1. Some Definitions for this Agreement
1.1. "Additional Terms" means the features, registration process, license fee, license tiers, License Seats, beta testing guidelines, and application release guidelines, and other terms and conditions applicable to Your SDK license, as set forth on the EMOTIV website and/or mobile device application.
1.2. "EMOTIV" means EMOTIV, Inc., a Delaware corporation, with its principal place of business at 490 Post Street, San Francisco, CA 94102, USA.
1.3. "End User Data" means the EEG data and EEG derivative data an end user generates by using software linked to an EMOTIV headset in accordance with the terms of the EULA.
1.4. "EULA" means Your EMOTIV End User License Agreement, which is incorporated into this SDK License Agreement. Your EULA and any corresponding license fee will depend on the type of licensing arrangement with EMOTIV that You select.
1.5 "License Seat" means the number of different end users, number of sessions, number of different devices, amount of downloadable End User Data and other shareable benefits that are assigned to Your SDK license, as set forth in the Additional Terms.
1.6 "Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.7 "SDK" means the EMOTIV software development kit which gives You access to some or all of EMOTIV's Detection Suites: Mental Commands, Emotional & Performance Metrics, Frequency Band Information, Facial Expressions and EEG data.
1.8 "SDK License Agreement" means this agreement, which contains the terms under which the SDK is licensed to You and under which You may develop and distribute Third Party Software to use with an EMOTIV headset.
1.9 "Third Party Software" means software developed by You using the SDK, which relies on an End User Data to function, including but not limited to enterprise, consumer and free software applications.
1.10 "You" or "Your" means the individual accepting this SDK License Agreement or the company or other legal entity for which such individual is accepting this SDK License Agreement in accordance with the requirements of Section 3.4, below.
2. SDK License Options
2.1 EMOTIV offers multiple SDK license options. Please refer to the EMOTIV website and/or mobile device application for information concerning the Additional Terms applicable to each SDK license.
2.2 In the event of a conflict between the terms of this SDK License Agreement and the Additional Terms applicable to Your specific SDK License, the Additional Terms will control over the conflicting terms of this SDK License Agreement.
2.3 In the event of a conflict between the terms of this SDK License Agreement and the terms of any other agreement You have with EMOTIV, the terms of this SDK License Agreement will control over the conflicting terms of the other agreement. If You have a Software Development Kit License Agreement (Commercial Use) with EMOTIV, the terms of the Software Development Kit License Agreement (Commercial Use), including the pricing and tracking therein, will apply to all data and other information processed on the EMOTIV platform.
3. Accepting this SDK License Agreement
3.1 In order to use the SDK, You must first accept this SDK License Agreement and pay the charge, if any, applicable to Your SDK license. You do not have to accept this SDK License Agreement in order to use an EMOTIV headset, but You may not use the SDK until You have accepted this SDK License Agreement and made any payment applicable to Your SDK license.
3.2 By clicking to accept, You agree to the terms of this SDK License Agreement, which creates a legally binding contract between You and EMOTIV.
3.3 You may not accept the SDK License Agreement and You may not use the SDK if You are a person barred from receiving the SDK under the laws of the United States or other relevant countries, including the country in which You are resident or in which You use the SDK.
3.4 If You are agreeing to be bound by this SDK License Agreement on behalf of a company or other legal entity, for example Your employer, You represent and warrant that You have full legal authority to bind that company or other legal entity to this SDK License Agreement. If You do not have that authority, You may not accept the SDK License Agreement or use the SDK on behalf of that company or other legal entity.
3.5 The SDK is not intended for children under the age of 16. By accepting this SDK License Agreement, You represent and warrant to EMOTIV that You are at least 16 years of age.
4. Your SDK License from EMOTIV
4.1 Subject to the terms and conditions of this SDK License Agreement, EMOTIV grants You a limited, worldwide, nonexclusive, non-transferrable or assignable license to use the SDK solely to: (a) develop Third Party Software; and (b) use the Third Party Software internally within Your organization at Your cost and expense during the term of this SDK License Agreement. You may not use the SDK for any other purpose, including to market, sell or distribute the Third Party Software or any product or service incorporating the Third Party Software. You hereby accept such license.
4.2 The terms of this SDK License Agreement include any Additional Terms applicable to Your SDK license as set forth on the EMOTIV website and/or mobile device application.
4.3 EMOTIV or third parties own all legal right, title, and interest in and to the SDK, including any rights under patent law, copyright law, trade secret law, trademark law, and any other proprietary rights that subsist in the SDK. EMOTIV reserves all rights not expressly granted to You.
4.4 You may not take any actions that may cause or result in the fragmentation of the SDK, including but not limited to distributing, participating in the creation of, or promoting in any way a software development kit derived from the SDK.
4.5 Components of the SDK may be licensed by EMOTIV under an open source software license. Your use, reproduction, and distribution of such components of the SDK licensed under an open source software license are governed solely by the terms of that open source software license and not this SDK License Agreement.
4.6 Nothing in this SDK License Agreement gives You the right to use any of EMOTIV's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
4.7 You may not remove, obscure, or alter any proprietary rights notices, including copyright and trademark notices, that may be contained within the SDK.
4.8 THE SDK IS SUBJECT TO UNITED STATES EXPORT LAWS AND REGULATIONS. YOU MUST COMPLY WITH ALL DOMESTIC AND INTERNATIONAL EXPORT LAWS AND REGULATIONS THAT APPLY TO THE SDK. THESE LAWS INCLUDE RESTRICTIONS ON DESTINATIONS, END USERS, AND END USE.
5. Your Use of the SDK
5.1 EMOTIV obtains no ownership interest from You under this SDK License Agreement in or to any Third Party Software You develop using the SDK.
5.2 You may use the SDK and develop Third Party Software only for purposes that are permitted by any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions, including laws regarding the export of data or software to and from the United States or other relevant countries.
5.3 If You use the SDK to develop Third Party Software for internal users, You must protect the privacy and legal rights of those users. If the users provide You with user names, passwords, or other login information or personal information, You must make the users aware that the information will be available to Your Third Party Software, and You must provide legally adequate privacy notice and protection for those users and obtain their informed written consent. If Your Third Party Software stores personal or sensitive information provided by users, it must do so securely. If the user provides Your Third Party Software with EMOTIV account information, Your Third Party Software may only use that information to access the user's EMOTIV account when, and for the limited purposes for which, the user has given You informed written consent to do so.
5.4 You are solely responsible for any data, content, or resources that You create, transmit, or display through Your use of the SDK, and for the consequences of Your actions by doing so, including any loss or damage EMOTIV may suffer. EMOTIV has no responsibility to You or to any third party for any data, content, or resources that You create, transmit, or display through Your use of the SDK, or for the consequences of Your actions by doing so.
5.5 When you use the SDK to develop Third Party Software, You will need to mark the beginning and end each baseline recording and of any other points of interest. EMOTIV will store these markers and tag them against End User Data for analysis against the normal/baseline states of the end users.
5.6 EMOTIV will permit Your Third Party Software to access certain End User Data, provided that the end user has authorized Your Third Party Software to receive the End User Data and Your current EMOTIV license permits such access, as determined by EMOTIV in its discretion. Your Third Party Software may allow You to provide EMOTIV with End User Data and other personal and non-personal information of third parties, such as that of Your employees, friends and research or study participants. You represent and warrant to EMOTIV that You have obtained the informed written consent of such third parties to: (a) provide this third party information to EMOTIV; and (b) allow EMOTIV to use and disclose this third party information to You and other in the same manner as Your information under this SDK License Agreement and EMOTIV’s Privacy Policy. You further represent and warrant to EMOTIV that You provide appropriate safeguards and enforceable rights and effective legal remedies for such third parties who have provided You or EMOTIV with personal information.
6. Your EMOTIV Developer Credentials
6.1 You are responsible for maintaining the confidentiality of any developer credentials that EMOTIV may issue to You or that You may choose Yourself, and You will be solely responsible for all Third Party Software developed under Your developer credentials.
7. SDK Support, Modifications, and Discontinuance
7.1 EMOTIV, in its sole discretion, may elect to provide You with support or modifications for the SDK, and may terminate support at any time without notice or liability to You.
7.2 Without prior notice or liability to You, EMOTIV may change, suspend, or discontinue the SDK or any aspect of the SDK at any time at EMOTIV's sole discretion, and future versions of the SDK may be incompatible with Third Party Software developed on previous versions of the SDK. EMOTIV may also impose limits on certain features and services or restrict Your access to parts or all of the SDK without notice or liability.
8. Information that May Be Collected by EMOTIV
8.1 In order to innovate and improve the SDK, EMOTIV may collect certain usage statistics from the software, including but not limited to a unique identifier, associated IP address, version number of the software, and information on which tools and services in the SDK are being used and how they are being used.
8.2 EMOTIV will examine the data collected in the aggregate to improve the SDK and will maintain the data in accordance with EMOTIV's Privacy Policy.
8.3 You grant to EMOTIV a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the SDK any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the SDK.
9. Your Additional Responsibilities
9.1 You will: (a) use commercially reasonable efforts to prevent unauthorized access to or use of the SDK, other EMOTIV software and End User Data, and notify EMOTIV promptly of any such unauthorized access or use; (b) not share Your login credentials with any third party; and (c) be responsible for maintaining a sufficient number of License Seats to allow end users to use Your Third Party Software without interruption.
9.2 You will not: (a) sell, resell, license, sublicense, distribute, rent or lease the SDK; (b) use the SDK to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or publicity rights; (c) use the SDK to store or transmit Malicious Code; (d) interfere with or disrupt the integrity or performance of the SDK or third-party data contained therein; (e) attempt to gain unauthorized access to the SDK or other EMOTIV software or its related systems or networks; (f) permit direct or indirect access to or use of the SDK or other EMOTIV software in a way that circumvents a contractual restriction; (g) access the SDK in order to build a competitive product or service or to monitor the availability, performance or functionality of the SDK or other EMOTIV software, or for any other benchmarking or competitive purposes; or (h) reverse engineer the SDK or other EMOTIV software.
10. Using EMOTIV APIs
10.1 Intellectual property rights owned by EMOTIV or by other parties may protect data You retrieve from EMOTIV using an EMOTIV API. Your use of any such API may be subject to additional terms and conditions. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on such data unless allowed by the relevant terms and conditions.
10.2 Your Third Party Software may retrieve certain End User Data from EMOTIV using an EMOTIV API only with the end user's authorization, and only when and for the limited purposes for which the authorization was given.
11. Termination of the SDK License Agreement
11.1 This SDK License Agreement will continue to apply until terminated by either You or EMOTIV as set out below.
11.2 If You want to terminate this SDK License Agreement, You may do so by discontinuing Your use of the SDK and any developer credentials.
11.3 EMOTIV may terminate this SDK License Agreement with You at any time if:
(A) You have breached any provision of this SDK License Agreement; or
(B) EMOTIV is required to do so by law; or
(C) EMOTIV decides it will no longer provide the SDK to users in the jurisdiction in which You are resident or from which You use the service; or
(D) EMOTIV determines in its sole discretion that providing the SDK or certain SDK services to You is no longer commercially viable.
11.4 Upon termination of this SDK License Agreement, all rights and licenses granted to You by EMOTIV under this SDK License Agreement will cease. EMOTIV has no obligation to maintain or provide Your Third Party Software with access to End User Data following termination of this SDK License Agreement.
11.5 Following termination of this SDK License Agreement, Sections 5.1, 5.4, 12.1-12.4, 13.1, and 14.1-14.7 will continue to bind You and EMOTIV.
12. EMOTIV's Disclaimer and Limitation of Liability
12.1 YOUR USE OF THE SDK IS AT YOUR SOLE RISK. EMOTIV PROVIDES THE SDK "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND. EMOTIV IS NOT RESPONSIBLE FOR ANY ASPECT OF THIRD PARTY SOFTWARE AND DOES NOT ENDORSE, RECOMMEND OR ENCOURAGE THE USE OF ANY THIRD PARTY SOFTWARE.YOUR USE OF THE SDK AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SDK IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THAT USE, INCLUDING BUT NOT LIMITED TO DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA.
12.2 EMOTIV DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
12.3 TO THE EXTENT PERMITTED BY LAW, EMOTIV WILL NOT, UNDER ANY CIRCUMSTANCES AND NO MATTER WHAT THE LEGAL THEORY (TORT, WARRANTY, CONTRACT, OR OTHER), BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SDK OR ANY THIRD PARTY SOFTWARE, INCLUDING ANY LOSS OF DATA, AND WHETHER OR NOT EMOTIV HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. UNDER NO CIRCUMSTANCES WILL EMOTIV BE LIABLE TO YOU FOR ANY AMOUNT.
13. Your Obligation To Indemnify EMOTIV
13.1 To the maximum extent permitted by law, You agree to defend, indemnify, and hold harmless EMOTIV, its affiliates, and their respective directors, officers, employees, and agents from and against any and all claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including attorneys' fees) arising out of or accruing from (a) Your use of the SDK, (b) any Third Party Software You develop or distribute, and (c) any failure by You to comply with this SDK License Agreement.
14. GENERAL TERMS
14.1 Your Relationship with EMOTIV. For all purposes of this SDK License Agreement and Your use of the SDK, You and EMOTIV are acting independently and not as the partner, joint venturer, agent, employee, or employer of the other. You do not have any authority to assume or create any obligation for or on behalf of EMOTIV, express or implied, and You will not attempt to bind EMOTIV to any contract or other obligation.
14.2 SDK License Agreement Amendments. EMOTIV may amend this SDK License Agreement on a prospective basis, and Your use of the SDK after an amendment constitutes Your consent to be bound by the amendment going forward.
14.3 Applicable Law and Location of Lawsuits. This SDK License Agreement, and Your relationship with EMOTIV under this SDK License Agreement, will be governed by and construed in accordance with the laws of the State of California, excluding any rules that would apply the law of another jurisdiction. You and EMOTIV agree to submit to the exclusive jurisdiction and venue of the courts located within the City and County of San Francisco, California, to resolve any legal matter arising from this SDK License Agreement.
14.4 No Waiver of Rights by EMOTIV. EMOTIV's failure to exercise or enforce a legal right or remedy contained in this SDK License Agreement will not constitute a waiver of that right or remedy.
14.5 Effect of Invalidity of Specific Terms. If a court of competent jurisdiction holds any provision of this SDK License Agreement to be unenforceable, the rest of the SDK License Agreement will be severable and remain in effect.
14.6 Assignment of Rights. You may not assign any rights or obligations under this SDK License Agreement without EMOTIV's advance written consent, which EMOTIV may withhold in its sole discretion. EMOTIV may assign its rights or obligations under this SDK License Agreement in its sole discretion.
14.7 Entire Agreement. This SDK License Agreement, along with the Additional Terms applicable to Your SDK license, constitute the entire agreement between You and EMOTIV regarding Your use of the SDK.
23 May , 2018