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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.
LICENSE GRANT AND RESTRICTIONS.
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.
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.
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.