Necomimi Terms and Conditions
NEUROSKY NECOMIMI® HEADSET
TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) govern the purchase of the Necomimi® headsets and ears (the “Products”) by the identified retailer (“Retailer”) from NeuroSky, Inc. (“NeuroSky”).
- Minimum Advertised Pricing Policy. Retailer shall comply with the Minimum Advertised Pricing Policy set forth at http://store.neurosky.com/pages/map. NeuroSky may modify or discontinue such policy at any time without notice in its sole discretion.
- Non-Deceptive Practices. Retailer shall avoid any deceptive or unethical practices or advertising that is or might be detrimental to NeuroSky or the Products. Retailer will make no false or misleading representations with regard to NeuroSky or the Products.
- Order Process. All orders by Retailer to NeuroSky for Products shall be made pursuant to a firm, non-cancelable, written purchase order (“Purchase Order”) with NeuroSky’s product number(s) describing the Products that Retailer desires to purchase from NeuroSky, the quantity and Retailer’s desired delivery date. Purchase orders shall not be binding upon NeuroSky until confirmed by NeuroSky. All orders confirmed by NeuroSky are firm orders and cannot be changed, cancelled, or in any other way altered. Acceptance of Purchase Orders is in NeuroSky’s sole discretion. In addition, NeuroSky may cancel Purchase Orders after acceptance.
- No Change in Terms. Unless otherwise agreed in writing and signed by both parties, the Terms shall govern each order for Products by Retailer. Any term or condition incorporated in Retailer’s purchase order(s), order acknowledgement(s) or any other document provided to NeuroSky by Retailer that is in any way different from, inconsistent with or in addition to the Terms shall be of no effect, shall not apply to the purchase and sale of Products between the parties, and shall not become a part of a contract between the parties or be binding upon either Retailer or NeuroSky.
- Payment Terms. Retailer agrees to pay NeuroSky as agreed and confirmed between NeuroSky and Retailer.
- Late Payment Charges. Any late payment by Company shall be subject to a late payment charge from the date due until paid in full at a rate equal at all times to one and one-half percent (1-1/2%) per month or, if lower, the highest rate permitted by law.
- Deleted Products for Retailer. NeuroSky reserves the right to remove any item from the list of Products upon written notice.
- Taxes. Unless otherwise agreed to in writing by NeuroSky, all prices quoted are exclusive of transportation and insurance costs, and all Taxes (as defined below). In addition to any other payments due pursuant to the purchase of the Products, Retailer agrees to pay, indemnify and hold NeuroSky harmless from any sales, use, excise, import or export, value-added or similar tax or duty, and any other tax not based on NeuroSky’s income, including any penalties and interest, due to any payment to be made by Retailer pursuant to the purchase of the Products, and any costs associated with the collection or withholding of any of the foregoing items (the “Taxes”). When applicable, such Taxes shall appear as separate items on NeuroSky’s invoice. If Retailer fails to pay any Taxes as of the original due date for such Taxes and NeuroSky receives any assessment or other notice (collectively the “Assessment”) from any governmental taxing authority providing that such Taxes are due from NeuroSky, NeuroSky shall give Retailer written notice of the Assessment and Retailer shall pay to NeuroSky or the taxing authority the amount set forth as due in the Assessment within thirty (30) business days of receipt of such written notice from NeuroSky.
- Shipment. NeuroSky will use commercially reasonable efforts to ship the Products for delivery on or prior to the times requested in Purchase Orders accepted by NeuroSky. In the event of shortages of labor, energy, components, raw materials or supplies or interruption of NeuroSky’s production or shipment for reasons beyond NeuroSky’s reasonable control, NeuroSky may allocate its production among its customers in a manner NeuroSky deems, in its sole discretion, to be fair and reasonable. Without liability to any person and without prejudice to any other remedy, NeuroSky may withhold or delay shipment of any order if Retailer is late in payment or is otherwise in default.
- Packaging and Shipment—Risk of Loss. All deliveries are EXW (EX-Works) point of shipment (INCOTERMS 2000). For Retailers whose address is within the United States of America or Canada, the point of shipment is Fremont, California. For Retailers whose address is outside the United States of America and Canada, the point of shipment is Hong Kong. Delivery occurs upon making the Products available to the carrier at the shipping point. Title and risk of loss pass to Company at the time the Products are made available to the carrier at the shipping point. The carrier will be deemed to be acting as Retailer’s agent, and all claims for damage to the Products must be filed by Retailer with the carrier.
- Shipment Expense. Retailer will instruct NeuroSky in writing as to which carrier it will use to transport the Products ordered by Retailer. If Retailer has not so instructed NeuroSky, NeuroSky may select the carrier. Retailer will pay all costs of transportation, any insurance requested by Retailer, export and import fees, customs brokerage expenses and similar charges. Retailer is responsible for customs clearance. Retailer, at its expense, will make and negotiate any claims against any carrier, insurer, customs broker, freight forwarder or customs collector. NeuroSky will use commercially reasonable efforts to cooperate with and assist Retailer in making such claims.
- Warranty to End-Customer. The warranties for the Products will be provided directly to the end-customer and not to Retailer or any business partner of Retailer.
- No Amendment to Warranty. Retailer shall have no right or authority, express or implied, directly or indirectly, to alter, enlarge or limit the representations or guarantees beyond those expressly contained in NeuroSky’s Product warranties or those of the licensors of Applications.
- Disclaimer of Warranty. NEUROSKY DISCLAIMS ALL WARRANTIES NOT SPECIFICALLY SET FORTH IN THESE TERMS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NEUROSKY DOES NOT PROMISE THAT THE PRODUCTS ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.
- Product License for Retailer.
- Purchase Rights and License. Retailer will purchase from NeuroSky the Products for resale according to the Terms.
- Retailer’s license and that of any end-user is conditioned upon Retailer’s compliance with all of the Terms, including payment. Retailer shall not decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Products, nor shall Retailer disassemble the Products or otherwise sell or distribute the Products except as packaged and delivered to Retailer by NeuroSky.
- Trademarks and Trade Names and Copyrights.
- License of Trademark. Subject to the terms and conditions contained herein, NeuroSky grants Retailer (a) a personal, non-exclusive, non-transferable license to use NeuroSky’s logo and trademarks (the “NeuroSky Trademarks”), and (b) a personal, non-exclusive, non-transferable sublicense to use third party logo and trademarks in the Products as to which NeuroSky has the right to grant sublicenses (the “Third Party Trademarks” and, collectively with the NeuroSky Trademarks, the “Trademarks”), in Retailer’s marketing of the Products, provided that such use is in accordance with NeuroSky’s then-current guidelines for using the NeuroSky Trademarks and the Third Party Trademarks, as amended from time to time. Without limiting the foregoing, such use must reference the NeuroSky Trademarks as being owned by NeuroSky and the Third Party Trademarks as being owned by such third party. Retailer acknowledges and agrees that all use of the NeuroSky Trademarks shall inure to the benefit of and be on behalf of NeuroSky and that all use of the Third Party Trademarks shall inure to the benefit of and be on behalf of such third party. Nothing in the Agreement grants Retailer ownership or any rights in or to use the Trademarks, except in accordance with this license. The rights granted to Retailer in this license will terminate upon any termination of these Terms or when Retailer no longer holds Products for resale. NeuroSky will have the exclusive right to own, use, hold, apply for registration for, and register the Trademarks. Retailer will neither take nor authorize any activity inconsistent with such exclusive right. Retailer will not: (i) alter or remove any Trademarks applied to, or used in conjunction with any Products, or (ii) use any Trademarks as part of Retailer’s trade name, service mark, or trademark. Retailer will immediately change or discontinue any use of the Trademarks as requested by NeuroSky. Upon NeuroSky’s request, Retailer shall promptly provide NeuroSky with specimens of all uses of the Trademarks and will make any changes to such specimens within thirty (30) days of the date of NeuroSky’s request. Retailer will, on termination of its sales of the Products, cease indicating to the public that it is an authorized retailer of the Products, cease the use of the Trademarks and destroy all existing literature that references any Trademark.
- Trademark Registration. Retailer shall not (i) seek to register any Trademark, or any substantially similar trademarks, in any jurisdiction, (ii) challenge NeuroSky’s ownership of the NeuroSky Trademarks or the third party’s ownership of the Third Party Trademarks, or the validity or enforceability thereof, or (iii) take any action that likely would diminish the value of the Trademarks. Upon termination of its right to resell the Products, Retailer shall cease all use of the Trademarks. If Retailer acquires any rights in any NeuroSky Trademark by operation of law or otherwise, it will immediately, at no cost or expense to NeuroSky, assign such rights to NeuroSky along with all associated goodwill.
- No Retailer Rights in Trademarks or Copyrights. Retailer acknowledges and agrees that it has paid no consideration for the use of the Trademarks and NeuroSky’s copyrights, and nothing contained in the Terms shall give Retailer any interest in any of them. Retailer acknowledges and agrees that NeuroSky owns and retains all copyrights and other proprietary rights in all of NeuroSky’s Products and any NeuroSky Trademarks and copyrights related to any Products, and agrees that it will not at any time assert or claim any interest in or do anything that may adversely affect the validity or enforceability of any of the Trademarks, or copyrights belonging to NeuroSky or licensed to NeuroSky.
- Statute of Limitations. No action by Retailer may be brought at any time more than twenty-four (24) months after the facts upon which the cause of action is based occurred.
- Term and Termination.
- Causes for Termination. The Retailer’s right to purchase the Products from NeuroSky and to resell the Products will terminate:
(a) Thirty (30) days following the date NeuroSky gives Retailer notice of a material breach by the other of any of the Terms or of any agreement between NeuroSky and Retailer relating to the Products, unless the breach is cured within such thirty (30) day period; provided that any willful unauthorized use, copying, modification, reverse engineering, disclosure or sublicensing of the Products will be deemed a material breach of the Agreement that cannot be cured and shall be grounds for immediate termination;
(b) upon notice by either party, immediate upon the liquidation, dissolution, reorganization, merger, sale of substantially all of the assets, or change in management, voting control or corporate form, of the other party; or
(c) upon notice by either party, immediately, if
(1) a receiver is appointed for the other party or its property;
(2) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes an assignment for the benefit of its creditors; or
(3) any proceedings are commenced against the other party under any bankruptcy, insolvency or debtor’s relief law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof.
(d) upon notice by NeuroSky, immediately, if
(1) There is a change in control of Retailer of fifty percent (50%), whether through merger, sale of stock or sale of substantially all of the assets of Retailer;
(2) Retailer engages in fraud or criminal misconduct relevant to the operation of the business of Retailer;
(3) Any officer or key employee of Retailer is convicted of a felony or misdemeanor involving fraud, moral turpitude or commercial dishonesty, whether or not the crime arose from the operation of Retailer’s business.
(e) upon notice by either party, immediately, if the other party has not been in compliance under the Terms for more than one hundred eighty (180) days pursuant to a Force Majeure occurring, as defined in Section 9.8 below.
- Effect of Termination. After termination:
(a) all rights of Retailer to market or resell the Products shall immediately cease;
(b) all sums owed to NeuroSky by Retailer, or by NeuroSky to Retailer shall become immediately due and payable upon the effective date of termination; and
(c) Neither NeuroSky nor the Retailer shall be liable to the other, because of such expiration or termination, for compensation, reimbursement or damages (i) for the loss of prospective profits, anticipated sales or goodwill, (ii) on account of any expenditures, investments or commitments made by either, or (iii) for any other reason whatsoever based upon the result of such expiration or termination.
- Limitation of Liability.
- Consequential Damages. NEITHER PARTY SHALL BE RESPONSIBLE AND SPECIFICALLY DISCLAIMS LIABILITY FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL AND INDIRECT DAMAGES, HOWEVER ARISING, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Limitations of Liability. NEUROSKY’S LIABILITY IN CONNECTION WITH THE PURCHASE OF THE PRODUCTS AND THESE TERMS SHALL IN NO EVENT EXCEED THE SUM OF RETAILER’S PAYMENTS TO NEUROSKY FOR THE PURCHASE OF THE PRODUCTS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL NEUROSKY’S LIABILITY UNDER THIS SECTION EXCEED THE LIMITS OF ITS INSURANCE, OR $100,000, WHICHEVER IS GREATER.
- Foreign Laws. Retailer shall regularly and continuously inform NeuroSky of any and all requirements of laws, statutes, ordinances, rules and regulations of any and all governmental and/or quasi-governmental authorities in the Territory directly or indirectly affecting the sale, license, use or distribution of the Products or NeuroSky’s trade name, trademarks or other commercial or intellectual property interests, including, but not limited to, certification of the Products from the proper authorities. Retailer shall comply with all applicable local and national laws and regulations.
- Foreign Corrupt Practices Act. Retailer warrants that in the performance of its obligations, it shall not act in any fashion or take any action which will render NeuroSky liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist it or NeuroSky in obtaining or retaining business.
- Currency. Unless NeuroSky provides written instructions otherwise, all payments by or to NeuroSky hereunder shall be in United States currency drawn on a United States bank.
- Choice of Law. The Terms are governed by and construed in accordance with the laws of the United States and the State of California, as applied to agreements entered into and to be performed entirely within California and between California residents. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to the purchase of the Products.
- Language. The official language of the Terms exclusively shall be, and all communications and agreements between the parties exclusively shall be made in, the English language. The parties hereto waive any rights they may have under any other law to have the Terms written in another language, and any translation of the Terms will be solely for the convenience of the parties hereto.
- Amendment. The Terms may be amended or modified only by a writing that is signed by duly authorized representatives of both parties.
- Waiver. No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
- Force Majeure. Except for the payment of money, neither party will be liable for any failure or delay in performance which might be due, in whole or in part, directly or indirectly, to any contingency, delay, failure, or cause of any nature beyond the reasonable control of such party, including without limitation, fire, explosion, earthquake, storm, flood or other weather, unavailability of necessary utilities or raw materials, strike, lockout, unavailability of components, unavailability of manufacturing capacity, activities of a combination of workmen or other labor difficulties, war, insurrection, riot, act of God or the public enemy, law, act, order, export control regulation, proclamation, decree, regulation, ordinance, or instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of the Terms). In the event of the happening of such a cause, the party whose performance is so affected will give prompt, written notice to the other party, stating the period of time the cause is expected to continue. Such delay will not be excused under this Section for more than one hundred eighty (180) days.
- Severability. If any part of the Terms is found invalid or unenforceable, such part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of the Terms will remain in full force.
- Equitable Relief. Either party may have injunctive, preliminary or other equitable relief to remedy any actual or threatened dispute that is excepted from compulsory arbitration.
- Entire Agreement. The Terms and the Purchase Order confirmation constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral.
- Venue. Except with respect to those claims which are subjected to arbitration herein, the parties hereby submit to the exclusive jurisdiction of, and waive any venue objection against, the state and federal courts located in the State of California and the County of Santa Clara, in any litigation arising out of the purchase and sale of the Products.
- Notices. All notices, reports, requests, approvals and other communications required or permitted must be in writing. They will be deemed given when required if: (i) delivered personally, or (ii) sent by commercial overnight courier with written verification of receipt. Such notice shall be treated as having been received upon actual receipt. All communications must be sent to the receiving party’s addresses as set forth in the Agreement or to such other address that the receiving party may have provided for purpose of notice, in a manner provided in this Section:
- Allocation of Risk. The sections on limitations of liability, disclaimer of warranties and warranties allocate the risks in the Terms between the parties. This allocation is reflected in the pricing of the Products and is an essential element of the basis of the sale of the Products by NeuroSky to Retailer.
- Relationship of the Parties. The parties are independent contractors. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties in any way. Neither party nor its employees has the authority to bind or commit the other party in any way or to incur any obligation on its behalf.
- Assignment. NeuroSky may assign its rights and obligations as to the sale of the Products and/or under the Terms to any person to whom it transfers all or substantially all of its proprietary rights in the Products. Otherwise, neither party may assign, voluntarily, by operation of law or otherwise, any rights or delegate any duties without the other party’s prior written consent, and any attempt to do so without that consent will be void. The Terms will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
- Arbitration. Except with respect to claims for a breach of any intellectual property-related rights hereunder, any dispute between NeuroSky and Retailer pursuant to the Terms involving its interpretation or the obligations of a party hereto, shall be determined by binding arbitration conducted in English. Arbitration shall be held in accordance with the Rules of the American Arbitration Association (“AAA”) in the City of San Jose, State of California of the United States. Arbitration may be conducted by one (1) attorney arbitrator by mutual agreement or by three (3) arbitrators if the parties are unable to agree on a single arbitrator within thirty (30) days of first demand for arbitration. All arbitrators are to be selected from a panel provided by the AAA. If a three-arbitrator panel is necessary, the chairman and one other arbitrator shall be attorneys-at-law, and the third arbitrator shall have a background or training in either computer law, computer science, computer engineering, or marketing of computer-industry products. The arbitrators shall have the authority to permit discovery, to the extent deemed appropriate by the arbitrators, upon request of a party. The arbitrators shall have no power or authority to add to or detract from the agreements of the parties. The costs of the arbitration shall be borne equally pending the arbitrator’s award. The arbitrator shall have the authority to grant any temporary, preliminary, or permanent injunctive or other equitable relief in a substantially similar form, that would otherwise be granted by a court. The arbitrators shall have no authority to award punitive or consequential damages. The resulting arbitration award may be enforced by all lawful remedies, including without limitation injunctive or other equitable relief in any court of competent jurisdiction. The trial courts of the County of Santa Clara, State of California, and the United States District Court for the Northern District of California are courts of competent jurisdiction. The parties agree to submit to the jurisdiction of those courts, as applicable, for all purposes concerning any arbitration.
- Survival. The sections of the Terms that, by their terms, are intended to survive termination of purchase and sale of the Products will survive any termination of the Terms.
Last updated August 31, 2013 Version 1.2