed on the Website or used in connection with the Services or products including, without limitation: “INTERAXON”, “MUSE”, “BRAIN SENSING”, “THE BRAIN SENSING HEADBAND”, “MEDITATION MADE EASY”, “MUSE MEDITATION”, “TECHNOLOGY ASSISTED MEDITATION”, “TAKE A BREATH”, “PERSONAL MEDITATION ASSISTANT”, “CHOOSEMUSE”, “MPOWERED BY MUSE”, “MUSE DIRECT” and all related branding elements, are the trade-marks of Company (or its suppliers, partner businesses or third party licensors, as applicable). Any use of any of the marks appearing on the Website or in connection with the Services or Company products without the express written consent of Company or the owner of the mark, as appropriate, is strictly prohibited.
CONSUMER PROTECTION LAWS IN QUÉBEC PROHIBIT ANY STIPULATION OF A LAW OTHER THAN THE LAWS OF QUÉBEC AND THE FEDERAL LAWS OF CANADA. IF YOU ARE A QUÉBEC CONSUMER, THE FOLLOWING PARAGRAPH DOES NOT APPLY.
- Entire Agreement
- Electronic Communications
For contractual purposes, you consent to receive communications electronically from us and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights related to electronic communications.
- Conformance with Law
- Contact / Notices
© 2019 Interaxon Inc. All rights reserved.
Last updated: April 1, 2019
Limited Warranty For The Muse Headband
Dead on Arrival Products. If you are the original purchaser of a Muse headband from Interaxon or an authorised Interaxon retailer and the Muse headband is Dead on Arrival (namely, when you first attempted to use the product after opening the box, it demonstrated hardware failure, preventing even basic operability), the Muse headband may be returned by you to us within thirty (30) days of your original purchase.
If we verify that you were the original purchaser of the product and the product was Dead on Arrival, we will offer you the following options at our expense:
(a) ship you a replacement product; or
(b) service the product, in which case you will not have the right of replacement.
To be eligible to return any Dead on Arrival product to us, you must follow the warranty claim process set out below.
Manufacturer Defects. Your Muse headband is warranted by Interaxon Inc. and/or its affiliates (“Interaxon”) to be free of defects in materials or workmanship, under normal use, for a period of one (1) year from the date of your original purchase of the new Muse headband except to the extent a longer period is required by applicable law (the “Warranty Period”). This limited warranty excludes damage resulting from: (i) improper care or handling (including, without limitation, user abuse or proximity to moisture or heat), (ii) accidents, (iii) modification, (iv) unauthorized repairs, (v) use of the Muse headband with accessories, products, services or software applications not expressly approved or provided by Interaxon, (vi) use of the Muse headband in a manner contrary to, or not in accordance with, the documentation, guidelines or instructions provided by Interaxon or (vi) other causes which are not defects in materials or workmanship of the Muse headband.
This warranty does not cover: (a) used or refurbished products; (b) products provided as a “sample”, “AS IS” or “complimentary”; (c) any third party products Interaxon sells; or (d) any accessories for the Muse headband.
The warranty only extends to new Muse headbands purchased by you from Interaxon or an authorised Interaxon retailer.
If there is a covered defect with the Muse headband, Interaxon will, at its discretion, repair (with new or refurbished parts) or replace (with new or refurbished product) your Muse headband free of charge, or will issue you with a refund. The Warranty Period for the repaired or replaced Muse headband will expire upon the expiration of the original Warranty Period (except to the extent Interaxon is expressly required by law to provide you a longer Warranty Period for the repaired or replaced Muse headband).
This warranty is a hardware only warranty that is limited to the Muse headband and does not cover any software made available, shipped, pre-loaded, or distributed by Interaxon or any third party, even if the software is packaged or sold with the product, or available for the product at a later time. Software license agreements apply to your use of software associated with the Muse headband. The software license for Interaxon proprietary software to be used with the Muse headband is described in the applicable Interaxon end user license agreement.
To be eligible to return any defective Muse headband to us, you must follow the warranty claim process set out below.
Warranty Claim Process. To be eligible to return any Muse headband to us, you must have a Dead on Arrival product or a Muse headband with a manufacturer’s defect and you must:
(1) prior to shipping the Muse headband to us, contact us through http://www.choosemuse.com/contactsupport and obtain a Return Material Authorisation (RMA) number, shipping address and other instructions. The RMA number must be included with your Muse headband return
(2) provide us valid proof of your original purchase
(3) package the Muse headband in the original, unmarked packaging together with all accessories, manuals, and documentation (unless otherwise requested by Interaxon)
(4) include a description of the reason for the Muse headband return.
If we determine that there was no valid reason for returning the Muse headband to us (i.e. it was not Dead on Arrival or did not have a manufacturer’s defect), we may, at our discretion, refuse to accept the Muse headband or return the Muse headband to you and charge you a USD$200 handling fee.
Limitation of Liability. The Muse headband is provided “AS IS AND WITH ALL FAULTS”, and Interaxon hereby disclaims all other warranties, conditions and the provision of or failure to provide support or other services, information, software, and related content through the Muse headband or otherwise arising out of the use of the Muse headband. This limited warranty is in place of all other express and implied warranties, conditions, representations, or guarantees of any kind (including, without limitation, implied warranties of merchantability, satisfactory quality and/or fitness for a particular purpose) which are all hereby excluded and shall have no effect. In no event shall Interaxon or anyone acting on behalf of or with Interaxon (including, without limitation, in relation to the manufacture, supply, distribution, sale, repair or return of the product) be liable for any direct, indirect, incidental, special or consequential loss or damages whatsoever (including, without limitation, damages for loss of profits, loss of use of the products or functionality, business interruption, loss or corruption of information (including data), or other pecuniary loss) arising out of the use or inability to use the Muse headband even if Interaxon or anyone acting on behalf of Interaxon has been advised of the possibility of such damages. This limitation is intended to apply and does apply without regard to whether such damages are claimed, asserted or brought in an action or claim in tort, contract, on the warranty, or under any other legal theory. The liability of Interaxon (and any one acting on behalf of or with Interaxon) to you for loss or damage arising under this warranty shall not exceed in aggregate the net purchase price you paid for the product or the cost of replacing the Muse headband, whichever is greater. The foregoing shall not in any way restrict any liability in relation to death or bodily injury or statutory liability for intentional and gross negligent acts or omissions. No other person or company is authorized to change this warranty.
Some states and countries do not allow limitation on how long an implied warranty lasts, or exclusion of all or certain types of damages, so the above limitations may not apply to you. This warranty gives you specific legal rights, and you may also have other additional statutory rights, which vary from state to state or within a particular country. The foregoing is without prejudice to other legal rights that may arise under applicable mandatory legislation. This warranty extends only to new Muse headband purchased by you from Interaxon or an authorized Interaxon retailer.
Your Rights Under Australian Consumer Laws. If you are a consumer you may have statutory rights under the Australian Consumer Law that are in addition to those set out in this limited warranty (“Consumer Rights“). This limited warranty sets out certain situations when Interaxon will, or will not, provide a remedy for a Muse headband. This limited warranty does not limit or exclude any of your Consumer Rights relating to the Muse headband.
Under your Consumer Rights, you are entitled to: (a) a replacement or refund for Muse headband with a major failure, and compensation for any other reasonably foreseeable loss or damage; and (b) have the Muse headband repaired or replaced if the Muse headband fails to be of acceptable quality and the failure does not amount to a major failure; and (c) such remedies are in addition to your rights under this limited warranty.
If you are a consumer under the Australian Consumer Law, you may return a defective Muse headband to: (a) the authorized Interaxon retailer from whom you purchased the Muse headband; or (b) Interaxon directly by contacting Interaxon pursuant to the warranty claims process set out above, or by phoning +1 416 598 8989.
Governing Law. Unless stated otherwise below, this limited warranty will be governed by, and construed in accordance with, the laws of the Province of Ontario, Canada and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Ontario in Toronto, Ontario.
i. If you are domiciled in a country located in Europe, Middle-East or Africa, this limited warranty will be governed and construed in accordance with the laws of England and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of London, England.
ii. If you are domiciled in a country located in Asia-Pacific, this limited warranty will be governed and construed in accordance with the laws of Singapore and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Singapore.
iii. If you are domiciled in the United States of America, this limited warranty will be governed and construed in accordance with the laws of New York, USA and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of New York city, New York, USA.
The United Nations Convention on Contracts of the International Sale of Goods is expressly excluded.
Language. If this Warranty is 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.
Miscellaneous. If there is any conflict between this limited warranty and any other warranty provided to you including, without limitation, in the packaging of the product, the provisions of this warranty shall be applied by Interaxon to the extent of such conflict. If any term, provision or sub-section of this warranty is held to be void, illegal or unenforceable, the validity or enforceability of the remainder of such term, provision or subsection and this warranty will not be affected.
Interaxon’s Commitment to Privacy
At Interaxon, our vision is to empower personal transformation to improve lives and change the world. Our goal is to be industry leaders in the protection of users’ privacy.
We are committed to the following privacy principles:
Your personally identifiable information belongs to you, and at all times you retain complete ownership of your personally identifiable information collected by us during your use of Interaxon products and services.
When we store your personally identifiable information, we take security measures that meet or exceed industry standards.
If this policy changes in the future, we will post an updated version on our website at www.choosemuse.com and/or www.interaxon.ca. We recommend that you check these websites periodically in order to review our current policy. You can tell if this policy has changed by checking the effective date that appears at the top of the policy. Depending on the circumstances, we may also decide to send you a notice in other ways in our discretion, such as via email or other contact information you have provided that the policy was changed. If you continue to use our Products after the policy changed or notice of the change has been given, you will be deemed to have accepted such changes.
INFORMATION WE COLLECT
WHEN YOU CREATE AN ACCOUNT WITH US
To use our Products, you may be asked to download our mobile or desktop application, and you may need to create an account with us. In order to create an account, you may need to provide us with information such as your login credentials (e.g. your email address, name and/or password), geographic region, handedness, gender, and year of birth.
WHEN YOU USE OUR PRODUCTS
When you use our Products, we may collect technical properties of the hardware and software used in conjunction with our Products. For example, when you are accessing certain web pages and/or features of our Products, we may collect the type and model of hardware and/or web browser you are using, how long you use our Products, and the operating system version you are using in conjunction with our Products.
DATA SYNCED WITH THE CLOUD
Data about your activity is automatically transferred from your device to our cloud. This data is stored and used to provide the Products. Each time a sync occurs, we also log data about the transmission. Some examples of the log data are the sync time and date, your device’s battery level, and the Internet Protocol (IP) address used when syncing. Such logged data may include your access date and time, duration of access, the specific web and/or application service used.
WHEN YOU MAKE PURCHASES FROM US
While payments made through or for our Products are processed through a third party payment processor, information to administer, manage, and fulfill the purchases you make may be collected by us or on our behalf. Such information may include your name, email address, account information, what is ordered, the date and time of the order, the quantity and price of the order, whether payment was made, method of payment, purchase history, and if you re-ordered.
WHEN YOU CONTACT US FOR HELP
Your customer service telephone calls, emails and other communications with us and our service providers, if any, may be recorded, logged, and/or monitored for quality assurance, and/or product and service enhancement purposes such as to assist in addressing your inquiries, troubleshooting, training and analytics to identify trends and make improvements to our products and services. As part of the recording and logging of the calls and emails, we may collect information like the identity of the caller or sender of email, the date and time of the call or email, and the subject and resolution of the issue.
WHEN YOU ACTIVATE LOCATION FEATURES
When you use our Products, we may collect your IP address. Our application may ask you to enable location sharing in order to provide you with location features, and if you enable it we may store your location on our cloud. If enabled, you may deactivate these location features at any time and we will stop collecting this type of information. Such deactivation may restrict your use of the Products on certain platforms due to limitations applicable to those platforms. For example, access to Bluetooth low energy on Android requires that location features be active.
HOW WE USE YOUR INFORMATION
We use your information to help you make the most of your experience using our Products, and to improve our Products and protect Interaxon. For example, we may use your information:
- to understand and meet your needs and preferences, and/or to provide you with our Products, for example:
- for purposes related to the billing, activation, provision, maintenance, support, troubleshooting, resolving of disputes, deactivation, upgrade, or update of Products;
- to process and fulfill your order, send you emails to confirm your order status and shipment, send you Products you order, and allow you to pay for Products you order;
- to check if Products are technically functioning as intended and to help identify and troubleshoot issues;
- to fulfill or enforce any agreements or notices we provide (“Notice(s)”);
- to manage or respond to your inquiries;
- to develop new and enhance existing Products including to communicate with you about them using various means, for example to make available or send to you upgrades or updates, or notices of upgrades or updates of Products;
- to inform you of our product and service offerings including new features, functionality, and/or learning opportunities;
- to manage and develop our business and operations, for example;
- to detect, monitor, investigate, mitigate or attempt to prevent fraud and technical or security issues or to protect our property;
- to allow for business continuity and disaster recovery operations;
- to enforce our legal rights; and
- for statistical purposes;
- to meet legal and regulatory requirements and to respond to what we consider emergency situations, for example:
- to respond to court orders, warrants or other lawful requests or legal processes;
- to provide emergency assistance in situations that may threaten the life or physical safety of you or others;
- to protect our legal rights; or
- for any other purposes for which you have consented, such as those that may be set out in Notices, and other purposes as permitted or required by any applicable law.
We will retain your PII as long as necessary for the fulfillment of the identified purposes or as otherwise necessary to comply with applicable laws.
VOLUNTARY RESEARCH PROGRAMS
Developing new algorithms for the classification of data requires intense research. The most useful tool in advancing science is data from users like you.
While using the Products, we may, from time to time, ask you to participate in research programs aimed at improving our understanding of the brain, developing new algorithms, improving our ability to deliver products and services, and/or advancing scientific research.
Participation in such programs is entirely voluntary, and the choice to participate will always be presented to you clearly. We will inform you, when presenting the choice, what types of data will be collected as part of the research program and what additional rights we may have with respect to the use of such data.
You can choose at any time to withdraw your consent to participate in any voluntary research program. Should you withdraw your consent, your non-aggregated PII will not be used by us in any future research or reports.
INFORMATION THAT COULD IDENTIFY YOU
We will only share your PII data with the following parties and/or under the following circumstances:
within Interaxon and/or with our service providers such as a cloud service provider;
with our financial, insurance, legal, accounting or other advisors that provide professional services to us or with our investors;
if you have consented or if you direct us to share it with third parties. For example, you might direct us to share PII with a professional as part of a wellness program;
if you are participating in a corporate program, any and all information about your use of the Products with your employer or its agents, if your employer has confirmed that you have authorized such disclosure;
as necessary to complete any transactions while using our Products;
respond to a subpoena, order, legal process, or governmental request;
protect, establish or exercise our legal rights or defend against legal claims;
investigate, detect, suppress, prevent or take action regarding illegal or prohibited activities, suspected fraud, situations involving potential threats to the reputation or physical safety of anyone;
as otherwise required by law;
if we are to be sold, merged, or amalgamated or substantially all of its assets are to be sold or disposed of, your personal information may be transferred to a potential purchaser if, and to the extent necessary, it is required for the purposes of deciding whether to proceed with the proposed transaction and completing it. If such a sale, merger, acquisition, or disposal is completed, we will use reasonable efforts to direct the transferee to use personal information you have provided to us in a manner that is consistent with this Policy. Following such a sale or transfer, you may contact the entity to which we transferred your personal information with any inquiries concerning the processing of that information; or
if you have authorized us to share it in accordance with any voluntary research program terms and/or and terms and conditions you have agreed to or a Notice.
INFORMATION THAT DOES NOT IDENTIFY YOU (DE-IDENTIFIED DATA)
Some of the information shared by you through our Products may not by itself identify you to us or be personally identifiable and therefore may not be considered PII. If we combine any such non-personally identifiable information with other PII available to us, the combined information will be treated as PII in accordance with this policy.
You own all your PII and have control over how you share it in accordance with this policy. However, notwithstanding anything to the contrary contained in this policy, we may remove personal identifiers from your information and maintain and use it in a de-identified form that may be combined with other information to generate aggregated information. Such de-identified and/or aggregated information will be deemed to be owned by us and we shall have unrestricted title, rights, and interest to the de-identified and/or aggregated information which may include, without limitation, the right to use, distribute, transmit, transfer, license, trade, rent, share, assign, and sell the de-identified and/or aggregated information.
OTHER WAYS YOU MIGHT SHARE YOUR INFORMATION
We may provide you with ways for you to share PII with other Product users. When you interact with others, you may be displaying your PII based upon the visibility settings in your user account privacy settings. Always check your user account privacy settings to understand what PII will be visible to others.
CONTESTS AND GIVEAWAYS
HOW TO DEACTIVATE YOUR USER ACCOUNT
You can deactivate your user account by contacting us at email@example.com. When you do, your PII will be removed from the Products. Backup copies of this data will be removed from our cloud based upon an automated schedule, which means it may persist in our archive for a short period. Interaxon may continue to use your de-identified data and aggregate information.
INTERAXON’S POLICIES FOR CHILDREN
Our Products are not directed at persons under the age of 13. We do not knowingly collect any PII from children under 13. If we become aware that we have unknowingly collected PII from a child under the age of 13, we will make commercially reasonable efforts to delete such PII from our records. If you are aware of a user under the age of 13 using our Products, please contact us at firstname.lastname@example.org.
When you visit our website, we collect certain information by automated means, such as through server log files, cookies (text files sent to and stored on your device when you access the website), web beacons (also known as clear GIFs and pixel tags, which may be used to transmit information back to the website), and embedded scripts (programming code that is designed to collect information about your interactions with the website, such as the links you click on, and which is active only when you are accessing the website).
The information we collect in this manner may include details about the computer, mobile phone, or other device used to access the website (such as browser type, operating system, and IP address), referring URLs and information on actions taken or interaction with our digital assets.
We may use third party web analytics services to help us analyze how visitors use the website. We may permit these third parties to operate directly on the website, use their own technology (such as cookies or web beacons), and collect information about you on our behalf.
The information we collect in this manner is collected to enhance your user experience. For example, this information allows us to pre-fill form fields as well as provide you with contextual recommendations while using the website.
When you visit our website, we may allow some third parties (such as advertising networks and data analytics companies) to collect information about your online activities over time and across different websites. Your browser settings may allow you to automatically transmit a “Do Not Track” signal to websites and online services you visit. However, there is no consensus among industry participants as to what “Do Not Track” means in this context. Like many websites and online services, we currently do not alter our practices when we receive a “Do Not Track” signal from a visitor’s browser.
In some instances, we may also combine information we receive about you from third parties with information we collect through the website.
HOW DOES INTERAXON KEEP YOUR INFORMATION SAFE?
We aim to provide you with a safe experience. We have in place certain physical, technical, and administrative safeguards designed to appropriately protect the security and privacy of your PII against loss, theft, and unauthorized access, disclosure, copying, use, or modification. Please note, however, that we cannot guarantee that the measures we maintain will guarantee the security of the information.
We limit access to your PII within Interaxon to individuals with a need to know.
Your PII may be collected, used, processed, transferred, and retained in multiple countries including Canada, the United States, and the European Economic Area which may be outside the region in which you are situated and may have different privacy or data protection legislation, and may therefore be subject to the laws of these countries. If you are a resident of the European Economic Area or a country which restricts data transfers outside of that jurisdiction or region without your consent, by using our Products, you consent to your PII being transferred outside of the European Economic Area or your country for processing or storage by or on behalf of us.
YOUR DECISIONS ABOUT YOUR INFORMATION
At any time you can contact us to: stop receiving emails from us; review the PII held by us in connection with your account; deactivate your account, which will stop any use and disclosure of your PII; and amend your PII, by writing to us at email@example.com. You can unsubscribe from receiving promotional emails from us by simply clicking the “unsubscribe” link provided at the bottom of promotional emails from us. Opting-out of these emails will not end transmission of important service-related emails that are necessary to your account maintenance.
If you contact us to do any of the things listed above, we may require you to provide sufficient PII to allow us to identify you and tell you about the existence, use, and disclosure of your PII and this PII will only be used for this purpose. If you contact us about your PII, we will respond to your request within a reasonable time and at minimal cost or no cost to you in accordance with applicable laws.
CALIFORNIA RESIDENTS – YOUR CALIFORNIA PRIVACY RIGHTS
California Civil Code Section § 1798.83 permits users who are California residents to request certain information, including the categories of personal information disclosed to third parties for their marketing purposes and the names and addresses of those third parties, regarding our disclosure of personal information to third parties for their direct marketing purposes, if any. If you are a California resident and you have questions about our practices with respect to sharing information with third parties and affiliates for their direct marketing purposes, please send your request by email to firstname.lastname@example.org or write to us at Suite 900, 555 Richmond Street West, Toronto, Ontario M5V 3B1. You must put the statement “Your California Privacy Rights” in the subject field of your email or include it in your writing if you choose to write to us at the designated mailing address. You must include your name, street address, city, state, and ZIP code. We are not responsible for notices that are not labeled or sent properly, or do not have complete information.
QUESTIONS OR COMMENTS
(a) Do not dispose of Muse2 into fire or hot oven, or mechanically crush or cut the Muse2 or the battery contained whithin as this may result in an explosion.
(b) Do not expose the Muse2 to an extremely high temperature environment as this may result in an explosion or the leaking of flammable liquid or gas.
(c) Do not expose the Muse2 to extremely low air pressure as that may result in an explosion or the leakage of flammable liquid or gas.
30 Day Return Policy
(a) Subject to you complying with Interaxon’s return procedures, if purchased directly from Interaxon , any undamaged Muse device may be returned to Interaxon provided you have used it for no more than twenty (20) days from delivery and Interaxon receives it within thirty (30) days from delivery. To return the Muse device, you must contact Interaxon via www.choosemuse.com/contactsupport to obtain a Return Material Authorization (RMA) number, shipping address, and instructions. You must: (i) ensure that the Muse device is not damaged, (ii) comply with the requirements of this Policy, (iii) provide proof of purchase, (iv) package the Muse headband in the original, unmarked packaging including, accessories, manuals, and documentation, (v) include the RMA number on and in the packaging, and (iv) prepay all shipping charges. Shipping fees, handling fees, and customs duties are at your expense and will not be refunded to you. Interaxon reserves the right to refuse or return headbands not sent in compliance with this Policy and charge you processing, shipping and handling charges. For Smith Eyewear please refer to www.smithoptics.com for warranty and support.
(b) Except for the return rights set out set out in this Section a., all sales are final and you have no right to return products unless there is a defect in the Muse headband that is covered under Interaxon’s Limited Warranty and the Muse headband is returned to Interaxon in compliance with Interaxon RMA procedures.