NEUROSKY RESELLER AGREEMENT
TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) are incorporated by reference and made a part of that certain Reseller Agreement (the “Agreement”) between NeuroSky, Inc. (“NeuroSky”), a Delaware corporation, and the identified Reseller (“Reseller”). Capitalized terms not defined herein are as defined in the Agreement and the Exhibits thereto.
1. Definitions. The following terms shall have the respective meanings set forth below:
1.1 “Applications” means the applications for use with the Headsets that are contained on the CD.
1.2 “Base Software” means NeuroSky’s software that is embedded in the Products.
1.3 “CD” means the compact disc containing the Applications and the User Guide.
1.4 “Competing Products” means products (other than the Products) that capture and process biosensor signals.
1.5 “Sensors” means NeuroSky’s non-invasive dry sensor products that capture the electrical waves generated by biosignals and incorporated into the Products.
1.6 “Software” means the Applications and the Base Software.
1.7 “Specifications” means NeuroSky’s then-current functional specifications for the Products, subject to change from time to time.
1.8 “User Guide” means the instructions for use contained with the Products, whether in paper, on the CD, or in any other medium.
2. Non-exclusive Relationship. Reseller shall be a non-exclusive reseller in the Territory on NeuroSky’s behalf with respect to the Products. Reseller agrees that it shall not distribute, sell or market any Competing Products without the prior written approval of NeuroSky.
3. Responsibilities of Reseller.
3.1 Facilities. Reseller has, and will maintain, at its own expense, adequate facilities and sufficient and adequately trained personnel necessary to perform its obligations under the Agreement. Reseller further represents that it is ready and willing to do so, and in particular that it will: (i) not misrepresent NeuroSky or its Products; (ii) not alter or reverse engineer or facilitate the reverse engineering by others of the Products; and (iii) comply with NeuroSky’s published terms and conditions and other policies related to transactions contemplated hereunder.
3.2 Sales Promotion. Reseller will use its reasonable efforts to: (i) promote the sale and distribution of the Products in the Territory; and (ii) satisfy those reasonable criteria and policies of NeuroSky with respect to Reseller’s obligations under the Agreement, as developed and announced by NeuroSky from time to time. All promotional and advertising material for the Products, unless supplied by NeuroSky, must be approved in writing by NeuroSky prior to its use. Reseller shall assign all right, title and interest in the copyrights advertising material referencing NeuroSky and/or the Products, and shall confirm such assignment by execution of such assignments and other documents that NeuroSky may request from time to time.
3.3 Compliance with NeuroSky’s Policies. To the extent possible under the laws of the Territory, Reseller shall comply with NeuroSky’s applicable policies, as amended from time to time, whether listed on NeuroSky’s website or separately provided to Reseller.
3.4 Non-Deceptive Practices. Reseller shall conduct business in a manner that will at all times favorably reflect on the Products and the reputation of NeuroSky and avoid any deceptive or unethical practices or advertising that is or might be detrimental to NeuroSky or its customers. Reseller will make no false or misleading representations with regard to NeuroSky or the Products and will not enter into any contract or engage in any practice detrimental to the interests of NeuroSky.
3.5 Records and Reports; Audit.
(a) Reseller shall maintain complete and accurate books and records and shall, retain originals or copies of all correspondence and all other correspondence of any kind relating to all obligations of Reseller under the Agreement
(b) NeuroSky and its agents shall have the right at any time during the term of the Agreement, but no more than twice a year and for a period of two (2) years after the expiration or termination of the Agreement to examine such books, records and correspondence as it may deem appropriate upon reasonable advance notice given to Reseller. The costs relating to such examination (not including costs incurred by Reseller) shall be borne by NeuroSky.
3.6 Reseller Responsible for Business Partners. Reseller will be fully responsible for any act or omission by any business partner of Reseller that, if undertaken by Reseller, would constitute a breach of the Agreement.
4. Pricing; Orders; Payment.
4.1 Price. The price of the Products for purchase by Reseller for sale to approved customers shall be in conformance with the price list agreed upon in writing by the parties.
4.2 Price Increases and Decreases. NeuroSky shall give Reseller thirty (30) days advance written notice of any price increase or decrease to the Products. All orders accepted after the effective date of the price increase or decrease shall be at the new price.
4.3 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 under the Agreement, Reseller 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 Reseller pursuant to the Agreement, 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 Reseller 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 Reseller written notice of the Assessment and Reseller 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.
4.4 Order Process. All orders by Reseller to NeuroSky for Products shall be made by submitting a firm, non-cancelable, written purchase order (“Purchase Order”) with NeuroSky’s product number(s) describing the Products that Reseller desires to purchase from NeuroSky, the quantity and Reseller’s desired delivery date. Purchase orders shall not be binding upon NeuroSky until confirmed by NeuroSky. Any confirmation shall be made by NeuroSky in writing within seven (7) days after receipt of an order, which confirmation shall include the estimated date of delivery. If no confirmation is received within seven (7) days after receipt of an order, such order is not confirmed. All orders confirmed by NeuroSky are firm orders and cannot be changed, cancelled, or in any other way altered.
4.5 Acceptance of Purchase Orders. NeuroSky will use commercially reasonable efforts to accept Purchase Orders issued by Reseller as long as such orders request (a) quantities of Products not exceeding the quantities forecast in Reseller’s most recent forecast provided to NeuroSky and applicable to the time period in which such order is placed, and (b) request shipment dates not less than the Lead Time.
4.6 Each purchase order issued hereunder will bear the following statement:
“This Purchase Order is placed subject to the Reseller Agreement between NeuroSky, Inc. and [Reseller’s name].”
4.7 No Change in Terms. Unless otherwise agreed in writing and signed by both parties referencing the Agreement, the relevant terms and provisions of the Agreement shall govern each order for Products by Reseller. Any term or condition incorporated in Reseller’s purchase order(s), order acknowledgement(s) or any other document provided to NeuroSky by Reseller that is in any way different from, inconsistent with or in addition to the terms and conditions set forth in the Agreement 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 Reseller or NeuroSky.
4.8 Payment Terms. Reseller agrees to pay NeuroSky, at the time of confirmation of the Purchase Order, the amount provided in the Agreement. The order will not be considered confirmed until NeuroSky receives this deposit payment, which shall be made within three (3) business days after confirmation of such order. Each shipment shall be invoiced and paid for when due without regard to other scheduled deliveries. All invoices shall be due and payable within thirty (30) days after the date of the invoice.
4.9 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.
4.10 Financial Condition. Reseller represents and warrants that it is in good financial condition, solvent and able to pay its bills when due. Reseller will notify NeuroSky in writing within thirty (30) days of any change in the management or control of Reseller or any transfer of more than fifty percent (50%) of Reseller’s voting control or a transfer of substantially all of Reseller’s assets.
4.11 Deleted Products for Reseller. NeuroSky reserves the right to remove any item from the list of Products upon ninety (90) days prior written notice; provided, however, that NeuroSky shall deliver to Reseller the Products ordered by Reseller if NeuroSky has accepted such order.
5. Shipment. NeuroSky will use commercially reasonable efforts to ship the Products at 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 Reseller is late in payment or is otherwise in default under the Agreement.
5.1 Packaging and Shipment—Risk of Loss. All deliveries are EXW (EX-Works) point of shipment (INCOTERMS 2000). For Resellers whose address is within the United States of America or Canada, the point of shipment is Fremont, California. For Resellers 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 Reseller’s agent, and all claims for damage to the Products must be filed by Reseller with the carrier.
5.2 Shipment Expense. Reseller will instruct NeuroSky in writing as to which carrier it will use to transport the Products ordered by Reseller. If Reseller has not so instructed NeuroSky, NeuroSky may select the carrier. Reseller will pay all costs of transportation, any insurance requested by Reseller, export and import fees, customs brokerage expenses and similar charges. Reseller, 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 Reseller in making such claims.
6.1 Warranty to End-Customer. The warranties for the Products will be provided directly to the end-customer and not to Reseller or any business partner of Reseller.
6.2 No Amendment to Warranty. Reseller 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.
6.3 Disclaimer of Warranty. NEUROSKY DISCLAIMS ALL WARRANTIES NOT SPECIFICALLY SET FORTH IN THE AGREEMENT, 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.
7. Product License for Reseller.
7.1 Purchase Rights and License. Reseller will purchase from NeuroSky the Products for resale according to the terms and conditions of the Agreement. The Software is not sold, but rather is licensed solely for end users’ personal use.
7.2 Reseller’s license is conditioned upon Reseller’s compliance with all of the terms and conditions of the Agreement, including payment. Reseller shall not decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Products, nor shall Reseller disassemble the Products or otherwise sell or distribute the Products except as packaged and delivered to Reseller by NeuroSky.
8. Trademarks and Trade Names and Copyrights.
8.1 License of Trademark. During the term of the Agreement and subject to the terms and conditions contained herein, NeuroSky grants Reseller a personal, non-exclusive, non-transferable license to use NeuroSky’s logo and trademarks (the “Trademarks”) in Reseller’s marketing of the Products, provided that such use is in accordance with NeuroSky’s then-current guidelines for using the NeuroSky Trademarks, as amended from time to time. The list of NeuroSky’s Trademarks as of the date of these Terms is as follows: NeuroSky, eSense, MindSet, MindWave, MindWave Mobile, Necomimi, ThinkGear, NeuroBoy, Visualizer. Without limiting the foregoing, such use must reference the Trademarks as being owned by NeuroSky. Reseller acknowledges and agrees that all use of NeuroSky’s Trademarks shall inure to the benefit of and be on behalf of NeuroSky. Nothing in the Agreement grants Reseller ownership or any rights in or to use the Trademarks, except in accordance with this license. The rights granted to Reseller in this license will terminate upon any termination or expiration of the Agreement. NeuroSky will have the exclusive right to own, use, hold, apply for registration for, and register the Trademarks during the term of, and after the expiration or termination of, the Agreement. Reseller will neither take nor authorize any activity inconsistent with such exclusive right. Reseller will not: (i) alter or remove any NeuroSky Trademarks applied to, or used in conjunction with any Products, or (ii) use any NeuroSky Trademarks as part of Reseller’s trade name, service mark, or trademark. Reseller will immediately change or discontinue any use of the Trademarks as requested by NeuroSky. Upon NeuroSky’s request, Reseller shall promptly provide NeuroSky with specimens of all uses of NeuroSky’s Trademarks and will make any changes to such specimens within thirty (30) days of the date of NeuroSky’s request. Reseller will, on expiration or termination of the Agreement, cease indicating to the public that it is an authorized distributor of Products, cease the use of NeuroSky Trademarks and destroy all existing literature that references any NeuroSky Trademark.
8.2 Trademark Registration. Reseller shall not (i) seek to register any NeuroSky Trademark, or any substantially similar trademarks, in any jurisdiction, (ii) challenge NeuroSky’s ownership of the Trademarks or the validity or enforceability thereof, or (iii) take any action that likely would diminish the value of the Trademarks. Upon termination of the Agreement, Reseller shall cease all use of the Trademarks. If Reseller 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.
8.3 Authorized Representative. Solely during the term of the Agreement, Reseller may further indicate to the public that it is an authorized representative of the Products, provided that the display of the NeuroSky Trademarks on Reseller’s marketing documents and worldwide web sites shall be at least as prominent as the name and logo of any other company displayed on such materials or site.
8.4 No Reseller Rights in Trademarks or Copyrights. Reseller acknowledges and agrees that it has paid no consideration for the use of the NeuroSky Trademarks and copyrights, and nothing contained in the Agreement shall give Reseller any interest in any of them. Reseller acknowledges and agrees that NeuroSky owns and retains all copyrights and other proprietary rights in all of NeuroSky’s Products and any Trademarks and copyrights related to any Products, and agrees that it will not at any time during or after the term of the Agreement assert or claim any interest in or do anything that may adversely affect the validity or enforceability of any Trademarks or copyrights belonging to NeuroSky or licensed to NeuroSky.
9. Engineering Changes; Documentation.
9.1 Product Changes. NeuroSky shall have the right to make deletions, changes, substitutions and modifications in the Products and the Specifications therefor. As to any such deletions, substitutions or modifications, other than mandatory field change orders required for equipment safety or proper operation, that materially and adversely affect the Products’ form, fit or function, Reseller’s sole and exclusive remedy shall be to cancel, without penalty, outstanding orders for affected Products within twenty (20) days following receipt of written notice of the change.
10.1 Infringement Indemnification. NeuroSky will defend any suit or proceeding brought against Reseller in the Territory based on a claim that any of the Products, as furnished by NeuroSky under the Agreement, infringes or misappropriates any rights of third parties arising under copyright or trade secret law. NeuroSky will pay all settlements and damages finally awarded therein against Reseller; provided that Reseller (a) shall have made all payments to NeuroSky due under the Agreement; (b) shall have otherwise complied with the terms, conditions and provisions of the Agreement; (c) shall have given prompt written notice to NeuroSky of any claim of infringement and furnished NeuroSky with all papers received in connection therewith; (d) shall have permitted NeuroSky to take complete charge of the defense of any such suit and to settle the same, in either case if deemed advisable by NeuroSky; and (e) shall have assisted NeuroSky in every reasonable manner in the conduct of such defense. In the event that NeuroSky elects to not take charge of the defense of any such suit, Reseller shall have the right to defend against any such suit at the cost and expense of NeuroSky. If the use or sale of any Products is permanently enjoined or a final judgment awarding damages is entered against Reseller by reason of any such infringement or misappropriation, NeuroSky shall, in addition to its obligation to pay all settlement and damages finally awarded against Reseller, at its sole election, either (x) procure the right to use the Products; (y) replace or modify the Products so that it becomes noninfringing or no longer uses misappropriated trade secrets; or (z) refund to Reseller an amount equal to the purchase price of the products sold to Reseller and remaining in Reseller’s inventory.
(a) Exceptions. NeuroSky will not be obligated under this Section to defend or be liable for costs and damages to the extent that infringement, or a claim thereof, arises out of or is related to: (i) a modification made to Product by Reseller or a third party, (ii) use or combination of Product with products or data not provided by NeuroSky, (iii) use of other than the latest unmodified release of the Software made available to Reseller by NeuroSky if such infringement would have been avoided by the use thereof, or (iv) use or distribution of Product after Reseller receives notice, or has reason to believe, that Product infringes a patent, copyright or trademark of a third party.
(b) Limitations. THE FOREGOING STATES THE ENTIRE LIABILITY OF NeuroSky FOR PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT BY ANY PRODUCT FURNISHED UNDER THE AGREEMENT, AND IS RESELLER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS THERETO.
10.2 Indemnification by Reseller. Reseller shall indemnify NeuroSky and hold NeuroSky, its officers, directors, shareholders, employees, insurers, attorneys, successors and assigns harmless from and against any and all liability, losses, claims, expenses (including reasonable attorneys’ fees), demands or damages of any kind, arising out of or related to the acts or omissions of Reseller, its employees, representatives or agents, in connection with their activities under the Agreement.
11. Statute of Limitations. No action by Reseller arising under the Agreement may be brought at any time more than twenty-four (24) months after the facts upon which the cause of action is based occurred.
12. Confidential Information.
12.1 Reseller agrees to maintain in confidence what it knows or has reason to know is regarded as confidential by NeuroSky (“Confidential Information”). The Confidential Information will include, but will not be limited to, trade secrets, the structure, formulae, algorithms, software programs, software source documents, APIs, sequence and organization of the Products, sales and marketing plans, blueprints, techniques, processes, procedures and formulae, price lists, specifications, prints, Product plans and marketing plans, customer lists, business forecasts, procurement requirements and purchasing and manufacturing information and the terms of the Agreement. In order for information to be deemed Confidential Information it must be marked by NeuroSky prior to its receipt by the Reseller in a manner to indicate that it is considered Confidential Information hereunder. Any information disclosed orally or visually must (i) be identified at the time of disclosure as confidential and (ii) within ten (10) days of such disclosure be described in writing and sent by NeuroSky to Reseller in sufficient detail to describe such disclosure, in order for it to be deemed Confidential Information. Reseller shall, during the term of the Agreement and for three (3) years after the termination of the Agreement, keep in confidence all such Confidential Information, and shall not use such Confidential Information without NeuroSky’s written consent, except in performance of its duties hereunder; provided, that with respect to any algorithms, source code or firmware disclosed hereunder, the obligations of confidentiality shall extend indefinitely, subject to the exclusions below. Reseller will not disclose the Confidential Information to any person except its employees or consultants to whom it is necessary to disclose the Confidential Information for such purposes. Reseller agrees that the Confidential Information will be disclosed or made available only to those of its employees or consultants who have agreed to receive it under terms at least as restrictive as those specified in the Agreement.
12.2 Reseller will take reasonable measures to maintain the confidentiality of the Confidential Information, but not less than the measures it uses to protect its confidential information of similar type. Reseller will immediately give notice to NeuroSky of any unauthorized use or disclosure of the Confidential Information. Reseller agrees to assist NeuroSky in remedying such unauthorized use or disclosure of the Confidential Information. This obligation will not apply to the extent that Reseller can demonstrate:
(a) the disclosed information, at the time of disclosure, was part of the public domain;
(b) the disclosed information became part of the public domain, by publication or otherwise, except by breach of the provisions of the Agreement;
(c) the disclosed information can be established by written evidence to have been in the possession of Reseller at the time of disclosure; or
(d) the disclosed information is received from a third party without similar restrictions and without breach of the Agreement.
12.3 Government Process. It shall not be a breach of this Section 16 to disclose Confidential Information to the extent that the disclosed information is required to be disclosed by a government agency to further the objectives of the Agreement, such as to obtain permission to distribute the Product, or by a proper court of competent jurisdiction; provided, however, that Reseller will use its best efforts to minimize the disclosure of such information and will consult with and assist NeuroSky in obtaining a protective order prior or confidential treatment to such disclosure.
13. NeuroSky Products. Reseller agrees that it shall not contract with any other provider of products incorporating NeuroSky’s technology, including without limitation as a reseller, distributor, sales representative, logistics provider or otherwise, without the prior written consent of NeuroSky, which may be granted or withheld in NeuroSky’s sole discretion.
14. Term and Termination.
14.1 Term. The term of the Agreement shall begin as of the Term Start Date and shall continue for the term specified in the Agreement, subject to the terms and conditions set forth hereunder.
14.2 Causes for Termination. The Agreement and all licenses under the Agreement will terminate:
(a) Thirty (30) days following the date either party gives the other notice of a material breach by the other of any term or condition of the Agreement or of any agreement between NeuroSky and Reseller 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 Reseller of fifty percent (50%), whether through merger, sale of stock or sale of substantially all of the assets of Distributor;
(2) Reseller engages in fraud or criminal misconduct relevant to the operation of the business of Reseller;
(3) Any officer or key employee of Reseller is convicted of a felony or misdemeanor involving fraud, moral turpitude or commercial dishonesty, whether or not the crime arose from the operation of Reseller’s business.
(e) upon notice by either party, immediately, if the other party has not been in compliance under the Agreement for more than one hundred eighty (180) days pursuant to a Force Majeure occurring, as defined in Section 21.8 below.
14.3 Effect of Termination. After termination:
(a) all rights of Reseller to market or distribute the Products shall immediately cease;
(b) all sums owed to NeuroSky by Reseller, or by NeuroSky to Reseller shall become immediately due and payable upon the effective date of termination;
(c) Reseller shall return or destroy all copies of the Confidential Information within thirty (30) days after the effective date of the termination. At the request of NeuroSky, the president or the equivalent officer of Reseller will certify in writing that Reseller has complied with its obligations hereunder; and
(d) Neither NeuroSky nor the Reseller 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.
15. Limitation of Liability.
15.1 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.
15.2 Limitations of Liability. Except for NeuroSky’s liability under ITS INDEMNIFICATION OBLIGATIONS HEREIN, NEUROSKY’S LIABILITY IN CONNECTION WITH THE AGREEMENT EXCEED (A) THE SUM OF RESELLER’S PAYMENTS TO NEUROSKY UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY OR (B) ONE HUNDRED THOUSAND DOLLARS (US$100,000), WHICHEVER IS LESS. IN NO EVENT WILL NEUROSKY’S LIABILITY UNDER THIS SECTION EXCEED THE LIMITS OF ITS INSURANCE, OR $500,000, WHICHEVER IS GREATER.
16.1 Foreign Laws. Reseller shall regularly and continuously inform NeuroSky of any and all requirements of laws, statutes, ordinances, rules and regulations of any and all governmental and/or quasi-governmental authorities in the Territory directly or indirectly affecting the sale, license, use or distribution of the Products or NeuroSky’s trade name, trademarks or other commercial or intellectual property interests, including, but not limited to, certification of the Products from the proper authorities. Reseller shall comply with all applicable local and national laws and regulations.
16.2 Foreign Corrupt Practices Act. Reseller warrants that in the performance of its obligations under the Agreement, it shall not act in any fashion or take any action which will render NeuroSky liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist it or NeuroSky in obtaining or retaining business.
16.3 Currency Exchange. Unless NeuroSky provides written instructions otherwise, all payments by or to NeuroSky hereunder shall be in United States currency drawn on a United States bank. The amounts owed to NeuroSky shall be determined by the foreign currency of the country specified in Reseller address as set forth above/US.$ exchange ratio quoted by The Wall Street Journal as of the close of business on the payment due date. Payments based on sales in other currencies shall be converted to U.S. Dollars according to the official rate of exchange for that currency, as published in The Wall Street Journal (Western Edition), on the last day of the calendar quarter in which the payment accrued (or, if not published on that day, the last publication day for The Wall Street Journal during that month).
16.4 Choice of Law. The Agreement is 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 Agreement.
16.5 Language. The official language of the Agreement 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 Agreement written in another language, and any translation of the Agreement will be solely for the convenience of the parties hereto.
16.6 Amendment. The Agreement may be amended or modified only by a writing that is signed by duly authorized representatives of both parties.
16.7 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.
16.8 Force Majeure. Except for the payment of money, neither party will be liable for any failure or delay in performance under the Agreement 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 Agreement). 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.
16.9 Severability. If any part of the Agreement 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 Agreement will remain in full force.
16.10 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.
16.11 Entire Agreement. The Agreement, including all Exhibits hereto, constitutes 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. This original of the Agreement has been written in English and no translation will have any effect on the interpretation thereof.
16.12 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 Agreement.
16.13 Notices. All notices, reports, requests, approvals and other communications required or permitted under the Agreement 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:
16.14 Allocation of Risk. The sections on limitations of liability, disclaimer of warranties and warranties allocate the risks in the Agreement between the parties. This allocation is reflected in the pricing of the Products and is an essential element of the basis of the Agreement.
16.15 Relationship of the Parties. The parties to the Agreement 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.
16.16 Assignment. NeuroSky may assign the Agreement 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 under the Agreement without the other party’s prior written consent, and any attempt to do so without that consent will be void. The Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
16.17 Arbitration. Except with respect to claims for a breach of any intellectual property-related rights hereunder, any dispute between NeuroSky and Reseller under the Agreement 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.
16.18 Survival. The sections of the Agreement that, by their terms, are intended to survive termination of the Agreement will survive any termination of this Agreement.
Last updated June 8, 2012