LICENSENeuronetrix COGNISION™ System
Copyright © 2003-2015 Neuronetrix Solutions, LLC. All rights reserved.
COGNISION™ is a trademark of Neuronetrix Solutions, LLC. All rights reserved.
1 End User License Agreement
1.1 This End User License Agreement (“Agreement”) is a legal contract between Neuronetrix Solutions LLC (“Neuronetrix”) and the individual or company, (“Customer”) that is installing the COGNISION Software.
1.2 By installing or using the Software, Customer agrees to all terms and conditions of this Agreement unless Customer and Neuronetrix have expressly agreed otherwise in writing.
1.3 This Agreement describes the terms and conditions governing Customer’s use of the Software, including Content, and gives Customer certain rights and responsibilities depending on the type of license selected, purchased, or subscribed to, as more fully described herein.
1.4 This Agreement includes by reference:
2 Definitions
2.1 The following terms shall have the definitions set forth below for the purposes of this Agreement:
2.2 Other terms are defined in Sections where they appear.
3 License Grant, Scope of Use, and Restrictions
3.1 Subject to the terms and conditions set forth herein, the parties agree as follows:
3.1.1 Neuronetrix shall issue one or more End User Passwords to Customer. Any End User Passwords issued to Customer shall be held in strict confidence by Customer and Customer’s End Users, and Customer hereby acknowledges that it is jointly and severally liable and responsible for any use or misuse of the End User Passwords issued to it.
3.1.2 Neuronetrix reserves the right to disable and replace any End User Password for any reason, including, without limitation, its belief that the security with respect to an End User Password has been or will be compromised.
3.1.3 Neuronetrix grants to Customer and End Users a limited, non-transferable, non-exclusive, revocable license (“License”) to download, install, store, operate, and use the object code version of the current release of the Client Software on an equivalent number of computers as the number of End Users registered to that Customer.
3.1.4 Neuronetrix grants to Customer and End Users a limited, non-transferable, non-exclusive, revocable license to use the Software while being connected to the Server in a manner consistent with the COGNISION SYSTEM USER GUIDE.
3.1.5 Neuronetrix hereby reserves any and all rights to the Server or the Software not expressly and explicitly granted in this Agreement.
3.1.6 Customer shall not permit anyone other than the End Users to have access or use the End User Passwords and/or the Software.
3.1.7 Except as expressly permitted in this Agreement, Customer agrees not to sublicense, license, rent, sell, loan, give, or otherwise distribute all or any part of the Software or Client Software or access to the Server.
3.1.8 Customer agrees not to reverse engineer, disassemble, decompile, modify, or alter the Software or Client Software or any copy thereof, in whole or in part. Further, Customer agrees that neither it nor any other person or entity (including, without limitation, End Users) that has access to the Server, Software, and/or Client Software through Customer or Customer’s End User Passwords will not reverse assemble, reverse compile, or otherwise translate the object code version of the Client Software or any other Neuronetrix property.
4 Term and Termination
4.1 The “Term” of this Agreement and associated License shall commence upon initial installation of the Client Software and shall continue in full force until Licensee stops using the Software and uninstalls the Client Software from all Customer computers or until terminated in accordance herewith.
4.2 Either party shall have the right to terminate this Agreement upon thirty (30) days written notice following the occurrence of an Event of Default. For purposes of this Agreement, each of the events set forth below shall constitute an “Event of Default”:
4.2.1 Customer’s failure to pay any charges or fees set forth in this Agreement and the failure to pay has not been cured within thirty (30) days following the date of written notice from Neuronetrix.
4.2.2 A party’s material breach of any term or provision of this Agreement that is not cured within thirty (30) days of receiving notice from the non-breaching party, which notice specifies such material breach and demands cure thereof.
4.3 Notwithstanding the above provisions, termination for material breach of Sections 3 and 14 will be effective upon written notice.
4.4 The parties hereto reserve the right to mutually terminate portions of the Agreement for any or no reason, without terminating the entire Agreement, provided that the parties are able to negotiate to a mutually agreed upon consideration for the remaining services provided under the Agreement.
4.5 Upon expiration or termination of this Agreement, Customer shall immediately cease use of the Software and/or Client Software, and the End User Passwords, and uninstall the Client Software from all Customer computers.
4.6 Upon expiration or termination of this Agreement, Neuronetrix may disable the End User Passwords and restrict Customer’s access to the Software and Content.
4.7 Immediately upon a request in writing by a party or upon expiration or termination of this Agreement, each party will turn over to the other all Confidential Information received from the other and all documents, notes or other media containing any such Confidential Information and any and all copies or extracts thereof. The recipient shall advise the discloser in writing that the foregoing has been accomplished. Notwithstanding any such return of the Confidential Information, the recipient shall continue to be bound by its obligations under this Agreement.
5 Rights and Restrictions to Software, Content, and Shared Information
5.1 Customer agrees that the Software and Client Software and related support documentation provided by Neuronetrix (collectively, the “Neuronetrix Materials”), including all copies of the Neuronetrix Materials, and all copyright and all other intellectual property rights in or relating to the Neuronetrix Materials are and shall, as between the parties to this Agreement, remain the property of Neuronetrix.
5.2 Subject to the conditions set forth in Section 5.3, the Content shall, as between the parties to this Agreement, remain the property of Customer.
5.3 Subject to the conditions set forth in Section 6 and 14, Customer hereby grants to Neuronetrix a non-exclusive, worldwide, perpetual, irrevocable, worldwide, non-exclusive, royalty-free license to use, copy, reproduce, perform, display, and store the Content.
5.4 Neuronetrix may make available features that allow Customer and/or End Users to share certain Content or other materials (collectively referred to as “Shared Information”).
5.5 By sharing the Shared Information and to the extent that the Shared Information is owned by Customer (and not Neuronetrix), Customer hereby grants Neuronetrix a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sublicenseable, and transferable license to use, copy, reproduce, perform, display, store, distribute, and prepare derivative works of the Shared Information in connection with the COGNISION System. Customer also hereby grants each user of the COGNISION System a perpetual, irrevocable, worldwide, non-exclusive, royalty-free license to access the Shared Information and to use, copy, reproduce, perform, display, and store such Shared Information as permitted through the functionality of the COGNISION System.
5.6 Customer is responsible for all Content uploaded by Customer to the Servers. Neuronetrix does not control the Content stored on the Servers, have any obligation to monitor such Content for any purpose, or perform any virus-checking or other scanning for harmful code which may damage or otherwise affect the Content. Therefore, Neuronetrix is not responsible for any deleted, lost, damaged, or otherwise unrecoverable Content on the Servers.
5.7 Customer agrees that the Customer account may be subject to limitations on storage, quantity, size, and/or format of any Content. Neuronetrix reserves the right to change such limitations from time to time, and the changes will be effective upon notification by Neuronetrix to Customer via email, website, or other means.
6 HIPAA Compliance for Covered Entities and/or Business Associates
6.1 In performing Customer’s obligations under this Agreement, and to the extent that Customer meets the definition of a “Covered Entity” or a “Business Associate” under the Health Insurance Portability and Accountability Act of 1996 and the amendments and regulations promulgated thereunder (“HIPAA”), and to the extent that Customer’s Content includes protected health information (“PHI”), as such term is defined in HIPAA, Customer represents and warrants that it is and shall remain HIPAA compliant during the Term and that it will comply with the HIPAA requirements to protect the privacy and security of the PHI and provide individuals with certain rights with respect to their PHI.
6.2 To the extent Neuronetrix has access to or possesses any Content which may include PHI, Neuronetrix agrees to implement reasonable technical and physical security measures to safeguard the security the confidentiality of such information.
7 Fees
7.1 Customer shall pay to Neuronetrix any and all fees associated with Customer’s use of the Software or the COGNISION Hardware System in accordance with the terms of this Agreement and any other written agreement between the parties related to such use including quotations, proposals, purchase orders, sales orders, service agreements, and contract research agreements (collectively referred to as “Sales Order”). Subject to the terms of the Sales Order, Neuronetrix may change its prices on any Sales Order at any time provided thirty (30) days advance notice of the change.
7.2 Notwithstanding the termination of this Agreement, Customer shall continue to be obligated to pay to Neuronetrix all fees due as set forth in this Agreement that, as of the date of such termination, are due and payable to Neuronetrix.
7.3 Any payment under this Agreement not received within thirty (30) days of the date due shall bear interest from the date due at the rate of one (1%) per month or the maximum rate permitted by applicable law, whichever is less. Further, in the event that any payment due to Neuronetrix is collected at law or through an attorney-at-law, or under advice therefrom, or through a collection agency, Customer agrees to pay all costs of collection, including, without limitation, all court costs and reasonable attorney’s fees.
8 Support
8.1 Support for the Software is available to Customer as described in the COGNISION SYSTEM USER GUIDE.
9 Disclaimer of Warranties
9.1 Neuronetrix warrants that the Software and Client Software will substantially conform to the Neuronetrix’s standard functional specifications at all times during the Term. This warranty shall not apply (i) if the Software are not used in accordance with this Agreement or the COGNISION SYSTEM USER GUIDE; or (ii) if the defect is caused by a modification to the Software by Customer. Neuronetrix does not warrant that the Software will operate uninterrupted or that it will be free from minor defects or errors that do not materially affect such performance.
9.2 The representations and warranties given by Neuronetrix in this Agreement extend solely to Customer and to no third party whatsoever, including, without limitation, End Users, or Customer’s clients.
9.3 Except as expressly provided in this Section, no warranty or assurance, expressed, implied, or statutory, is given by Neuronetrix with respect to the Software or any other matter, including without limitation, fitness for a particular purpose.
9.4 Customer understands, agrees, and acknowledges that, notwithstanding any statement made by any person or entity otherwise, the Software is not certified as a medical device for primary diagnosis. The Software and the use thereof, do not replace the independent judgment of a medical physician. Customer understands, agrees, and acknowledges that it shall not rely on Neuronetrix, the Software, or the use thereof, to replace, modify, or determine the independent judgment and diagnosis of a medical physician.
10 Limitation of Liability
10.1 The sole remedy of Customer, and Neuronetrix’s sole obligation, in the event of any warranty claim or any other contract deficiency shall be for Neuronetrix to correct such deficiency in a timely and practical manner, or if such correction is not provided or does not meet the functional specifications of the Software, to refund an equitable part of the Customer’s fee payments for the use of the Software determined in reference to prior use and impact of the deficit.
10.2 Under no circumstances shall Neuronetrix, Neuronetrix’s affiliates, officers, directors, employees, agents, and third-party vendors be liable to Customer, whether in contract, tort, or under any other legal theory (including, without limitation, strict liability, and negligence for lost profit or revenues, loss or interruption of use, lost or damaged data, reports, documentation, or security, or similar economic loss, or for any indirect, special, incidental, consequential, or similar damages, arising out of or in connection with the performance or non-performance of this Agreement, or for any claim made against Customer by any other party, even if Neuronetrix has been advised of the possibility of such claim.
10.3 In no event shall the liability of Neuronetrix, Neuronetrix’s affiliates, officers, directors, employees, agents, and third-party vendors for any loss or damages relating to or arising out of this Agreement, in the aggregate exceed the lesser of the actual damages or the amount paid by Customer to Neuronetrix relating to the affected Software or validly due and owing by the Customer under this Agreement.
10.4 No action, regardless of form, arising out of or in connection with this Agreement may be brought by Customer more than one (1) year after the first to occur of (i) the termination or expiration of this Agreement; or (ii) the event giving rise to such cause of action.
10.5 Notwithstanding the provisions set forth above, Neuronetrix shall have no obligation regarding claims arising from uses of the Software that are not authorized by this Agreement.
11 Representations and Warranties of Customer
11.1 Customer represents and warrants to Neuronetrix that Customer will maintain the strict confidentiality of the End User Passwords and shall only disclose the End User Passwords as permitted in this Agreement.
11.2 Customer represents and warrants to Neuronetrix that the use by Neuronetrix of any Content as contemplated by this Agreement will not infringe on any valid and subsisting rights (including, without limitation, privacy rights and intellectual property rights) of any third party under the laws of the United States or any of its states.
12 Indemnification by Customer
12.1 Customer will defend, indemnify, and hold Neuronetrix and its directors, officers, employees, consultants, and agents (each, a “Neuronetrix Indemnified Party”) harmless from all liabilities, damages, and losses incurred by the Neuronetrix Indemnified Party (including all reasonable costs and expenses, including reasonable attorney’s fees) to the extent arising out of any legal action based on any claim by a third party to the extent resulting from (i) any breach of this Agreement by Customer; (ii) Customer’s use or an End User’s use of the Software to make medical diagnoses or medical analyses or determinations; (iii) Customer’s use or an End User’s use of the Software with other software or hardware, provided such software or hardware has not been recommended by Neuronetrix; or (iv) Customer’s modification of the Software.
13 Trademarks and Publicity
13.1 Any use of the name, trade name, trademark, or service mark of Neuronetrix or any of its affiliates by Customer in any promotion, advertising or other similar materials or in any publicity or news releases shall be subject to the prior written approval of Neuronetrix and its affiliates, as the case may be.
13.2 Any use of the name, trade name, trademark, or service mark of Customer by Neuronetrix in any promotion, advertising or other similar materials or in any publicity or news releases shall be subject to the prior written approval of Customer, provided, however, Neuronetrix may place Customer’s logo on its website.
14 Confidential Information
14.1 Each party (the “Receiving Party”) expressly acknowledges that in negotiating and/or performing under this Agreement the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business or technology which is confidential or proprietary in nature and not intended to be disclosed to any third party (including, without limitation, source code, trade secrets, patents, patent applications, copyrights, know-how, processes, ideas, inventions (whether patentable or not), formulas, other computer programs, databases, technical drawings, designs, algorithms, technology, circuits, layouts, designs, interfaces, materials, schematics, names and expertise of employees and consultants, any other technical, business, financial, customer information, product development plans, supplier information, forecasts, strategies and other confidential information), which to the extent previously, presently or subsequently disclosed to the Receiving Party is hereinafter referred to as “Confidential Information” of the Disclosing Party.
14.2 The Receiving Party shall (a) hold the Disclosing Party’s Confidential Information in confidence and take all commercially reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Receiving Party usually employs with respect to its own comparable confidential materials) (b) except as expressly provided herein, not disclose any such Confidential Information or any information derived therefrom to any third person, (c) not make any use whatsoever at any time of such Confidential Information except as necessary to exercise their rights and perform their obligations under this Agreement in strict accordance with the terms and conditions of this Agreement, and (d) except as expressly set forth herein, not copy or reverse engineer, or attempt to derive the composition or underlying information, structure or ideas of any such Confidential Information
14.3 The Disclosing Party agrees that Section 14.2 shall not apply with respect to Confidential Information of the Disclosing Party that (i) is or becomes generally available to the public through no improper action or inaction by the Receiving Party or any of its affiliates, agents, consultants or employees, (ii) is released from confidential treatment by written consent of the Disclosing Party, (iii) was rightfully disclosed to the Receiving Party by a third party provided the Receiving Party complies with restrictions imposed by the third party, or (iv) was independently developed by the Receiving Party without the use of or reference to the Disclosing Party’s Confidential Information. Each Party, with prior written notice to the Disclosing Party and after providing the Disclosing Party reasonable opportunity to challenge or limit such disclosure, may disclose such Confidential Information to the minimum extent possible that is required to be disclosed to a governmental entity or agency, or pursuant to the lawful requirement or request of a governmental entity or agency, provided that reasonable measures are taken to guard against further disclosure, (including without limitation, seeking appropriate confidential treatment or a protective order, or assisting the other Party to do so) and has allowed the Disclosing Party to participate in any proceeding that requires the disclosure.
15 Miscellaneous
15.1 Audit: Neuronetrix shall have the right, at its own expense, to audit Customer’s use of the Software to determine conformance with general uses of the Software and the other limitations and restrictions on use contained in this Agreement. Any such audit shall be conducted upon reasonable written notice, at an agreed upon time during the regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s or business activities.
15.2 Assignment: Except as otherwise set forth herein, Customer may not assign this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of the Neuronetrix. Nothing herein shall prohibit Neuronetrix from freely assigning this Agreement without Customer’s permission or engaging independent contractors or contract personnel to perform its obligations under this Agreement.
15.3 Successors and Assigns: Except as otherwise provided in this Agreement, this Agreement shall inure to the benefit of and be binding upon the parties and their respective permitted assigns.
15.4 Compliance with Laws: Without limiting any other provision of this Agreement, in their performance of this Agreement, each party covenants with the other that it shall comply with all federal, state and local laws, rules, ordinances, regulations and all administrative and judicial interpretations applicable to it.
15.5 No Inducement: This Agreement has been negotiated in good faith through arm’s length negotiations. Nothing contained in this Agreement, including any compensation paid or payable, is intended or shall be construed: (i) to require, influence or otherwise induce or solicit a party or any of its affiliates regarding referrals of business, or recommending the ordering of any items or services, of any kind whatsoever to any of the other parties or their affiliates, or to any other person; or (ii) to interfere with a patient’s right to choose his or her own health care provider, or with a physician’s medical judgment regarding the ordering of any items or services.
15.6 Notices: Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be sufficiently given if: (i) delivered personally; (ii) emailed to the designated contact; (iii) mailed by certified or registered mail return receipt requested, postage prepaid; (iv) sent by overnight guaranteed delivery service, or (v) sent by facsimile (with confirmation of transmission received) and addressed to the party’s proper address as set forth above, or to such other address or addressee or fax number as either party may from time to time designate to the other by written notice. Any such notice or other communication shall be deemed to be given as of the date it is delivered to the recipient (or, in the case of facsimile, when the confirmation of transmission is obtained or, if on a non-business day, on the next business day).
15.7 Governing Law: This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Kentucky without reference to the conflict of laws provisions thereof. All actions or proceedings arising out of or relating to this Agreement, its validity, performance, enforcement, or breach, or the subject matter of this Agreement shall be exclusively adjudicated in state or federal court in Louisville, Kentucky and the parties hereby irrevocably consent and submit themselves to the personal jurisdiction of said courts for all such purposes. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
15.8 Force Majeure: The performance of either party under this Agreement may be suspended to the extent and for the period of time that such party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control (including, without limitations, acts of God, acts of civil or military authority including government priorities, new legislation or regulatory requirements, strikes or other labor disturbances, fires, floods, epidemics, wars or riots).
15.9 Modifications: No modification, amendment, supplement to or waiver of this Agreement or any of its provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties. A failure or delay of either party to: (i) insist upon the performance of any terms or conditions of this Agreement; or (ii) exercise any rights or privileges conferred in this Agreement shall not be construed as waiving any such terms, conditions, rights or privileges and the same shall continue and remain in full force and effect.
15.10 Severability: In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
15.11 Entire Agreement: The terms and conditions of any and all Schedules and other attachments to this Agreement are incorporated herein by this reference and shall constitute part of this Agreement as if fully set forth herein. This Agreement constitutes the entire agreement between the parties and supersedes all previous or contemporaneous agreements, promises, representations, whether written or oral, between the parties with respect to the subject matter hereof.
15.12 Counterparts: This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. It shall not be a condition to the effectiveness of this Agreement that each party shall have executed the same counterpart.
15.13 Headings: Headings in this Agreement are for the purpose of assisting the reader and do not constitute a part hereof.
15.14 Independent Contractors: The relationship of the parties shall be that of independent contractors, and nothing in this Agreement shall be deemed to make one party an agent, employee, partner or joint venturer of the other. Neither party shall have authority to bind, commit, or otherwise obligate the other Party in any manner whatsoever except as may be specifically provided herein.
15.15 Surviving Terms: The provisions of Sections 7, 10, 12, 13, and 14 shall survive the termination of this Agreement.
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