Terms and Conditions





These Terms and Conditions (“Terms”) are incorporated by reference and made a part of that

certain Reseller Agreement (the “Agreement”) between NeuroSky, Inc. (“NeuroSky”), a Delaware

corporation, and the identified Reseller (“Reseller”). Capitalized terms not defined herein are as defined

in the Agreement and the Exhibits thereto.

1. Definitions. The following terms shall have the respective meanings set forth below:

1.1 “Applications” means the applications for use with the Products that are

included with the Products or are downloaded, licensed or otherwise made available in

connection with the purchase of the Products.

1.2 “Base Software” means NeuroSky’s software that is embedded in the Products.

1.3 “CD” means the compact disc containing the Applications and the User Guide.

1.4 “Competing Products” means products (other than the Products) that capture

and process biosensor signals.

1.5 “Sensors” means NeuroSky’s non-invasive dry sensor products that capture

the electrical waves generated by biosignals and incorporated into the Products.

1.6 “Software” means the Applications and the Base Software. Software is

included within the definition of Products.

1.7 “Specifications” means NeuroSky’s then-current functional specifications for

the Products, subject to change from time to time.

1.8 “User Guide” means the instructions for use contained with the Products,

whether in paper, on the CD, or in any other medium.

2. Non-exclusive Relationship. Reseller shall be a non-exclusive reseller in the Territory on

NeuroSky’s behalf with respect to the Products. Reseller agrees that it shall not distribute, sell or

market any Competing Products without the prior written approval of NeuroSky.

3. Responsibilities of Reseller.

3.1 Facilities. Reseller has, and will maintain, at its own expense, adequate

facilities and sufficient and adequately trained personnel necessary to perform its obligations

under the Agreement. Reseller further represents that it is ready and willing to do so, and in

particular that it will: (i) not misrepresent NeuroSky or its Products; (ii) not alter or reverse

engineer or facilitate the reverse engineering by others of the Products; and (iii) comply with

NeuroSky’s published terms and conditions and other policies related to transactions

contemplated hereunder.

3.2 Sales Promotion. Reseller will use its reasonable efforts to: (i) promote the

sale and distribution of the Products in the Territory; and (ii) satisfy those reasonable criteria

and policies of NeuroSky with respect to Reseller’s obligations under the Agreement, as

developed and announced by NeuroSky from time to time. All promotional and advertising

material for the Products, unless supplied by NeuroSky, must be approved in writing by

NeuroSky prior to its use. Reseller shall assign all right, title and interest in the copyrights

advertising material referencing NeuroSky and/or the Products, and shall confirm such

assignment by execution of such assignments and other documents that NeuroSky may

request from time to time.

3.3 Minimum Advertised Pricing Policy. Reseller shall comply with the Minimum

Advertised Pricing Policy set forth at http://store.neurosky.com/pages/map. NeuroSky may modify or

discontinue such policy at any time without notice in its sole discretion.

3.4 Compliance with NeuroSky’s Policies. To the extent possible under the laws of

the Territory, Reseller shall comply with NeuroSky’s applicable policies, as amended from time

to time, whether listed on NeuroSky’s website or separately provided to Reseller.

3.5 Non-Deceptive Practices. Reseller shall conduct business in a manner that will

at all times favorably reflect on the Products and the reputation of NeuroSky and avoid any

deceptive or unethical practices or advertising that is or might be detrimental to NeuroSky or its

customers. Reseller will make no false or misleading representations with regard to NeuroSky

or the Products and will not enter into any contract or engage in any practice detrimental to the

interests of NeuroSky.

3.6 Records and Reports; Audit.

(a) Reseller shall maintain complete and accurate books and records and

shall, retain originals or copies of all correspondence and all other correspondence of any kind

relating to all obligations of Reseller under the Agreement

(b) NeuroSky and its agents shall have the right at any time during the

term of the Agreement, but no more than twice a year and for a period of two (2) years after the

expiration or termination of the Agreement to examine such books, records and

correspondence as it may deem appropriate upon reasonable advance notice given to

Reseller. The costs relating to such examination (not including costs incurred by Reseller) shall

be borne by NeuroSky.

3.7 Reseller Responsible for Business Partners. Reseller will be fully responsible

for any act or omission by any business partner of Reseller that, if undertaken by Reseller,

would constitute a breach of the Agreement.

4. Pricing; Orders; Payment.

4.1 Price. The price of the Products for purchase by Reseller for sale to approved

customers shall be in conformance with the price list agreed upon in writing by the parties.

4.2 Price Increases and Decreases. NeuroSky shall notify of any price increase or

decrease to the Products. All orders accepted after the effective date of the price increase or

decrease shall be at the new price.

4.3 Taxes. Unless otherwise agreed to in writing by NeuroSky, all prices quoted

are exclusive of transportation and insurance costs, and all Taxes (as defined below). In

addition to any other payments due under the Agreement, Reseller agrees to pay, indemnify

and hold NeuroSky harmless from any sales, use, excise, import or export, value-added or

similar tax or duty, and any other tax not based on NeuroSky’s income, including any penalties

and interest, due to any payment to be made by Reseller pursuant to the Agreement, and any

costs associated with the collection or withholding of any of the foregoing items (the “Taxes”).

When applicable, such Taxes shall appear as separate items on NeuroSky’s invoice. If

Reseller fails to pay any Taxes as of the original due date for such Taxes and NeuroSky

receives any assessment or other notice (collectively the “Assessment”) from any governmental

taxing authority providing that such Taxes are due from NeuroSky, NeuroSky shall give

Reseller written notice of the Assessment and Reseller shall pay to NeuroSky or the taxing

authority the amount set forth as due in the Assessment within thirty (30) business days of

receipt of such written notice from NeuroSky.

4.4 Order Process. All orders by Reseller to NeuroSky for Products shall be made

by submitting a firm, non-cancelable, written purchase order (“Purchase Order”) with

NeuroSky’s product number(s) describing the Products that Reseller desires to purchase from

NeuroSky, the quantity and Reseller’s desired delivery date. Purchase orders shall not be

binding upon NeuroSky until confirmed by NeuroSky. Any confirmation shall be made by

NeuroSky in writing within seven (7) days after receipt of an order, which confirmation shall

include the estimated date of delivery. If no confirmation is received within seven (7) days after

receipt of an order, such order is not confirmed. All orders confirmed by NeuroSky are firm

orders and cannot be changed, cancelled, or in any other way altered.

4.5 Acceptance of Purchase Orders. Acceptance of Purchase Orders is in

NeuroSky’s sole discretion. In addition, NeuroSky may cancel Purchase Orders after


4.6 Each purchase order issued hereunder will bear the following statement:

“This Purchase Order is placed subject to the Reseller Agreement between

NeuroSky, Inc. and [Reseller’s name].”

4.7 No Change in Terms. Unless otherwise agreed in writing and signed by both

parties referencing the Agreement, the relevant terms and provisions of the Agreement shall

govern each order for Products by Reseller. Any term or condition incorporated in Reseller’s

purchase order(s), order acknowledgement(s) or any other document provided to NeuroSky by

Reseller that is in any way different from, inconsistent with or in addition to the terms and

conditions set forth in the Agreement shall be of no effect, shall not apply to the purchase and

sale of Products between the parties, and shall not become a part of a contract between the

parties or be binding upon either Reseller or NeuroSky.

4.8 Payment Terms. Reseller agrees to pay NeuroSky as set forth in the


4.9 Late Payment Charges. Any late payment by Company shall be subject to a

late payment charge from the date due until paid in full at a rate equal at all times to one and

one-half percent (1-1/2%) per month or, if lower, the highest rate permitted by law.

4.10 Financial Condition. Reseller represents and warrants that it is in good

financial condition, solvent and able to pay its bills when due. Reseller will notify NeuroSky in

writing within thirty (30) days of any change in the management or control of Reseller or any

transfer of more than fifty percent (50%) of Reseller’s voting control or a transfer of substantially

all of Reseller’s assets.

4.11 Deleted Products for Reseller. NeuroSky reserves the right to remove any item

from the list of Products upon written notice.

5. Shipment. NeuroSky will use commercially reasonable efforts to ship the Products for

delivery on or prior to the times requested in Purchase Orders accepted by NeuroSky. In the

event of shortages of labor, energy, components, raw materials or supplies or interruption of

NeuroSky’s production or shipment for reasons beyond NeuroSky’s reasonable control,

NeuroSky may allocate its production among its customers in a manner NeuroSky deems, in its

sole discretion, to be fair and reasonable. Without liability to any person and without prejudice to

any other remedy, NeuroSky may withhold or delay shipment of any order if Reseller is late in

payment or is otherwise in default under the Agreement.

5.1 Packaging and Shipment—Risk of Loss. All deliveries are EXW (EX-Works)

point of shipment (INCOTERMS 2000). For Resellers whose address is within the United

States of America or Canada, the point of shipment is Fremont, California. For Resellers

whose address is outside the United States of America and Canada, the point of shipment is

Hong Kong. Delivery occurs upon making the Products available to the carrier at the shipping

point. Title and risk of loss pass to Company at the time the Products are made available to the

carrier at the shipping point. The carrier will be deemed to be acting as Reseller’s agent, and

all claims for damage to the Products must be filed by Reseller with the carrier.

5.2 Shipment Expense. Reseller will instruct NeuroSky in writing as to which

carrier it will use to transport the Products ordered by Reseller. If Reseller has not so instructed

NeuroSky, NeuroSky may select the carrier. Reseller will pay all costs of transportation, any

insurance requested by Reseller, export and import fees, customs brokerage expenses and

similar charges. Reseller, at its expense, will make and negotiate any claims against any

carrier, insurer, customs broker, freight forwarder or customs collector. NeuroSky will use

commercially reasonable efforts to cooperate with and assist Reseller in making such claims.

6. Warranties.

6.1 Warranty to End-Customer. The warranties for the Products will be provided

directly to the end-customer and not to Reseller or any business partner of Reseller.

6.2 No Amendment to Warranty. Reseller shall have no right or authority, express

or implied, directly or indirectly, to alter, enlarge or limit the representations or guarantees

beyond those expressly contained in NeuroSky’s Product warranties or those of the licensors of








7. Product License for Reseller.

7.1 Purchase Rights and License. Reseller will purchase from NeuroSky the

Products for resale according to the terms and conditions of the Agreement. The Software is

not sold, but rather is licensed solely for end users’ personal use.

7.2 Reseller’s license and that of any end-user is conditioned upon Reseller’s

compliance with all of the terms and conditions of the Agreement, including payment, and the

terms and conditions that govern the license of the Applications. Reseller shall not decompile,

reverse engineer, disassemble or otherwise attempt to derive source code from the Products,

nor shall Reseller disassemble the Products or otherwise sell or distribute the Products except

as packaged and delivered to Reseller by NeuroSky.

8. Trademarks and Trade Names and Copyrights.

8.1 License of Trademark. During the term of the Agreement and subject to the

terms and conditions contained herein, NeuroSky grants Reseller (a) a personal, non-exclusive,

non-transferable license to use NeuroSky’s logo and trademarks (the “NeuroSky Trademarks”),

and (b) a personal, non-exclusive, non-transferable sublicense to use third party logo and

trademarks in the Products as to which NeuroSky has the right to grant sublicenses (the “Third

Party Trademarks” and, collectively with the NeuroSky Trademarks, the “Trademarks”), in

Reseller’s marketing of the Products, provided that such use is in accordance with NeuroSky’s

then-current guidelines for using the NeuroSky Trademarks and the Third Party Trademarks, as

amended from time to time. Without limiting the foregoing, such use must reference the

NeuroSky Trademarks as being owned by NeuroSky and the Third Party Trademarks as being

owned by such third party. Reseller acknowledges and agrees that all use of the NeuroSky

Trademarks shall inure to the benefit of and be on behalf of NeuroSky and that all use of the

Third Party Trademarks shall inure to the benefit of and be on behalf of such third party.

Nothing in the Agreement grants Reseller ownership or any rights in or to use the Trademarks,

except in accordance with this license. The rights granted to Reseller in this license will

terminate upon any termination or expiration of the Agreement. NeuroSky will have the

exclusive right to own, use, hold, apply for registration for, and register the Trademarks during

the term of, and after the expiration or termination of, the Agreement. Reseller will neither take

nor authorize any activity inconsistent with such exclusive right. Reseller will not: (i) alter or

remove any Trademarks applied to, or used in conjunction with any Products, or (ii) use any

Trademarks as part of Reseller’s trade name, service mark, or trademark. Reseller will

immediately change or discontinue any use of the Trademarks as requested by NeuroSky.

Upon NeuroSky’s request, Reseller shall promptly provide NeuroSky with specimens of all uses

of the Trademarks and will make any changes to such specimens within thirty (30) days of the

date of NeuroSky’s request. Reseller will, on expiration or termination of the Agreement, cease

indicating to the public that it is an authorized distributor of Products, cease the use of the

Trademarks and destroy all existing literature that references any Trademark.

8.2 Trademark Registration. Reseller shall not (i) seek to register any Trademark,

or any substantially similar trademarks, in any jurisdiction, (ii) challenge NeuroSky’s ownership

of the NeuroSky Trademarks or the third party’s ownership of the Third Party Trademarks, or

the validity or enforceability thereof, or (iii) take any action that likely would diminish the value of

the Trademarks. Upon termination of the Agreement, Reseller shall cease all use of the

Trademarks. If Reseller acquires any rights in any NeuroSky Trademark by operation of law or

otherwise, it will immediately, at no cost or expense to NeuroSky, assign such rights to

NeuroSky along with all associated goodwill.

8.3 Authorized Representative. Solely during the term of the Agreement, Reseller

may further indicate to the public that it is an authorized representative of the Products,

provided that the display of the NeuroSky Trademarks on Reseller’s marketing documents and

worldwide web sites shall be at least as prominent as the name and logo of any other company

displayed on such materials or site.

8.4 No Reseller Rights in Trademarks or Copyrights. Reseller acknowledges and

agrees that it has paid no consideration for the use of the Trademarks and NeuroSky’s

copyrights, and nothing contained in the Agreement shall give Reseller any interest in any of

them. Reseller acknowledges and agrees that NeuroSky owns and retains all copyrights and

other proprietary rights in all of NeuroSky’s Products and any NeuroSky Trademarks and

copyrights related to any Products, and agrees that it will not at any time during or after the

term of the Agreement assert or claim any interest in or do anything that may adversely affect

the validity or enforceability of any of the Trademarks, or copyrights belonging to NeuroSky or

licensed to NeuroSky.

9. Engineering Changes; Documentation.

9.1 Product Changes. NeuroSky shall have the right to make deletions, changes,

substitutions and modifications in the Products and the Specifications therefor.

10. Indemnification.

10.1 Infringement Indemnification. NeuroSky will defend any suit or proceeding

brought against Reseller in the Territory based on a claim that any of the Products, as furnished

by NeuroSky under the Agreement, infringes or misappropriates any rights of third parties

arising under copyright or trade secret law. NeuroSky will pay all settlements and damages

finally awarded therein against Reseller; provided that Reseller (a) shall have made all payments

to NeuroSky due under the Agreement; (b) shall have otherwise complied with the terms,

conditions and provisions of the Agreement; (c) shall have given prompt written notice to NeuroSky

of any claim of infringement and furnished NeuroSky with all papers received in connection

therewith; (d) shall have permitted NeuroSky to take complete charge of the defense of any such

suit and to settle the same, in either case if deemed advisable by NeuroSky; and (e) shall have

assisted NeuroSky in every reasonable manner in the conduct of such defense. In the event that

NeuroSky elects to not take charge of the defense of any such suit, Reseller shall have the right to

defend against any such suit at the cost and expense of NeuroSky. If the use or sale of any

Products is permanently enjoined or a final judgment awarding damages is entered against

Reseller by reason of any such infringement or misappropriation, NeuroSky shall, in addition to its

obligation to pay all settlement and damages finally awarded against Reseller, at its sole election,

either (x) procure the right to use the Products; (y) replace or modify the Products so that it

becomes noninfringing or no longer uses misappropriated trade secrets; or (z) refund to Reseller

an amount equal to the purchase price of the products sold to Reseller and remaining in Reseller’s


(a) Exceptions. NeuroSky will not be obligated under this Section to

defend or be liable for costs and damages to the extent that infringement, or a claim thereof,

arises out of or is related to: (i) a modification made to Product by Reseller or a third party, (ii)

use or combination of Product with products or data not provided by NeuroSky, (iii) use of other

than the latest unmodified release of the Software made available to Reseller by NeuroSky if

such infringement would have been avoided by the use thereof, or (iv) use or distribution of

Product after Reseller receives notice, or has reason to believe, that Product infringes a patent,

copyright or trademark of a third party.






10.2 Indemnification by Reseller. Reseller shall indemnify NeuroSky and hold

NeuroSky, its officers, directors, shareholders, employees, insurers, attorneys, successors and

assigns harmless from and against any and all liability, losses, claims, expenses (including

reasonable attorneys’ fees), demands or damages of any kind, arising out of or related to the

acts or omissions of Reseller, its employees, representatives or agents, in connection with their

activities under the Agreement.

11. Statute of Limitations. No action by Reseller arising under the Agreement may be

brought at any time more than twenty-four (24) months after the facts upon which the cause of

action is based occurred.

12. Confidential Information.

12.1 Reseller agrees to maintain in confidence what it knows or has reason to know

is regarded as confidential by NeuroSky (“Confidential Information”). The Confidential

Information will include, but will not be limited to, trade secrets, the structure, formulae,

algorithms, software programs, software source documents, APIs, sequence and organization

of the Products, sales and marketing plans, blueprints, techniques, processes, procedures and

formulae, price lists, specifications, prints, Product plans and marketing plans, customer lists,

business forecasts, procurement requirements and purchasing and manufacturing information

and the terms of the Agreement. In order for information to be deemed Confidential Information

it must be marked by NeuroSky prior to its receipt by the Reseller in a manner to indicate that it

is considered Confidential Information hereunder. Any information disclosed orally or visually

must (i) be identified at the time of disclosure as confidential and (ii) within ten (10) days of such

disclosure be described in writing and sent by NeuroSky to Reseller in sufficient detail to

describe such disclosure, in order for it to be deemed Confidential Information. Reseller shall,

during the term of the Agreement and for three (3) years after the termination of the Agreement,

keep in confidence all such Confidential Information, and shall not use such Confidential

Information without NeuroSky’s written consent, except in performance of its duties hereunder;

provided, that with respect to any algorithms, source code or firmware disclosed hereunder, the

obligations of confidentiality shall extend indefinitely, subject to the exclusions below. Reseller

will not disclose the Confidential Information to any person except its employees or consultants

to whom it is necessary to disclose the Confidential Information for such purposes. Reseller

agrees that the Confidential Information will be disclosed or made available only to those of its

employees or consultants who have agreed to receive it under terms at least as restrictive as

those specified in the Agreement.

12.2 Reseller will take reasonable measures to maintain the confidentiality of the

Confidential Information, but not less than the measures it uses to protect its confidential

information of similar type. Reseller will immediately give notice to NeuroSky of any

unauthorized use or disclosure of the Confidential Information. Reseller agrees to assist

NeuroSky in remedying such unauthorized use or disclosure of the Confidential Information.

This obligation will not apply to the extent that Reseller can demonstrate:

(a) the disclosed information, at the time of disclosure, was part of the

public domain;

(b) the disclosed information became part of the public domain, by

publication or otherwise, except by breach of the provisions of the Agreement;

(c) the disclosed information can be established by written evidence to

have been in the possession of Reseller at the time of disclosure; or

(d) the disclosed information is received from a third party without similar

restrictions and without breach of the Agreement.

12.3 Government Process. It shall not be a breach of this Section 16 to disclose

Confidential Information to the extent that the disclosed information is required to be disclosed

by a government agency to further the objectives of the Agreement, such as to obtain

permission to distribute the Product, or by a proper court of competent jurisdiction; provided,

however, that Reseller will use its best efforts to minimize the disclosure of such information

and will consult with and assist NeuroSky in obtaining a protective order prior or confidential

treatment to such disclosure.

13. NeuroSky Products. Reseller agrees that it shall not contract with any other provider of

products incorporating NeuroSky’s technology, including without limitation as a reseller,

distributor, sales representative, logistics provider or otherwise, without the prior written consent

of NeuroSky, which may be granted or withheld in NeuroSky’s sole discretion.

14. Term and Termination.

14.1 Term. The term of the Agreement shall begin as of the Term Start Date and

shall continue for the term specified in the Agreement, subject to the terms and conditions set

forth hereunder.

14.2 Causes for Termination. The Agreement and all licenses under the Agreement

will terminate:

(a) Thirty (30) days following the date either party gives the other notice of

a material breach by the other of any term or condition of the Agreement or of any agreement

between NeuroSky and Reseller relating to the Products, unless the breach is cured within

such thirty (30) day period; provided that any willful unauthorized use, copying, modification,

reverse engineering, disclosure or sublicensing of the Products will be deemed a material

breach of the Agreement that cannot be cured and shall be grounds for immediate termination;

(b) upon notice by either party, immediate upon the liquidation, dissolution,

reorganization, merger, sale of substantially all of the assets, or change in management, voting

control or corporate form, of the other party; or

(c) upon notice by either party, immediately, if

(1) a receiver is appointed for the other party or its property;

(2) the other party becomes insolvent or unable to pay its debts as

they mature in the ordinary course of business or makes an assignment for the benefit of its

creditors; or

(3) any proceedings are commenced against the other party under

any bankruptcy, insolvency or debtor’s relief law and such proceedings are not vacated or set

aside within sixty (60) days from the date of commencement thereof.

(d) upon notice by NeuroSky, immediately, if

(1) There is a change in control of Reseller of fifty percent (50%),

whether through merger, sale of stock or sale of substantially all of the assets of Distributor;

(2) Reseller engages in fraud or criminal misconduct relevant to

the operation of the business of Reseller;

(3) Any officer or key employee of Reseller is convicted of a felony

or misdemeanor involving fraud, moral turpitude or commercial dishonesty, whether or not the

crime arose from the operation of Reseller’s business.

(e) upon notice by either party, immediately, if the other party has not

been in compliance under the Agreement for more than one hundred eighty (180) days

pursuant to a Force Majeure occurring, as defined in Section 21.8 below.

14.3 Effect of Termination. After termination:

(a) all rights of Reseller to market or distribute the Products shall

immediately cease;

(b) all sums owed to NeuroSky by Reseller, or by NeuroSky to Reseller

shall become immediately due and payable upon the effective date of termination;

(c) Reseller shall return or destroy all copies of the Confidential

Information within thirty (30) days after the effective date of the termination. At the request of

NeuroSky, the president or the equivalent officer of Reseller will certify in writing that Reseller

has complied with its obligations hereunder; and

(d) Neither NeuroSky nor the Reseller shall be liable to the other, because

of such expiration or termination, for compensation, reimbursement or damages (i) for the loss

of prospective profits, anticipated sales or goodwill, (ii) on account of any expenditures,

investments or commitments made by either, or (iii) for any other reason whatsoever based

upon the result of such expiration or termination.

15. Limitation of Liability.













16. Miscellaneous.

16.1 Foreign Laws. Reseller shall regularly and continuously inform NeuroSky of

any and all requirements of laws, statutes, ordinances, rules and regulations of any and all

governmental and/or quasi-governmental authorities in the Territory directly or indirectly

affecting the sale, license, use or distribution of the Products or NeuroSky’s trade name,

trademarks or other commercial or intellectual property interests, including, but not limited to,

certification of the Products from the proper authorities. Reseller shall comply with all

applicable local and national laws and regulations.

16.2 Foreign Corrupt Practices Act. Reseller warrants that in the performance of its

obligations under the Agreement, it shall not act in any fashion or take any action which will

render NeuroSky liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits

the offering, giving or promising to offer or give, directly or indirectly, money or anything of value

to any official of a government, political party or instrumentality thereof in order to assist it or

NeuroSky in obtaining or retaining business.

16.3 Currency Exchange. Unless NeuroSky provides written instructions otherwise,

all payments by or to NeuroSky hereunder shall be in United States currency drawn on a United

States bank. The amounts owed to NeuroSky shall be determined by the foreign currency of

the country specified in Reseller address as set forth above/US.$ exchange ratio quoted by The

Wall Street Journal as of the close of business on the payment due date. Payments based on

sales in other currencies shall be converted to U.S. Dollars according to the official rate of

exchange for that currency, as published in The Wall Street Journal (Western Edition), on the

last day of the calendar quarter in which the payment accrued (or, if not published on that day,

the last publication day for The Wall Street Journal during that month).

16.4 Choice of Law. The Agreement is governed by and construed in accordance

with the laws of the United States and the State of California, as applied to agreements entered

into and to be performed entirely within California and between California residents. The

parties agree that the United Nations Convention on Contracts for the International Sale of

Goods (1980) is specifically excluded from application to the Agreement.

16.5 Language. The official language of the Agreement exclusively shall be, and all

communications and agreements between the parties exclusively shall be made in, the English

language. The parties hereto waive any rights they may have under any other law to have the

Agreement written in another language, and any translation of the Agreement will be solely for

the convenience of the parties hereto.

16.6 Amendment. The Agreement may be amended or modified only by a writing

that is signed by duly authorized representatives of both parties.

16.7 Waiver. No term or provision hereof will be considered waived by either party,

and no breach excused by either party, unless such waiver or consent is in writing signed on

behalf of the party against whom the waiver is asserted. No consent by either party to, or

waiver of, a breach by either party, whether express or implied, will constitute a consent to,

waiver of, or excuse of any other, different, or subsequent breach by either party.

16.8 Force Majeure. Except for the payment of money, neither party will be liable

for any failure or delay in performance under the Agreement which might be due, in whole or in

part, directly or indirectly, to any contingency, delay, failure, or cause of any nature beyond the

reasonable control of such party, including without limitation, fire, explosion, earthquake, storm,

flood or other weather, unavailability of necessary utilities or raw materials, strike, lockout,

unavailability of components, unavailability of manufacturing capacity, activities of a

combination of workmen or other labor difficulties, war, insurrection, riot, act of God or the

public enemy, law, act, order, export control regulation, proclamation, decree, regulation,

ordinance, or instructions of Government or other public authorities, or judgment or decree of a

court of competent jurisdiction (not arising out of breach by such party of the Agreement). In

the event of the happening of such a cause, the party whose performance is so affected will

give prompt, written notice to the other party, stating the period of time the cause is expected to

continue. Such delay will not be excused under this Section for more than one hundred eighty

(180) days.

16.9 Severability. If any part of the Agreement is found invalid or unenforceable,

such part will be amended to achieve as nearly as possible the same economic effect as the

original provision and the remainder of the Agreement will remain in full force.

16.10 Equitable Relief. Either party may have injunctive, preliminary or other

equitable relief to remedy any actual or threatened dispute that is excepted from compulsory


16.11 Entire Agreement. The Agreement, including all Exhibits hereto, constitutes

the entire agreement between the parties relating to this subject matter and supersedes all prior

or simultaneous representations, discussions, negotiations, and agreements, whether written or

oral. This original of the Agreement has been written in English and no translation will have any

effect on the interpretation thereof.

16.12 Venue. Except with respect to those claims which are subjected to arbitration

herein, the parties hereby submit to the exclusive jurisdiction of, and waive any venue objection

against, the state and federal courts located in the State of California and the County of Santa

Clara, in any litigation arising out of the Agreement.

16.13 Notices. All notices, reports, requests, approvals and other communications

required or permitted under the Agreement must be in writing. They will be deemed given

when required if: (i) delivered personally, or (ii) sent by commercial overnight courier with

written verification of receipt. Such notice shall be treated as having been received upon actual

receipt. All communications must be sent to the receiving party’s addresses as set forth in the

Agreement or to such other address that the receiving party may have provided for purpose of

notice, in a manner provided in this Section:

16.14 Allocation of Risk. The sections on limitations of liability, disclaimer of

warranties and warranties allocate the risks in the Agreement between the parties. This

allocation is reflected in the pricing of the Products and is an essential element of the basis of

the Agreement.

16.15 Relationship of the Parties. The parties to the Agreement are independent

contractors. There is no relationship of agency, partnership, joint venture, employment, or

franchise between the parties in any way. Neither party nor its employees has the authority to

bind or commit the other party in any way or to incur any obligation on its behalf.

16.16 Assignment. NeuroSky may assign the Agreement to any person to whom it

transfers all or substantially all of its proprietary rights in the Products. Otherwise, neither party

may assign, voluntarily, by operation of law or otherwise, any rights or delegate any duties

under the Agreement without the other party’s prior written consent, and any attempt to do so

without that consent will be void. The Agreement will bind and inure to the benefit of the parties

and their respective successors and permitted assigns.

16.17 Arbitration. Except with respect to claims for a breach of any intellectual

property-related rights hereunder, any dispute between NeuroSky and Reseller under the

Agreement involving its interpretation or the obligations of a party hereto, shall be determined

by binding arbitration conducted in English. Arbitration shall be held in accordance with the

Rules of the American Arbitration Association (“AAA”) in the City of San Jose, State of

California of the United States. Arbitration may be conducted by one (1) attorney arbitrator by

mutual agreement or by three (3) arbitrators if the parties are unable to agree on a single

arbitrator within thirty (30) days of first demand for arbitration. All arbitrators are to be selected

from a panel provided by the AAA. If a three-arbitrator panel is necessary, the chairman and

one other arbitrator shall be attorneys-at-law, and the third arbitrator shall have a background or

training in either computer law, computer science, computer engineering, or marketing of

computer-industry products. The arbitrators shall have the authority to permit discovery, to the

extent deemed appropriate by the arbitrators, upon request of a party. The arbitrators shall

have no power or authority to add to or detract from the agreements of the parties. The costs

of the arbitration shall be borne equally pending the arbitrator’s award. The arbitrator shall

have the authority to grant any temporary, preliminary, or permanent injunctive or other

equitable relief in a substantially similar form, that would otherwise be granted by a court. The

arbitrators shall have no authority to award punitive or consequential damages. The resulting

arbitration award may be enforced by all lawful remedies, including without limitation injunctive

or other equitable relief in any court of competent jurisdiction. The trial courts of the County of

Santa Clara, State of California, and the United States District Court for the Northern District of

California are courts of competent jurisdiction. The parties agree to submit to the jurisdiction of

those courts, as applicable, for all purposes concerning any arbitration.

16.18 Survival. The sections of the Agreement that, by their terms, are intended to

survive termination of the Agreement will survive any termination of this Agreement.

Last updated November 9, 2012 Version 1.1

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About NeuroSky

NeuroSky technologies enable the most insightful and easy-to-understand health and wellness biometrics for mobile solutions, wearable devices, and service providers. The company’s proprietary, market-leading biosensor technologies provide a foundation for analyzing biometric data in a way that’s never before been practical. NeuroSky-enabled solutions deliver unique insights into body and mind health and wellness that can motivate people to make better lifestyle choices.

NeuroSky Technology Fast 500TM 2014 Recipient Awarded by Deloitte LLP »