Neuroelectrics Barcelona, SLU. Software License Agreement

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND NEUROELECTRICS BARCELONA, SLU. CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE USING OR DOWNLOADING THIS SOFTWARE. BY DOWNLOADING, INSTALLING OR USING THIS SOFTWARE, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THIS SOFTWARE.

1. Definitions: Capitalized terms not defined in context shall have the meaning assigned to them below:

“Agreement” means this License Agreement.

“License” means non-exclusive, non-transferable and non-sublicensable license to access and use the Software within the parameters of the terms and conditions applicable to the Product, granted by Neuroelectrics to Licensee.

“Licensee” or “You” means the person or entity who downloads or by any other mean obtains, installs or uses the Software.

“Neuroelectrics” means Neuroelectrics Barcelona, SLU.

“Open Source Software” means third party software, which may be available without charge for use, modification or distribution and generally licensed under the GNU GPL, LGP, BSD, MIT, Apache or other open source software license.

“Product” means the device or devices designed, developed and manufactured by Neuroelectrics to be used with the Software (e.g. EEG recording systems devices, transcranial current stimulators, cap systems, electrodes systems and others).

“Software” means the object code version of the software (e.g. NIC 2.0, NIC, NIC OFFLINE, NIC HOME, NEUROSURFER, MATNIC TOOLKIT) that is provided or made available to the Licensee by downloading (or any other means) as well as any corrections, updates, enhancements and upgrades to such software that are made available to the Licensee from time to time pursuant to this Agreement, and all the copies of the foregoing.

2. License: Subject to the terms of this Agreement, Neuroelectrics grants to Licensee, and Licensee accepts from Neuroelectrics, a non-exclusive, non-transferable and non-sublicensable license to access and use the downloaded Software within the parameters of the terms and conditions applicable to the Product (the “License”). Licensee shall only use the Software in relation to the Products.

3. Restrictions: With the exception of the MATNIC software, Licensee may not reverse engineer, decompile, dissemble, or attempt to discover or modify in any way the underlying source code of the Software, or any part thereof. In addition, Licensee may not: (i) with the exception of the MATNIC software, modify, translate, localize, adapt the Software; (ii) rent, lease, loan, create or prepare derivative works, or create a patent based on the Software and/or the Product; (iii) resell, sublicense or distribute the Software or the Product; (iv) provide, make available to, or permit the use of the Software, in whole or in part, by any third party without Neuroelectrics prior written consent; (v) use the Software or the Product to create or enhance a competitive offering or for any other purpose which is competitive to Neuroelectrics; (vi) perform or fail to perform any act which could result in a misappropriation or infringement of Neuroelectric’s intellectual or industrial property rights in the Products or the Software. Each permitted copy of the Software made by the Licensee hereunder must contain all titles, trademarks, copyrights and restricted rights notices as in the original. Licensee may not use any license keys or other license access devices not provided by Neuroelectrics, including but not limited to “pirate keys”, to install or access the Software.

4. Copyright: Licensee acknowledges and agrees that: (i) the Products and the Software are protected by copyright, industrial property rights and other intellectual and industrial property regulations; (ii) Neuroelectrics and/or its suppliers own the copyright, as well as other intellectual and industrial property rights in the Products and Software; (iii) the Software is licensed, and not sold; (iv) Neuroelectrics reserves any and all rights, implied or otherwise, which are not expressly granted to Licensee in this Agreement.

Licensee also acknowledges that some of the licensed Software includes Open Source Software. Licensee can access a complete list of these licenses for the Open Source Software provided with the Neuroelectrics’ Software. It is the responsibility of the Licensee to review and adhere to all licenses for Open Source Software. By accepting this Agreement the Licensee is also accepting the terms and conditions of the licenses applicable to any third party software, including any Open Source Software, included with the Neuroelectrics’ Software. If the Software licensed by Neuroelectrics includes certain software licensed under the GNU General Public License or other similar Open Source Software with a license that requires the licensor to make the source code publicly available (“GPL Software”) and the applicable source code was not included in the Software, then the Licensee may obtain a copy of the applicable source code for the GPL Software by either (a) requesting the open source code be mailed by Neuroelectrics or (b) downloading the open source code by following the website link referred in this paragraph.

5. Breach of Third Parties’ Rights: In case that, in the opinion of Neuroelectrics, the Software could be breaching any kind of rights of third parties, Neuroelectrics may, at its own discretion: (i) procure for the Licensee the right to use the Software; (ii) replace, without additional cost, the Software with other software that presents the same capabilities and functionalities; (iii) modify or correct the Software in the measure necessary in order to exclude the breach of the rights of third parties. If none of the aforementioned solutions is commercially, technically, functionally or economically feasible, Neuroelectrics will be able to terminate the Agreement in its totality of with respect to the part of the Software breaching the rights. Repair, replacement, or termination of the Agreement (at the option of Neuroelectrics) is the exclusive remedy, if there is a defect.

6. Limited Warranty (Disclaimer and Limitation of Liability): Neuroelectrics does not warrant any object codes contained in the Software furnished to it by third parties. In the event the Licensee wishes further information about object codes contained in the Software that are not created by Neuroelectrics but which are used by Neuroelectrics with permission of third parties, please contact Neuroelectrics.

Due to the complex nature of the Software and the devices that interact with it, Neuroelectrics does not warrant that the Software is completely error free, will operate without interruption, or is compatible with all equipment and software configurations. The Licensee expressly assumes all risk for use of the Software, acknowledges to be the unique and exclusive responsible of the Software use and will maintain Neuroelectrics harmless and fully indemnify in case of any kind of claim.

**NEUROELECTRICS MAKES NO OTHER WARRANTIES EXPRESSED OR IMPLIED, RELATED TO THE LICENSED SOFTWARE (INCLUDING ASSOCIATED WRITTEN MATERIALS) OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE. **

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE NEUROELECTRICS, THE COPYRIGHT OWNER, AUTHORS OR CONTRIBUTORS BE LIABLE FOR ANY CLAIM, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; BUSINESS INTERRUPTION; PERSONAL INJURY) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE OR OTHER DEALINGS IN THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL THE LIABILITY OF NEUROELECTRICS EXCEED THE AMOUNT PAID FOR THE LICENSED SOFTWARE.

NEUROELECTRICS IS NOT LIABLE AND LICENSEE RELEASES NEUROELECTRICS FROM ALL LIABILITY DERIVED FROM ANY KIND OF MANIPULATIONS AND/OR CHANGES INTRODUCED BY THE LICENSEES IN THE LICENSED SOFTWARE.

7. Term and Termination: This Agreement is effective until terminated. The termination of this Agreement may occur: (i) by mutual written agreement of Neuroelectrics and the Licensee; (ii) by either party for a breach of this Agreement by the other party that the breaching party fails to cure to the non-breaching party’s reasonable satisfaction within thirty (30) days following its receipt of notice of the breach; (iii) by the Licensee by deleting the Software from all devices (e.g. computers, laptops, smartphones, tablets, etc.).

Upon termination of this Agreement or expiration or termination of the License for any reason, all rights granted to Licensee for the Software shall immediately cease and Licensee shall immediately: (i) cease using the applicable Software; (ii) remove all copies, installations, and instances of the applicable Software from Licensee computers and any other devices on which the Software was installed; (iii) return the applicable Software to Neuroelectrics together with all documentation and other materials associated with the Software and all copies of any of the foregoing, or destroy such items; (iv) pay Neuroelectrics all amounts due and payable up to the date of termination; and (v) give Neuroelectrics a written certification, within ten (10) days, that Licensee, have complied with all of the foregoing obligations.

Any provision of this Agreement that requires or contemplates execution after the termination of this Agreement or a termination or expiration of a License, is enforceable against the other party and their respective successors and assignees notwithstanding such termination or expiration, including, without limitation, the Restrictions, Limited Warranty, Term and Termination and Governing Law and Venue. Termination of this Agreement or a License shall be without prejudice to any other remedies that the terminating party may have under law, subject to the limitations and exclusions set forth in this Agreement.

8. General:

(i)Governing Law and Venue: This Agreement shall be governed by and construed in accordance with the laws of Spain. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the courts of the city of Barcelona. Each party hereby agrees to submit to the jurisdiction of such courts.

(ii)Assignment: Except as otherwise set forth herein, Licensee shall not, in whole or part, assign or transfer any part of this Agreement, the License granted under this Agreement or any other rights, interest or obligations hereunder, whether voluntarily, by contract, by operation of law or by merger (whether that party is the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or order, or otherwise without the prior written consent of Neuroelectrics.

(iii)Severability: If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible by law to effect the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this Agreement that limit, disclaim, or exclude warranties, remedies or damages are intended by the parties to be independent and remain in effect despite the failure or unenforceability of an agreed remedy. The parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.

(iv)Waiver: Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

(v)Headings: Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”

(vi)Entire Agreement: This Agreement is intended by the parties as a final expression of their agreement with respect to the subject matter thereof and shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial or arbitral proceeding that may involve the Agreement. Each party acknowledges that in entering into the Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Agreement.