Terms & Conditions
Neurapses Data Terms of Service
Updated 15 August, 2021
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY USING OR ACCESSING Neurapses PRODUCTS, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
A. DEFINITIONS
The following terms, when used in this Agreement, have the meanings set forth in this Section 1. Other terms are defined where they are used. Definitions are deemed to refer to the singular or plural, as the context requires. As used herein, “including” (and its variants) means “including without limitation”-(and-its-variants).
a. “Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” includes the power to direct the management or affairs and the ownership of 50% or more of the voting equity securities or other equivalent voting interests of an entity;
b. “API” means the Products’ application programming interface;
c. “Laws” means any applicable local, state, federal and international laws and regulations, including privacy laws and associated regulations;
d. “Query” means a request sent to the search API and includes specific user-driven operations, such as submitting a search request, interacting with search facets, requesting subsequent results pages, sorting search results, exporting search results, and automatically-triggered operations, such as dynamically displaying relevant content to a user during data entry, but excludes Recommendations and user-driven operations where search-term suggestions are generated from letter-by-letter typing by a User into a search box, where “Recommendation” means a request sent to the search API which is serviced by an Event Recommendation machine learning model. This model and how it is invoked is controlled by you via the administration tools on your Neurapses account, located in your dashboard;
e. “User” means any authorized end-user of the Products.
B. SCOPE OF THE AGREEMENT
This Agreement governs your initial purchase as well as any future purchases made by you that reference this Agreement. This Agreement includes any Orders (as defined in Section 3) and any other referenced policies and attachments. The benefit of this Agreement shall extend to your Affiliates; provided that you shall be responsible for placing Orders and distributing the Products to your Affiliates. You are responsible for compliance with this Agreement by all Users. All use of Products by you and your Users must be within the Scope of Use (as defined in Section 3) and solely for the benefit of-you-or-your-Affiliates.
This Agreement governs (a) Neurapses hosted or cloud-based solutions (designated as “Cloud” deployments) (“Hosted Services”), (b) Neurapses commercially available downloadable software products or components (“Software”), and (c) any related support or maintenance services provided by Neurapses (“Support and Maintenance”). Software and Hosted Services are collectively referred to as “Products”. The Products and their permitted use are further described in Neurapses’ standard documentation (“Documentation”). Section 4 (Hosted Services Terms) applies specifically to Hosted Services, and Section 5 (Software Terms) applies specifically to Software, but unless otherwise specified, other provisions of this Agreement apply to all Products. If you elect to purchase any professional services, which may include implementation and optimization of the Products, change management and business practice optimization (collectively, “Professional Services”), the terms of the applicable statement of work will apply.
C. ORDERS
Neurapses’ Product ordering documentation (“Order”) and Documentation will specify your authorized scope of use for the Products, which may include number and type of Users, items, Queries, storage or capacity, numbers of licenses, copies or instances, or other restrictions or billable units (as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use. The term of each Hosted Services subscription (as applicable, “Term”) will be specified in each Order.
D. HOSTED SERVICES TERMS
This Section 4 applies to any Hosted Services under any applicable Order
a. Access to Hosted Services
Neurapses grants you a non-exclusive right to access and use the Hosted Services during the applicable Term in accordance with this Agreement, your applicable Scope of Use and the Documentation. You acknowledge that our Hosted Services are online, subscription-based products and that Neurapses may make changes to the Hosted Services from time to time in accordance with Neurapses’ then-current Support and Service Level Policy.
b. Subscription Term
The Hosted Services are provided on a subscription basis for the Term specified in your Order, which may be renewed upon agreement between the Parties at Neurapses’ then-current rates, as set out in the applicable renewal Order.
c. Credentials
You must ensure that all Users keep their user IDs and passwords for the Hosted Services strictly confidential and do not share such information with any unauthorized person, when applicable. You are responsible for all actions taken using your accounts and passwords, and you agree to immediately notify Neurapses of any unauthorized use of which you become aware. Subject to the Scope of Use indicated in the applicable Order, credentials may be reassigned by you.
d. Customer Data
“Customer Data” means both Index Data and Analytics Data (as defined below). “Index Data” means any item, data or other material of any type that you upload or submit to the Hosted Services for indexing, which is used to provide you with relevant search results and can be stored in whole or in part in Neurapses’s platform. “Analytics Data” means information reflecting the use of the Hosted Services by your Users. You will retain all right, title and interest in and to Customer Data. Subject to the terms of this Agreement, you hereby grant to Neurapses a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Customer Data, in each case solely to the extent necessary to provide the applicable Hosted Services to you or improve the Hosted Services, and (b) to distribute and publicly perform and display Customer Data as you (or your Users) direct or enable through the Hosted Services. Neurapses may also access your account or instance in order to respond to your support requests. To the extent applicable under privacy Laws, the Customer Data will be processed by Neurapses in accordance with Neurapses’s standard data processing addendum (“DPA”). By entering into this Agreement, each Party is deemed to have entered into the DPA, including the “Standard Contractual Clauses”, under which Neurapses will be the “data importer” and you will be the “data exporter”.
e. Data Retention
Neurapses shall delete Customer Data within sixty (60) days of termination or expiration of your final Term. Upon your written request submitted to Neurapses before the end of such data retention period, Neurapses shall provide you with a copy of your Analytics Data in Neurapses’ standard format
f. Security
Neurapses implements commercially reasonable security procedures to help protect Customer Data from security attacks, as set out in the Neurapses Security Exhibit. You understand that use of the Hosted Services necessarily involves transmission of Customer Data over networks that are not owned, operated or controlled by Neurapses, and Neurapses is not responsible for any of Customer Data lost, altered, intercepted or stored across such networks. Neurapses cannot guarantee that its security procedures will be error-free, that transmissions of Customer Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers. You may not, without the prior written consent of Neurapses’s security officer; which consent shall not be unreasonably withheld: (i) conduct security, integrity, penetration, vulnerability or similar testing on the Hosted Services, or (ii) use any Hosted Services tool designed to automatically emulate the actions of a human user (commonly referred to as robots) in conjunction with the Hosted Services.
g. Removals and Suspension
Neurapses has no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if Neurapses deems such action necessary based on your violation of this Agreement, Neurapses may (i) remove your Index Data from the Hosted Services or (ii) suspend your access to the Hosted Services. Neurapses will alert you when Neurapses takes such action and give you a reasonable opportunity to cure your breach, but if Neurapses determines that your actions endanger the operation of the Hosted Services or other users, Neurapses may suspend your access immediately without notice. You will continue to be charged for the Hosted Services during any suspension period.
E. SOFTWARE TERMS
This Section 5 applies if Software components are licensed to you under any applicable-order.
a. Your License Rights
Neurapses grants you a non-exclusive, non-sublicensable and non-transferable other than in accordance with this Agreement license to install and use the Software during the applicable Term in accordance with this Agreement, your applicable Scope of Use, and the Documentation. The Software requires a license key to operate, which will be delivered as described in Section 8.1 (Delivery).
b. Number of Instances
For each Software license that you purchase, you may install the number of production instances of the Software specified on the applicable Order on systems owned or operated by you (or your third-party service providers so long as you remain responsible for their compliance with the terms and conditions of this Agreement). You can also purchase licenses for certain of our Software offerings to allow you to deploy “non-production” instances, such as for development, staging or QA purposes. You and your Affiliates may make one copy of the Software exclusively for backup and disaster recovery purposes. You must obtain Neurapses’ prior written approval to make any additional copies of the Software.
F. SUPPORT AND MAINTENANCE
Neurapses will provide the Support and Maintenance services described in the Support and Service Level Policy referred to in your Order. Support policies are available upon request and may be modified by Neurapses from time to time to reflect process improvements or changing practices; provided that no such change will materially reduce the level of Support and Maintenance services set forth in the applicable policy.
G. API
You may, in accordance with the Documentation, modify the script of the Product search interface by utilizing the API provided by Neurapses with the Product. You may also create and use a custom search interface through the API.
H. FINANCIAL TERMS
a. Delivery
All deliveries under this Agreement will be electronic. Upon invoicing of the fees due under the applicable Order, Neurapses will deliver the applicable license keys (in the case of Software) or login instructions (in the case of Hosted Services) to the email address specified in your Order. For the avoidance of doubt, you hereby acknowledge that you are responsible for installation of any Software and that Neurapses has no further delivery obligation with respect to the Software after the delivery of the license keys.
b. Payment
You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars within thirty (30) days of your receipt of an invoice by Neurapses. If any invoiced amount is not received by the due date, without limiting Neurapses rights and remedies, (i) those charges may accrue at the rate of 1% per month or the maximum rate permitted by applicable Law, whichever is less and/or (ii) Neurapses may condition future subscriptions on payment terms shorter than those provided in this Section. In the event a payment owed by you under an accurate invoice is overdue by thirty (30) days or more, Neurapses shall have the further right, at its sole option, to suspend your access to the Product until payment is made. We will not exercise our rights under this Section if you are disputing the applicable fees reasonably and in good faith and are cooperating to resolve the dispute. Other than as expressly set forth this Agreement, all amounts are non-refundable, non-cancelable and non-creditable. If you add Users or other billable units in excess to your Scope of Use during your Term, Neurapses will charge you for the increased number of Users or other billable units pursuant to the then-currently applicable rates in your next billing cycle.
c. Taxes
Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the fees are incurred. To the extent that any such taxes or duties are payable by Neurapses, you must pay to Neurapses the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Neurapses any such exemption information and Neurapses will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
I. LICENSE CERTIFICATIONS
You agree to provide, at Neurapses’ request, a signed certification that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use. If you exceed your Scope of Use, Neurapses may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt. This remedy is without prejudice to any other remedies available to Neurapses at law or equity, or under this Agreement.
J. NO-CHARGE PRODUCTS
Neurapses may offer certain Products to you at no charge, including free accounts and trial use (“No-Charge Products”). You may not use No-Charge Products for competitive analysis or similar purposes. Neurapses may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. If you are participating in Neurapses’s free 30-Day or longer term as agreed to by Neurapses Trial (“Trial”), this Agreement lasts thirty (30) days or such other longer term as agreed to by Neurapses from date of service authorization. At the end of the free Trial, if you choose not to purchase a Neurapses Product, you will immediately cease all use of the Product. Any data you enter into the Product, and any customizations made to the Product by or for you will be permanently lost unless you purchase a license or a subscription to use the same Product as the one covered by the Trial prior to the expiration of such Trial. To the maximum extent permitted by applicable law, Neurapses disclaims all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
K. OWNERSHIP AND FEEDBACK
a. Neurapses Technology
Products are made available on a limited license or access basis. No ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. Neurapses and its licensors retain all right, know-how, title and interest, including all intellectual property rights and trade secrets, in and to the Products, their look and feel, any related or underlying technology, and any modification or derivative work created by or for Neurapses (“Neurapses Technology”).
b. Feedback
From time to time, you may submit comments, information, questions, data, ideas, description of processes, or other information to Neurapses, including in the course of receiving Support and Maintenance, which Neurapses may anonymize (such communications, when anonymized, constitute “Feedback”). Neurapses may use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. Feedback specifically excludes your Confidential Information, and nothing in this Agreement limits Neurapses’ right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
c. Performance Metrics
Notwithstanding any other term of this Agreement, Neurapses may access and use, and shall retain all right, title and interest in transactional and performance data related to use of the Products in an aggregated and anonymized form based upon Analytics Data, so long as such data does not reveal the identity or traits of any particular individual person (“Performance Metrics”). Neurapses shall be permitted to use Performance Metrics for its internal business purposes to measure and enhance the functionality and operation of the Hosted Services and associated Neurapses products and services, including developing and improving algorithms, models, and other tools for such products and services.
L. CONFIDENTIALITY
Except as otherwise set forth in this Agreement, each Party agrees that all code, inventions, know-how, business, technical and financial information or any information specifically designated as confidential or that would reasonably be understood to be confidential or proprietary disclosed to such Party (“Receiving Party”) by the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”). Any Neurapses Technology, any commercial terms (including pricing) of this Agreement and any Order or Statement of Work (but not the mere existence of this Agreement) and any performance information relating to the Products shall be deemed Confidential Information of Neurapses without any marking or further designation. Except as expressly authorized herein, the Receiving Party will use (and will ensure that its employees, Affiliates, agents, contractors and any approved third parties use) reasonable efforts (which shall be no less than the efforts used to protect its own confidential or proprietary information of a similar nature) to prevent the disclosure of any Disclosing Party’s Confidential Information for any purpose other than as authorized by this Agreement unless authorized by the Disclosing Party. The Receiving Party’s non-disclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such Confidential Information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).
M. TERM AND TERMINATION
a. Term
This Agreement is in effect for as long as you have a valid Term under an Order, unless sooner terminated as permitted in this Agreement.
b. Termination for Breach
Either Party may terminate this Agreement before the expiration of the Term if the other Party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either Party may also terminate the Agreement before the expiration of the Term if the other Party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. If you terminate the Agreement pursuant to this Section, Neurapses will provide you with a refund of the prorated portion of the prepaid and unused fees for the Products that were to apply to the remainder of the unexpired Term, as calculated from the termination date through the remainder of the unexpired Term.
c. Effect of Termination and Survival
Except where an exclusive remedy may be specified in this Agreement, the exercise by either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by Law, or otherwise. Once the Agreement terminates, you (and your Users) will no longer have any right to use or access any Products, or any information or materials that Neurapses makes available to you under this Agreement, including Neurapses Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third-party systems operated on your behalf) and provide written certification to Neurapses that you have done so at our request. All provisions herein that, by their very nature, shall survive any termination or expiration of this Agreement will survive.
N. WARRANTY AND DISCLAIMER
a. Mutual Representation
Each Party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, this Agreement and each Order is entered into by an agent of such Party with all necessary authority to bind it to the terms and conditions of this Agreement.
b. Warranty by Neurapses
1. Performance Warranty
Neurapses warrants that the Products will perform in all material respects with Neurapses’s then current specifications set forth in the Documentation during the Term (“Warranty Period”). Neurapses warrants that Support and Maintenance will be provided in accordance with industry standards. For any breach of the above warranties, your exclusive remedy and Neurapses’s entire liability shall be: (a) for Neurapses to correct the Product errors that caused breach of the warranty; or, (b) if Neurapses cannot correct such breach in a commercially reasonable timeframe, you may terminate your Order for the specific Product module that is in breach and receive a refund of the prorated amount of the fees you prepaid for such Product module that were to apply to the remainder of the unexpired Term, as calculated from the termination date through the remainder of the unexpired Term.
2. Open Source Warranty
You acknowledge that certain components of the Products may be covered by so-called “open source” software licenses, which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format (“Open Source Components”). Neurapses represents and warrants that the Products ordered pursuant an Order are not subject to any Open Source Components that would create an obligation for Neurapses or you to make source code or data publicly available.
c. Warranty by You
1. Data Warranty
You represent and warrant that your use of the Hosted Services and all your Customer Data and its transfer to and use by Neurapses as permitted under this Agreement are at all times compliant with all Laws and do not violate any third party rights, including any intellectual property rights, privacy rights, or rights of publicity. Unless otherwise agreed by the Parties, you shall not submit to the Hosted Services or use the Hosted Services to collect any (i) protected health information, including as regulated by the Health Insurance Portability and Accountability Act (as same can be amended, “HIPAA”); (ii) cardholder data as protected by the Payment Card Industry Data Security Standard ( “PCI DSS”); or (iii) information subject to specific protection or to specific Laws (collectively, “Sensitive Data”). Neurapses expressly disclaims any liability of any kind that might arise from Sensitive Data being submitted to Neurapses. You also acknowledge that, unless otherwise agreed by the Parties, Neurapses is not acting as your Business Associate or subcontractor (as such terms are defined under HIPAA) and the Hosted Services are not HIPAA compliant or PCI DSS certified.
2. Restrictions
Except as otherwise expressly permitted in this Agreement, you shall not (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party; (b) use or incorporate the Products, disclose, create, use or knowingly allow use of a license code for the benefit of any third party; (c) use the Products to provide service bureau, timesharing services, or shared processing services other than for its own use; (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use; (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law; (f) publicly disseminate information regarding the performance of the Products; (g) use Neurapses Products to circumvent the terms and conditions of any agreement binding you with a third-party supplier. In particular, if you are using YouTube as a third-party in connection with the Products, you agree to be bound by YouTube’s Terms of Service (https://www.youtube.com/t/terms). The above restrictions are material to this Agreement and your failure to comply with any of them would constitute sufficient cause for termination.
d. Disclaimer
Neurapses expressly disclaims all warranties and representations of any kind that are not expressly stated herein. The duration of the statutorily required warranties, if any, are hereby limited to the shortest period permitted by Law. Neurapses will not be liable for problems inherent in use of the Internet or other systems outside of Neurapses control. To the maximum extent permitted by Law, neither Neurapses or its suppliers make any representation or warranty as to the reliability or accuracy of any Product or any of their content, or that: (a) the use of any Products will be secure, timely, uninterrupted or error-free; (b) the Products will operate in combination with any other system or data; (c) the Products will meet your requirements; (d) any stored data will be accurate or reliable or that any stored data will not be lost or corrupted (e) errors or defects will be corrected; or (f) any servers that make Hosted Services available are free of viruses or other harmful components.
O. LIMITATION OF LIABILITY
Except for either Party’s indemnification obligations hereunder, either Party’s willful misconduct or gross negligence, or your payment obligations hereunder, neither Party nor its Affiliates shall be liable for (i) any indirect, special, incidental or consequential damages of any kind arising out of or related to this Agreement (including lost profits), regardless of the form of action, whether in contract, tort, strict liability or otherwise, even if informed on the possibility of such damages in advance or (ii) amounts exceeding the fees actually paid by you for Products and Support and Maintenance in the twelve (12) months preceding the first act or omission giving rise to the liability (“Annual Fees”). Notwithstanding subparagraph (ii) above, Neurapses’ aggregate liability related to its material breach of Section 4.6 (Security) leading to unauthorized destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data shall not exceed three times (3x) the Annual Fees.
P. INDEMNIFICATION
a. Indemnity by Neurapses
Neurapses agrees to defend, indemnify, and hold you and your Affiliates, directors, officers and employees harmless from and against any demands, damages and costs awarded by a court of competent jurisdiction or agreed to settlement by Neurapses (including reasonable attorneys’ fees) arising from a third-party claim alleging that (i) Neurapses caused bodily injury (including death) or damages to real or tangible property; or (ii) a Product, when used as authorized under this Agreement, infringes any intellectual property rights (a “Claim”). Neurapses’s indemnification obligations under subparagraph (ii) do not apply: (1) if the Product is modified by any third party, solely to the extent the alleged infringement is caused by such modification; (2) if the Product is used in combination with any non-Neurapses product, software or equipment, solely to the extent the alleged infringement is caused by such combination; (3) to unauthorized use of Products; (4) to any Claim arising as a result of circumstances covered by your indemnification obligations in Section 16.2 (Indemnity by you)) or any third-party deliverables or components contained with the Products; (5) to any unsupported release of the Software; or (6) if you settle or make any admissions with respect to a Claim without Neurapses’s prior written consent. This Section states Neurapses’s sole liability and your exclusive remedy for any infringement of intellectual property rights in connection with any Product-or-items-provided-by-Neurapses-under-this-Agreement.
If your use of a Product is or is likely to be enjoined, if required by settlement, or if Neurapses determines such actions are reasonably necessary to avoid material liability, Neurapses may, at its sole option and discretion: (i) procure a license for your continued use of the Product in accordance with this Agreement; (ii) substitute a substantially functionally similar Product; or (iii) terminate your right to continue using the Product and refund any prepaid and unused amounts for the terminated portion of the Term.
b. Indemnity by You
You will defend, indemnify and hold harmless Neurapses, its directors, Affiliates officers and employees from and against any loss, cost, liability or damage, including attorneys’ fees, for which Neurapses becomes liable arising from or relating to any Claim relating to your violation of Section 14.3.1 above (Data Warranty).
c. Indemnification process
Either Party’s indemnification obligations are subject to the other Party receiving (i) prompt written notice of the Claim (but in any event notice in sufficient time for the indemnifying Party to respond without prejudice); (ii) the exclusive right for the Indemnifying Party to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of the indemnified Party at its expense. The Indemnifying Party may not, except with prior written consent of the Indemnified Party, enter into any settlement of an indemnified Claim that imposes a direct financial liability on the Indemnified Party or includes an admission of fault by the Indemnified Party.
Q. PUBLICITY AND LIMITED TRADEMARK LICENSE
You hereby grant to Neurapses a non-exclusive, non-transferable, royalty-free, worldwide and perpetual licence to use your trade name and logo (“Licensed Marks”) and allow Neurapses to identify you as a customer in promotional materials and on the Neurapses website. Neurapses may use the Licensed Marks included in the material you share with Neurapses or those publicly available on your website; provided that you can at all times supplement or amend your Licensed Marks instructions, or request Neurapses to stop using your Licensed Marks, by sending an email to media@Neurapses.com, and Neurapses will process your request promptly.
R. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND VENUE.
a. Neurapses’ legal entity
Who you are contracting with under this Agreement (“Neurapses”), where you should direct notices and what Law governs this Agreement, and which courts have jurisdiction, depend on where you are domiciled.
b. Governing Law; Venue
This Agreement will be construed in accordance with the applicable governing law above, without regard to choice or conflicts of law rules, and the Parties hereby consent to personal jurisdiction and venue therein. The Parties agree that this Agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transactions Act (UCITA) does not apply to this Agreement regardless of when or where adopted.
c. Dispute Resolution; Arbitration
In the event of any controversy or claim arising out of or relating to this Agreement, the Parties shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both Parties. If the Parties do not reach settlement within a period of sixty (60) days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The Parties will seek to mutually appoint an arbitrator. If the Parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each Party, and a third selected by the first two. Arbitration will take place in the city where the courts have jurisdiction under the table set forth in Section 16.1. All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
d. Injunctive Relief; Enforcement
Notwithstanding the provisions of Section 16.3, nothing in this Agreement shall prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
e. Export Restrictions
The Products might be subject to export restrictions by the United States government and other applicable regulations, as well as import restrictions by certain foreign governments, and you agree to comply with all applicable export and import Laws in your use of the Products. You shall not (and shall not allow any third party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority; or (e) into any country that does not have copyright laws that will protect the rights of Neurapses and any third-party software vendors from whom its licensing rights derive.
f. Notices
All notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered properly given if hand delivered, mailed first class mail (postage prepaid and return receipt requested) or sent by a recognized courier service (e.g., Federal Express, DHL, UPS) (i) if to you: to the attention of “Legal” at the address listed in the Order (or to such other address as you may have designated to Neurapses in writing in accordance with this Section), and (ii) if to Neurapses: to the attention of “Legal” at the applicable address listed in the table above. Neurapses may also provide notice to you via email or through your account.
S. GENERAL PROVISIONS
a. Force Majeure
Neither Party shall be liable to the other Party for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to a Force Majeure Event and without the fault or negligence of the Party so failing or-delaying.
“Force Majeure Event” means unforeseen events which are beyond the reasonable control of such Party, including civil commotion, labor disturbances, war or act of terrorism, natural disaster and epidemic, refusal of a license by a government agency, and failure or diminishment of public utilities or data networks
b. Assignment
This Agreement may not be assigned or transferred by either Party without the prior written consent of the other Party, except that no consent shall be required for an assignment of this Agreement by a Party pursuant to a change of control or a merger or sale of substantially all of such Party’s assets or outstanding stock or to a wholly-owned subsidiary or Affiliate of such Party, or to a wholly owned subsidiary or Affiliate of such Party’s controlling (100%) owner, provided, that, if (a) the assignee is a competitor of the other Party, or (b) the other Party reasonably determines that such assigning Party’s assignee will not have sufficient capital, assets, resources and expertise to perform its obligations hereunder, then such consent shall be required. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns.
Neurapses may modify the terms herein from time to time by posting a revised version on the Neurapses website and the modified terms will become effective upon posting.
d. Entire Agreement and Severability.
This Agreement is the entire agreement between you and Neurapses relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held invalid by an arbitrator or court of competent jurisdiction, such provision will be severed, and the remainder of the Agreement will remain in full force and effect and will be construed to effectuate the Parties’ intent to the maximum extent possible.
e. Waiver
No failure or delay by the injured Party to this Agreement in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity.
f. Independent Parties
The Parties are independent contractors. This Agreement shall not be construed as constituting either Party as a partner of the other or to create any other form of legal association that would give on either Party the express or implied right, power or authority to create any duty or obligation of the other Party.