THE TERMS AND CONDITIONS SET FORTH BELOW GOVERN YOUR ACCESS TO AND/OR USE OF ANY NEUROTRACK SERVICES (THE “SERVICES”) PROVIDED THROUGH THE WEBSITES TO WHICH YOU ARE GIVEN ACCESS BY NEUROTRACK (THE "SITE(S)"). THE SERVICES INCLUDE THE SITES AND ANY CONTENT AND MATERIALS, INCLUDING EXAMS AND OTHER EDUCATIONAL AND INFORMATIONAL MATERIALS, PROVIDED ON THE SITE(S) OR OTHERWISE PROVIDED BY NEUROTRACK TO YOU (COLLECTIVELY THE “NEUROTRACK CONTENT”). IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE SERVICES (INCLUDING THE SITE(S) OR NEUROTRACK CONTENT). IF YOU DISAGREE WITH ANY OF THESE TERMS, NEUROTRACK DOES NOT GRANT YOU ANY LICENSE OR RIGHT TO USE ANY OF THE SERVICES.
DISCLAIMER AND ACKNOWLEDGEMENT RE: SERVICES. The Neurotrack Services (including Neurotrack Content) are intended to be for educational and informational purposes only. NEUROTRACK AND/OR THE SERVICES DO NOT AND CANNOT DIAGNOSE YOUR HEALTH CONDITION, PROVIDE A MEDICAL OPINION, AND/OR SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. You acknowledge and agree that it is Your responsibility to consult with a doctor or other appropriately licensed professional if You have any questions or concerns about potential medical conditions as a result of the information You receive as part of the Services.
ARBITRATION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 9 (“MANDATORY ARBITRATION AND CLASS ACTION WAIVER”) BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, AND RATHER THAN CLASS ACTIONS OR CLASS ARBITRATIONS OF ANY KIND. PLEASE REVIEW THESE PROVISIONS CAREFULLY AS YOU ARE AGREEING TO GIVE UP IMPORTANT LEGAL RIGHTS.
1. Registration; Authorized User; Payment. You will only be able to access and use the Services by submitting a registration application for consideration by Neurotrack, which Neurotrack may accept or reject in its discretion. If multiple options for Service selections are provided by Neurotrack, Your application will need to identify the particular Service(s) for which You are applying. If any of the Service options for which You are applying require payment from You, the terms and conditions of payment will be presented to You as part of the registration process (the “Payment Terms”). Such Payment Terms are hereby incorporated into and made part of these Terms. As part of the registration process You will be required to create Your own user profile, including providing personal and other information(including but not limited to Your name, e-mail address, physical address and telephone number). Acceptance of Your registration application for one Service offering does not guarantee acceptance of another Service offering; Neurotrack may make acceptance decisions independently for different Services offerings. If Neurotrack accepts Your registration application, it will notify You by e-mail that You are an Authorized User of the Services for which You applied (an “Authorized User”)during the Authorized Period (defined below). The registration is for Your individual use only and may not be shared with any other person. For as long as You remain an Authorized User, You agree to comply with these Terms (as they may be modified from time to time).
2. Services; Ownership, License and Use Restrictions
2.1. Ownership; Confidentiality. Neurotrack or its licensors own all rights in or to the Services (including without limitation the Site(s) and the Neurotrack Content), as well as the underlying Neurotrack technology (“Neurotrack Technology”), and all Intellectual Property Rights in all of the foregoing. “Intellectual Property Rights” means patents, copyrights, moral rights, trademarks, trade secrets, know-how, and legally protectable methods, processes, systems, operations, and technologies, and other comparable rights worldwide. Except as expressly granted under these Terms, You have no rights or license of any kind in or to any of the foregoing. Except to the extent Neurotrack has made any portion of the Neurotrack Content or other aspect of the Services available to the general public, the Services and the Neurotrack Technology are the confidential information of Neurotrack (“Neurotrack Confidential Information”), and You will not disclose such information to others except as expressly provided in Section 2.2 (“License”) below.
2.1.1. Disclaimers as to Third Party Sites. The Site(s) and/or Neurotrack Content may contain hyperlinks to third party websites and/or materials (“Third Party Sites”). Any content or services provided on or through such Third Party Sites are not part of the Neurotrack Services (including the Neurotrack Content). You acknowledge and agree that Neurotrack is not responsible for and does not endorse or accept any responsibility for the content or use of such third party sites or services provided through them, including the accuracy or reliability of any information, data, opinions, advice or statements made on these sites. You further understand that such third party sites and any services provided by them are governed by separate agreements between You and the third party. Your dealings with other entities promoted on or through the Neurotrack Services, including payment for and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between You and such other entity. You agree that Neurotrack will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities and their sites, content or services through Neurotrack’s Services.
2.2. License. The Services are licensed (not sold) to You. Subject to Your compliance with these Terms, and solely during the Authorized Period (as defined below), Neurotrack grants You a limited, personal, non-exclusive and non-transferable license (i) to access and use the Services solely for Your personal use and (ii) to download and print any Neurotrack Content provided to You as part of the Services for Your personal use (including use by any personal health providers, advisors, caretakers, counselors and similar third parties on Your behalf (“Authorized Providers”). Once the Authorized Period has ended, You may continue to use any Neurotrack Content downloaded by You during the Authorized Period solely for Your personal use and use by Authorized Providers acting on Your behalf. No right of any kind is granted to You with regard to the Neurotrack Technology. Except as expressly set forth above regarding the Neurotrack Content, You acknowledge and agree that You have no right, and may not permit any other person, to download, copy, reproduce, cache, modify, edit, create derivative works of, reverse engineer, alter, enhance, or in any other way exploit the Services, the Site(s), the Neurotrack Content, the Neurotrack Technology, or any Intellectual Property Rights in any of the foregoing, in whole or in part, in any manner. Except as expressly stated in this Section 2.2 (“License”), You acknowledge and agree that You have no right, title or interest in or to the Services, the Site(s), the Neurotrack Content, the Neurotrack Technology or any Intellectual Property Rights in any of the foregoing.
2.3. Further Restrictions. You agree not to misuse the Services or any portion thereof. For example, You agree that You will not use or attempt to exploit the Services (including the Site(s) and Neurotrack Content), the Neurotrack Technology, and the Intellectual Property Rights in the foregoing for any commercial purpose. You further agree that, except to limited extent expressly provided in Section 2.2 (“License”) above as to Authorized Providers, You will not provide, divulge, disclose, or make available to, or permit the use of the Services by any third party; nor circumvent or disable any technological features or measures in the Services. Without limiting the generality of any of the foregoing You further agree that You will not, and will not attempt to, use the Services to do the following things: (i) probe, scan, or test the vulnerability of any system or network; (ii) breach or otherwise circumvent any security or authentication measures; (iii) access, tamper with, or use non-public areas of the Service, shared areas of the Service You have not been invited to, Neurotrack’s (or our service providers’) computer systems; (iv) interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services; (v) plant malware or otherwise use the Services to distribute malware; (vi) access or search the Services by any means other than our publicly supported interfaces (for example, “scraping”); (vii) send unsolicited communications, promotions or advertisements, or spam; (viii) send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”; (ix) publish anything that is fraudulent, misleading, or infringes another’s rights; (x) promote or advertise products or services other than Your own without appropriate authorization; (xi) impersonate or misrepresent Your affiliation with any person or entity; (xii) publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred; or (xiii) violate the law in any way, or to violate the privacy of others, or to defame others.
2.4. Authorized Period; Termination; Survival. The license grant set forth above is only in effect from the time You become an Authorized User until such time as Neurotrack terminates this license or it terminates automatically in accordance with these Terms (the “Authorized Period”). The Authorized Period will end automatically if You breach any of Your obligations under these Terms. In addition, Neurotrack has the right to suspend the Services and/or otherwise terminate the license to You in its sole discretion at any other time, with or without cause and with or without notice. Without limiting the foregoing, Neurotrack may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that it chooses. If Neurotrack provides notice it will do so to the e-mail address You have provided in Your Authorized User profile. You can stop using the Services at any time by contacting email@example.com and requesting that they cancel Your Authorized User registration.
2.4.1. Termination of Paid License. If (i) You have obtained this license on a basis that requires payment from You to Neurotrack, (ii) You are not in breach of Your obligations under these Terms, and (iii) Neurotrack exercises its right to terminate the license, then Neurotrack will refund a prorated amount of the fees paid by You for the remainder of the period for which payment has been made.
2.5. Modification, Suspension or Discontinuance of Services. Neurotrack may at any time in its discretion, and without notice or liability, (i) modify the Services, including any functionality provided as part of the Services, (ii) temporarily suspend (in whole or part) access to the Services and/or (iii) discontinue the Services in whole or in part. Without limiting the foregoing, Neurotrack may at any time in its discretion, and without notice or liability, discontinue, suspend, restrict or modify Your individual access to or use of the Services in whole or in part.
2.6. Right to Audit; ID Security. Neurotrack reserves the right to audit Your use of the Services. You will be responsible for ensuring the security and confidentiality of all access codes, log-on identifiers, usernames and passwords, assigned to, or created by, You in order to access or use any Services (an “ID”), and You will not provide any ID to any other person. You accept that You will be solely responsible for all access and use of the Services that occur under Your ID. You agree to promptly notify Neurotrack upon becoming aware of any unauthorized access to or use of Your ID or the Services. You will provide all reasonable assistance to Neurotrack to bring an end to such unauthorized access or use.
5. Feedback. You may, during the Term, provide Neurotrack with oral feedback and/or written feedback related to Your use of the Services, Site, Application, or Content, including, but not limited to, a report of any errors which You may discover in the foregoing or any related documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by You to Neurotrack concerning the Services, Site, Application, or Content and any information reported automatically through the Services to Neurotrack (“Feedback”) will be the property of Neurotrack. You agree to assign, and hereby assign, all rights, title and interest worldwide in the Feedback, and the related intellectual property rights, to Neurotrack and agree to assist Neurotrack, at Neurotrack’ expense, in perfecting and enforcing such rights.
6. Disclaimer of Warranties. THE SERVICES (INCLUDING THE SITE(S) AND THE NEOTRACK CONTENT) ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEUROTRACK DISCLAIMS ALL WARRANTIES REGARDING THE SERVICES (INCLUDING THE SITES AND THE NEUROTRACK CONTENT), WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEUROTRACK DOES NOT MAKE ANY REPRESENTATION OR PROVIDE ANY WARRANTY RELATING TO RESULTS OF USING THE SERVICES. Your access to and use of the Services is at Your own risk. Neurotrack does not represent, warrant, or guarantee that the Services will be provided uninterrupted, error-free, virus-free, or that defects will be corrected. All of the foregoing disclaimers are to the maximum extent permitted by applicable law. If applicable law requires any warranties with respect to the Services, all such warranties are limited in duration to the longer of thirty (30) days from the date of Your first use or the minimum duration allowed by law; but some jurisdictions do not allow limitations on how long an implied warranty lasts, so this limitation may not apply to You. You may also have other rights which vary by jurisdiction, and which are not modified by this clause to the extent that doing so would breach such applicable law.
7. Limitation of Liability.
7.1. Exclusion of Consequential Damages and Limit of Liability. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, NEUROTRACK WILL NOT BE RESPONSIBLE FOR ANY LOST PROFITS, REVENUES, OR DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, RELATED TO OR ARISING OUT OF THESE TERMS OR YOUR USE OF THE SERVICES (INCLUDING THE SITES(S) AND/OR THE NEUROTRACK CONTENT), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEUROTRACK’S TOTAL LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICES (INCLUDING THE SITE(S) AND/OR THE NEUROTRACK CONTENT) IS LIMITED TO THE GREATER OF ONE HUNDRED DOLLARS OR THE FEES PAID BY YOU DURING THE TWELVE MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
7.2. Allocation of Risk and Material Term. THIS SECTION 7 (“LIMITATION OF LIABILITY”) WILL SURVIVE TERMINATION OF THE AGREEMENT. THE PROVISIONS OF THIS SECTION 7 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND ARE AN INTRINSIC PART OF THE BARGAIN BETWEEN THE PARTIES. THE FEES PROVIDED FOR IN THIS AGREEMENT REFLECT THIS ALLOCATION OF RISKS AND THE LIMITATION OF LIABILITY AND SUCH LIMITATION WILL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
8. Local Laws; Export Control. The Services may not be appropriate or available for use outside of the United States of America. The Services are controlled or operated (or both) from the United States, and is not intended to subject Neurotrack to any non-U.S. jurisdiction or law. Any use of the Services is at Your own risk, and You must comply with all applicable laws, rules and regulations in doing so.
9. Arbitration Clause and Class Action Waiver (“Arbitration Provision”)
9.1. Informal Efforts to Resolve Dispute. If a dispute arises between You and Neurotrack arising out of or relating to the Services and/or these Terms, You should first attempt to resolve it by sending details of Your Claim to Support@Neurotrack.com, together with Your contact information for a response, to the address or email address listed for notices in these Terms. We will attempt in good faith to resolve all Claims submitted this way within thirty (30) days of receipt. “Claim” means any claim, complaint, dispute, or controversy between You and Neurotrack that arises out of or relates to the Services (including the Site(s) and/or Neurotrack Content) and/or these Terms.
9.2. Agreement to Binding Individual Arbitration; Class Action Waiver. EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND NEUROTRACK, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT YOU AND NEUROTRACK ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. SUCH DISPUTES INCLUDE, WITHOUT LIMITATION, DISPUTES ARISING OUT OF OR RELATING TO INTERPRETATION OR APPLICATION OF THIS ARBITRATION PROVISION, INCLUDING THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THE ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION. ALL SUCH MATTERS WILL BE DECIDED BY AN ARBITRATOR AND NOT BY A COURT OR JUDGE.
YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. THE ARBITRATION CAN ONLY DECIDE CLAIMS BETWEEN YOU AND US, AND MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS.
9.3. Opt-Out of Arbitration Provision. You may opt out of this agreement to arbitrate by emailing support@Neurotrack.com with Your first name, last name, e-mail address, street address and telephone number within thirty (30) days of accepting this agreement to arbitrate, with a statement that You decline this Arbitration Provision.
9.4. Arbitration Procedures. The arbitration will be administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules, as amended by these Terms. The Consumer Arbitration Rules are available online at https://www.adr.org/consumer. There will be one (1) arbitrator, who will be a trial attorney with not less than fifteen (15) years’ experience in technology and consumer products. If You and We cannot agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the AAA will pick a neutral arbitrator from its AAA National Roster of Arbitrators who has the required qualifications. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by You or by us that an in-person hearing is appropriate. All proceedings will be conducted in the English language. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the American Arbitration Association or by the arbitrator. The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude You from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for You.
9.5. Time Limitation on Claims. Regardless of any statute or law to the contrary, ANY CLAIM OR CAUSE OF ACTION ARISNG OUT OF OR RELATED TO YOUR USE OF THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR ELSE YOU WAIVE THE RIGHT TO PURSUE ANY SUCH CLAIM AND THAT CLAIM OR CAUSE OF ACTION WILL BE BARRED FOREVER.
9.6. Confidentiality of Arbitration and Decision. You and We shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to Your or Our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
10. Indemnification. You agree to indemnify, defend, and hold harmless Neurotrack and its affiliates, and its and their directors, officers, employees, representatives and agents, from and against all direct or indirect claims, damages, losses and costs that arise from or relate to Your violation of these Terms.
11.1. Force Majeure. Neither party will be liable to the other for any breach of these Terms which arises because of any circumstances which the defaulting party cannot reasonably be expected to control (which shall include but not be limited to, any act of god (including pandemic), fire, casualty, flood, war, labor disputes, governmental action, failure of public services, interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing) but, for the avoidance of doubt, shall not include shortage or lack of available funds, provided it promptly notifies the other party of such circumstances.
11.2. Assignment. You may not assign these Terms or any of Your rights or obligations hereunder by operation of law or otherwise, and any such attempt is void. Neurotrack may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
11.3. Electronic Communications. Information communicated through the Site(s) as part of the Services constitutes an electronic communication. When You communicate with Neurotrack through the Site(s) or other forms of electronic media, such as e-mail, You are communicating with Neurotrack electronically. You agree that Neurotrack, on behalf of itself and others who may be involved with delivering the Services, may communicate electronically by e-mail and/or may make communications available to You by posting them on the Site(s), and that such communications, as well as notices, disclosures, agreements and other communications that we provide to You by such means are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by Neurotrack.
11.4. Notices. Notices and communications to Neurotrack must be sent to firstname.lastname@example.org or to the following address: Neurotrack Technologies, ATTN: Legal, 399 Bradford Street, Suite 101, Redwood City, CA 94063. Neurotrack will send any notices to You at the e-mail address You provided in Your Authorized User profile.
11.5. Notice for California Users. Under California Civil Code Section 1789.3, California users of the Services who are not paying a fee for the Services are entitled to the following specific consumer rights notice: The headquarters of Neurotrack is currently located at 399 Bradford Street, Suite 101, Redwood City, CA 94063 (650)209-4299. If You have a complaint regarding the Services or want to request a paper copy of these Terms, please contact Neurotrack by writing to the address above, by sending an e-mail to support@Neurotrack.com, or by calling the number provided in this section. The Consumer Information Center of the Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N-112, Sacramento, CA 95384, or by telephone at (916)445-1254 or (800) 952-5210.
11.6. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of California as applied to agreements entered into and to be performed entirely within the State of California between California residents, without giving effect to any conflict of law principles that would require the application of the substantive or procedural laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement.