NEUROSKY RESELLER AGREEMENT
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
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.
6.1 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
6.3 Disclaimer of Warranty. NEUROSKY DISCLAIMS ALL WARRANTIES NOT
SPECIFICALLY SET FORTH IN THE AGREEMENT, INCLUDING, WITHOUT LIMITATION,
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NEUROSKY DOES
NOT PROMISE THAT THE PRODUCTS ARE ERROR-FREE OR WILL OPERATE WITHOUT
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.
10.1 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.
(b) Limitations. THE FOREGOING STATES THE ENTIRE LIABILITY OF
NEUROSKY FOR PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL
PROPERTY RIGHTS INFRINGEMENT BY ANY PRODUCT FURNISHED UNDER THE
AGREEMENT, AND IS RESELLER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO
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
(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
14.2 Causes for Termination. The Agreement and all licenses under the Agreement
(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
(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
(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.
15.1 Consequential Damages. NEITHER PARTY SHALL BE RESPONSIBLE AND
SPECIFICALLY DISCLAIMS LIABILITY FOR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL AND INDIRECT DAMAGES, HOWEVER ARISING, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15.2 Limitations of Liability. EXCEPT FOR NEUROSKY’S LIABILITY UNDER ITS
INDEMNIFICATION OBLIGATIONS HEREIN, NEUROSKY’S LIABILITY IN CONNECTION
WITH THE AGREEMENT EXCEED (A) THE SUM OF RESELLER’S PAYMENTS TO
NEUROSKY UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS
IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY OR (B) ONE
HUNDRED THOUSAND DOLLARS (US$100,000), WHICHEVER IS LESS. IN NO EVENT
WILL NEUROSKY’S LIABILITY UNDER THIS SECTION EXCEED THE LIMITS OF ITS
INSURANCE, OR $500,000, WHICHEVER IS GREATER.
16.1 Foreign Laws. Reseller shall regularly and continuously inform NeuroSky of
any and all requirements of laws, statutes, ordinances, rules and regulations of any and all
governmental and/or quasi-governmental authorities in the Territory directly or indirectly
affecting the sale, license, use or distribution of the Products or NeuroSky’s trade name,
trademarks or other commercial or intellectual property interests, including, but not limited to,
certification of the Products from the proper authorities. Reseller shall comply with all
applicable local and national laws and regulations.
16.2 Foreign Corrupt Practices Act. Reseller warrants that in the performance of its
obligations under the Agreement, it shall not act in any fashion or take any action which will
render NeuroSky liable for a violation of the U.S. Foreign Corrupt Practices Act, which prohibits
the offering, giving or promising to offer or give, directly or indirectly, money or anything of value
to any official of a government, political party or instrumentality thereof in order to assist it or
NeuroSky in obtaining or retaining business.
16.3 Currency Exchange. Unless NeuroSky provides written instructions otherwise,
all payments by or to NeuroSky hereunder shall be in United States currency drawn on a United
States bank. The amounts owed to NeuroSky shall be determined by the foreign currency of
the country specified in Reseller address as set forth above/US.$ 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
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
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