General Terms and Conditions
(Last Updated: May 15, 2020)
These general terms and conditions (“Terms and Conditions”), along with the service agreement between us (the “Agreement”) and any Additional Terms, as defined below, govern your use of and access to our cloud-based analytics platform and support services (“Subscription Service”). The terms of the Agreement and Additional Terms will control in the event of a conflict with these general Terms and Conditions.
- LICENSE GRANT; OWNERSHIP
(A) License Grant. Subject to the Agreement and your payment of all Fees required pursuant to the Agreement, Neuro-ID grants to you and your Authorized Users a terminable, revocable, non-exclusive, non-transferable license (without the right to sublicense) during the Term of the Agreement to access and use the Subscription Service solely in accordance with applicable Documentation and solely for your internal business purposes. Neuro-ID reserves the right to modify the Subscription Service at any time. You understand that the Agreement grants certain rights of access only, and that nothing in the Agreement shall be interpreted to require delivery of a copy of any software to you or installation of a copy of such software upon your computers or systems, other than the installation of the Code on your website. You further acknowledge that the license granted pursuant to the Agreement is not a sale and does not transfer to you title or ownership of any of the Neuro-ID Materials or a copy of the Neuro-ID Code, but only a right of limited use. The Agreement does not transfer any title or any ownership right or interest in any Reports, Neuro-ID Code or Documentation (collectively, the “Neuro-ID Materials”) nor in any Intellectual Property Rights in the Neuro-ID Materials, to you. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in the Agreement, is void from its inception. Neuro-ID reserves all rights not expressly granted under the Agreement.
(B) Definitions for Certain Capitalized Terms that are Used Above: “Documentation” means any proprietary documentation made available to you by Neuro-ID for use with the Subscription Service, including any documentation available on the Neuro-ID website (“Website”) or otherwise. “Intellectual Property Rights” means patent rights, trademark rights, copyrights, moral rights, publicity and privacy rights, sui generisdatabase rights, and all other proprietary rights, throughout the world. “Neuro-ID Code” means any computer code (source, object or otherwise) used to provide the Subscription Service or to which access is provided to you under the Agreement, including our proprietary software which analyzes End User behavior and generates analytics reports (“Reports”). “Authorized User” means your employee, consultant, agent or other user that you and we have expressly authorized to use and access the Subscription Service. Any other capitalized but undefined terms used herein shall have the meaning given to them in the Agreement.
(C) Additional Terms. Your use of the Subscription Service is subject to any additional restrictions, requirements, limitations and obligations set forth (a) in the Website as applicable to use of the Subscription Service and (b) in any additional written contract pertaining to the Subscription Service which is in effect between you and us (collectively, “Additional Terms”).
You acknowledge and agree that the Neuro-ID Materials are the property of Neuro-ID or its licensors, contain valuable assets, proprietary information and property of Neuro-ID, and are provided to you only for use strictly in accordance with the Agreement. You agree not to do any of the following without Neuro-ID’s prior written consent: (a) download, use, install, deploy, perform, modify, license, display, reproduce, distribute or disclose the Neuro-ID Materials (even if merged with other materials as a compilation) other than for your own internal business purposes and only among your Authorized Users; (b) sell, license, lease, transfer, rent, loan, pledge, or allow any third party access to, the Neuro-ID Materials; (c) modify, translate, reverse engineer (except to the limited extent required to be permitted by any applicable laws), decompile, disassemble, create derivative works based on, sublicense or distribute any Neuro-ID Materials; (d) use the Neuro-ID Materials for timesharing or service bureau purposes or otherwise for the benefit of a third party; or in any way other than in its intended manner; (e) remove, alter or obscure any copyright notice, proprietary notice, labels or marks on the Neuro-ID Materials; (f) bypass the measures we may use to prevent or restrict access to the Subscription Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Subscription Service or the Neuro-ID Materials; (g) share any user authentication information and/or password related to the Subscription Service with any third party to allow a third party to access the Subscription Service or Neuro-ID Materials, (h) use Neuro-ID Materials to develop any similar software/service; (i) use Neuro-ID Materials in violation of any federal, state, or local law, rule, or regulation, or any third-party right; (j) take any action that imposes, or may impose an unreasonable or disproportionately large load on our infrastructure; (k) upload invalid data, viruses, worms, or other software agents through the Subscription Service; or (l) collect information or content from the Website using automated means (such as harvesting bots, robots, spiders, or scrapers). You are responsible for all use (including the use by your Authorized Users or any of your employees or agents) of any Neuro-ID Materials and for compliance with the Agreement.
- PROPRIETARY RIGHTS
(A) Definitions used in this Section. “Anonymous Data” means anonymized, de-identified data on the interactions of End Users with your site (in a way not reasonably identifiable as coming from any particular End User), resulting from your use of the Subscription Service and/or our provision of the Subscription Service to you. “Developments” means the collective ideas, know-how, inventions, methods, or techniques developed or conceived as a result of providing Neuro-ID Materials hereunder, including without limitation any derivative works, improvements, enhancements and/or extensions made to Neuro-ID Materials and all Intellectual Property Rights therein and thereto throughout the world. “Feedback” means collectively, suggestions, ideas, feedback, reports, outcome data, correlate data, or error identifications related to Neuro-ID Materials or your use and evaluation thereof. “Neuro-ID Data” means any data (including meta-data) or information provided by Neuro-ID or generated by or in connection with the provision or use of our Subscription Service. Neuro-ID Data shall not include data or information otherwise considered “Your Data”. “Your Data” means any data, content, or information directly provided to us or our Subscription Service by you or any Authorized User. “Your Marks” means your trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
(B) Your Proprietary Rights and License. Neuro-ID hereby acknowledges that, as between you and Neuro-ID and subject to subsections D through F below, you own all legal right, title, and interest in and to (i) Your Data and (ii) Your Marks and all Intellectual Property Rights therein. Nothing in the Agreement will confer on Neuro-ID any right of ownership or interest in Your Marks or the Intellectual Property Rights therein. You reserve all rights in Your Marks not expressly granted under the Agreement. Notwithstanding the foregoing: (i) you hereby grant Neuro-ID a non-exclusive and perpetual right and license to (1) store, transmit, manipulate/transform, copy, use, modify, distribute, display and disclose Your Data solely to the extent necessary for Neuro-ID to perform its obligations under the Agreement (including sharing it with business partners to the extent that such partners have integrated our Subscription Service into their products or interfaces, such as certain platform providers, in the context of allowing your access to such data), (2) copy, modify and use Your Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes and (3) copy, use, modify, distribute, display and disclose Your Data on a de-identified and anonymized basis (meaning neither you nor your End Users nor any Personally Identifiable Data about you or them can reasonably be discerned, even by means of reasonably foreseeable reverse engineering from the data) in connection with providing analytics services; and (ii) Neuro-ID may use Your Marks (unless you advise us otherwise via email or other writing), in presentations, marketing materials, financial reports and also in website listings (including links to your website) for the purpose of advertising or publicizing Neuro-ID’s business.
(C) Warranties Regarding Your Data. You represent and warrant to Neuro-ID that you: (i) are the owner or authorized to use and share Your Data; (ii) are solely responsible for Your Data; and (iii) acknowledge and agree that Neuro-ID neither controls nor guarantees the accuracy, integrity, or quality of Your Data. You will not use the Subscription Service to upload, record or otherwise transmit any data that: infringes any third party’s Intellectual Property Right; violates any law, statute, ordinance or regulation; or is defamatory, trade libelous, threatening, harassing, obscene, harmful, or pornographic. Under no circumstances will Neuro-ID be liable to you or to any person or entity for any alleged damages sustained by the distribution of Your Data as contemplated to provide the Subscription Service. Upon termination of the Agreement, you agree that any of Your Data uploaded to us will not be returned to you.
(D) Neuro-ID Proprietary Rights. You hereby acknowledge that, as between you and Neuro-ID, Neuro-ID owns all legal right, title and interest in and to (i) the software and data used to deliver our Subscription Service (including, without limitation, the Neuro-ID Website, the Neuro-ID Materials, and the Neuro-ID Data), (ii) the Developments, and (iii) all Intellectual Property Rights in the foregoing. Without limiting the foregoing, Neuro-ID shall own all right, title, and interest in and to any Developments resulting from any work performed to customize the Subscription Service for you. If you or any Authorized User is ever held to have any right or interest in or to the Neuro-ID Materials or any Developments, you hereby assign, and shall procure that the Authorized User assigns, to Neuro-ID all such right, title, and interest, including all Intellectual Property Rights therein. Nothing in the Agreement will confer on you any right of ownership or interest in the Neuro-ID Materials, the Developments, or the Intellectual Property Rights therein. Neuro-ID reserves all rights in the Neuro-ID Materials not expressly granted under the Agreement.
(E) Feedback. If you provide Neuro-ID with any Feedback, you provide such Feedback volitionally and of your own choosing (i.e., you are not required to provide Feedback), and you hereby assign to Neuro-ID all right, title and interest in and to all Feedback, including all Intellectual Property Rights therein, and shall assist Neuro-ID in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback.
(F) Anonymized Behavioral Data. The parties agree that in connection with the Subscription Service, Neuro-ID shall have the right to collect and store the Anonymous Data collected by our Code from the form interactions of End Users. The parties agree that, for purposes of the Agreement, the Anonymous Data shall be owned by Neuro-ID. Neuro-ID will not use the Anonymous Data in any manner that identifies it as your data. The parties further agree that, for purposes of the Agreement, the Anonymous Data shall not be considered Your Data.
We use commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of Your Data. You acknowledge that, notwithstanding such security precautions, use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to Your Data. Accordingly, we cannot and do not guarantee the privacy, security, integrity or authenticity of any information so transmitted over or stored in any system connected to the Internet or that any such security precautions will be adequate or sufficient.
In addition to the foregoing, we agree to the following additional data security obligations (which are met by a combination of our security procedures and those of our third party providers such as Amazon Web Services (“AWS”)): We shall maintain appropriate technical and organizational measures intended to prevent unauthorized or unlawful processing of your Confidential Information and to prevent any loss, destruction or unauthorized disclosure thereof. We shall engage a reputable third party auditor to perform a SSAE 16 (or any successor thereto) SOC 2 (type I) audit related to the Subscription Service provided, and shall promptly address and resolve all material weaknesses found by such audit. We will provide a copy of our SSAE SOC 2 (type 1) report which includes security measures, upon your request. If we discover or reasonably suspect unauthorized access, acquisition, disclosure, or use (“Security Breach”) of your Confidential Information, we shall promptly: (i) notify you of such Security Breach; (ii) investigate and remediate the effects of the Security Breach; and (iii) provide you with assurance reasonably satisfactory that such Security Breach shall not recur. Notwithstanding the foregoing, we are expressly not responsible for the failures of our third-party service providers such as AWS. We are only responsible for ensuring that they are reputable providers and that they commit to standards consistent with those herein.
We have the right to delete your data at the termination of this Agreement, and in addition you acknowledge that in our normal course of operations we have the right to delete and/or move to long term storage (which may delay its accessibility) data that is at least one year old.
- YOUR RESPONSIBILITIES
(A) Responsibilities. You are responsible for maintaining the security of any access codes, passwords, connectivity standards or protocols, necessary to enable you to obtain access to the Subscription Service. You are also responsible for protecting and backing-up the data created, used, stored and/or transmitted in connection with the Subscription Service. Neuro-ID shall have no liability whatsoever for any loss of, or failure to recover, such data, or any loss or disruption caused by failure to properly back-up Your Data on a periodic basis. You are also responsible for (a) obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Subscription Service; (b) paying all third-party fees and access charges (e.g., ISP, telecommunications) incurred while using the Subscription Service; (c) providing sufficient bandwidth and network connectivity to ensure all Authorized Users can access and use the Subscription Service satisfactorily; (d) ensuring your firewalls and proxies permit access to the Neuro-ID-owned URLS / IP Addresses through the TCP/IP Port which we advise you and meet any other technical specifications of which we reasonably advise you; (e) determining the security configurations of your systems (e.g. password construction rules and expiration intervals); (f) ensuring the confidentiality of any Authorized User accounts and passwords assigned to them for use with the Subscription Service and for notifying us of assigned Authorized User accounts that need to be terminated; (g) promptly notifying us of any actual or reasonably suspected information security breaches, of which you become aware, including without limitation compromised Authorized User accounts; and (h) for periodically reviewing your security configurations and access rights to determine if they are appropriate for your needs.
Our Subscription Service is designed not to interfere with your normal business operations on your website. Email support during normal non-holiday business hours of 9am-5pm Mountain Time (“Working Hours”) is included. We endeavor to initially reply to all Urgent emails within three (3) Working Hours, and to all other emails within two (2) business days. “Urgent” means that the Subscription Service is either not functioning at all or its primary function is greatly impaired without a reasonable work-around available, in all cases other than as a result of your equipment or factors outside of our control.
This section sets forth the terms under which Confidential Information disclosed by one party (“Discloser“) to the other Party (“Recipient“) is to be treated. “Confidential Information” means all information disclosed by the Discloser hereunder, whether before or after the effective date of the Agreement, in whatever form (whether tangible or intangible, oral, written, electronic or discernable by the Recipient by inspection), that should reasonably be understood by the Recipient, because of legends or other markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential. For the avoidance of doubt our “Confidential Information” includes but is not limited to the Neuro-ID Data, the Documentation, and Reports. Your Confidential Information includes Your Data. Notwithstanding the foregoing, Confidential Information does not include any information that is or becomes known to the general public without violation of the Agreement, or which is already in the Recipient’s possession prior to disclosure by the Discloser, or which is independently developed by the Recipient without the use of Discloser’s Confidential Information. Recipient will protect Discloser’s Confidential Information from being disclosed using at least the same care it takes to prevent disclosure of Recipient’s own confidential information (and not less than ordinary reasonable care). Neither party will use or disclose the other party’s Confidential Information without the Discloser’s prior written consent except as permitted under this Agreement, for the purpose of performing its obligations under the Agreement, or if required by law, regulation or court order, in which case, the party being compelled to disclose Confidential Information will give the Discloser as much notice as is reasonably practicable prior to disclosing such information. Upon termination of the Agreement, except to the extent otherwise herein provided, the parties will promptly either return or destroy all Confidential Information of the other party and, upon request, provide written certification of such.
(A) We only Provide Information; We Do Not Personally Interact With, or Make Decisions About What to Offer, Your End Users. Interpreting the results of and using our Subscription Service is both your sole responsibility and based on inferences which may or may not prove accurate. The information we provide through the Neuro-ID Materials is believed by us to be accurate and reliable at the time of publication, but is not guaranteed; we also disclaim any obligation to update such Neuro-ID Materials. All use of and reliance on Neuro-ID Materials are at your sole risk. Neuro-ID is not liable or responsible for any damages, losses, or expenses whatsoever arising from any errors or omissions in its Neuro-ID Materials. Moreover, how you choose to use data we provide is solely your decision and at your risk. We are not responsible to you (or your End Users or anyone else) for any decisions you or they make or actions you or they take whatsoever, even if you or they considered or relied (directly or indirectly) on data we provided in making such decisions/taking such actions.
(B) General Disclaimer. The information included in or available through the Neuro-ID Materials and Subscription Service may include inaccuracies or errors. Neuro-ID may make improvements and/or changes in the Subscription Service or any component thereof at any time, with or without notice. Neuro-ID does not represent or warrant that the Subscription Service will be uninterrupted or error-free or that defects will be corrected. THE SUBSCRIPTION SERVICE AND NEURO-ID MATERIALS ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY NEURO-ID, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SUBSCRIPTION SERVICE AND NEURO-ID MATERIALS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. NEURO-ID DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICE AND/OR NEURO-ID MATERIALS WILL MEET YOUR NEEDS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THE AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SUBSCRIPTION SERVICE.
- SERVICE LEVELS
Neuro-ID does not guarantee the Subscription Service will be operable at all times. Subscription Service may be interrupted by many factors, including but not limited to the Exclusions set forth below. Notwithstanding the foregoing, we warrant that our Subscription Service will have at least 99.5% Availability, subject to the Exclusions. “Availability” means that we are able to accept data from you, process such data, and return results substantially in accordance with our Documentation, thereby providing our core services as described in Section A of the Agreement. The following items are deemed the “Exclusions” and do not count against us in calculating Availability: unavailability (1) caused by outages to any public Internet backbones, networks or servers, including hosting services such as AWS, (2) caused by any failures or misconfigurations of your (or your End Users’) equipment, systems or local access services, (3) for previously scheduled or emergency maintenance or (4) relating to events beyond our control. In addition, if an End User’s browser blocks, or fails to operate correctly with, Java Script, our Code will not work for that End User and this is not deemed an error or unavailability. If we fail to meet this Availability standard for any full two (2) months in a row, or any three (3) out of any four (4) consecutive months, your sole recourse is termination of the Agreement. You must notify us of each month for which we did not achieve the aforesaid Availability standard (“Failed Month”) within thirty (30) days of the end of the Failed Month. If you do not timely report a Failed Month to us, you forever waive any termination rights associated with that month.
- EXPORT REGULATIONS
You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You covenant that you will not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Neuro-ID under the Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, Neuro-ID from and against any fines or penalties that may arise as a result of your breach of this provision.
- DISPUTES; GOVERNING LAW
(A) Binding Arbitration. Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be submitted to the American Arbitration Association (“AAA”) for mandatory binding arbitration in front of a single arbitrator chosen in accordance with the AAA Commercial Arbitration Rules and Mediation Procedures (using Expedited Procedures) (“Rules”) available at https://www.adr.org/sites/default/files/Commercial%20Rules.pdf as of the date of the Agreement. Unless provided otherwise herein, the arbitrator may not award non-monetary or equitable relief of any sort. She shall have no power to award damages inconsistent with the Agreement, and the parties expressly waive their right to obtain such damages in arbitration. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to enforce the results of the arbitration or to comply with legal or regulatory requirements. Before making any such disclosure, a party shall give written notice to the other party and shall afford such party a reasonable opportunity to protect its interests. The arbitrator shall render its award in writing and will include the findings of fact and conclusions of law upon which the award is based. The result of the arbitration shall bind the parties and judgment on the arbitrators’ award may be entered in any court having jurisdiction. In addition to any and all other relief to which a party may be entitled, the arbitrator shall award reasonable attorneys’ fees and costs, including reasonable expert witness fees and costs (if applicable), to the prevailing party (should there be one) in any such arbitration. In the event of conflict between the Agreement and the Rules, the Agreement shall be first in precedence.
(B) Waiver of Jury Trial; Individual Basis; Equitable Relief. THE PARTIES SURRENDER AND WAIVE THE RIGHT TO SUBMIT ANY DISPUTE TO A COURT OR JURY, OR TO APPEAL TO A HIGHER COURT. THE PARTIES AGREE TO ARBITRATION ON AN INDIVIDUAL BASIS. If any provision of this arbitration section is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). Notwithstanding the foregoing, nothing in the Agreement shall prohibit either party (prior to the commencement of arbitration) from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm which may be inadequately compensable by monetary damages, for example in respect of a threatened breach of the confidentiality or license-restriction provisions hereof.
(C) Where Held; Language; Governing Law. The place of arbitration shall be the county, city and state of New York and the Agreement shall be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws and the arbitrator shall follow the law and judicial precedents that a United States District Judge sitting in the Southern District of New York would apply to the dispute.
- FEES AND TAXES
(A) Fees. You will pay us via check or ACH all fees described a mutually agreed upon order form describing our services and fees (an “Order Form”) or in any Additional Terms between us and you (the “Fees”), in each case subject to the terms and conditions set forth herein and/or in any applicable Order Form. Payment obligations are non-cancelable and unless otherwise expressly stated herein or in the Order Form/Additional Terms, fees paid are non-refundable. Annual Fees for the Subscription Service (including any set up or initiation fees) are payable yearly in full in advance unless expressly stated otherwise in the Order Form/Additional Terms. Any variable or non-recurring fees incurred which are not payable in advance under the Order Form/Additional Terms shall become payable in the monthly period in which they were incurred and shall be paid within thirty (30) days of the date on which they are invoiced.
(B) Calculation of Fees. A description of how fees for the Subscription Service are calculated are in each applicable Order Form.
(C) Overdue Charges; Collection Fees. Late payments will accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. You are responsible for any collection fees (including attorney’s fees) we incur in trying to collect late payments from you.
(D) Taxes. You are responsible for payment of all sales, use, property, value-added, withholding, or other federal, state or local taxes related to the provision of the Subscription Service, except for taxes based solely on our net income. If we are required to pay any such taxes based on the licenses granted in this Agreement or on your use of the Subscription Service, then such taxes will be billed to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
(A) Mutual Indemnity. Each party (as “Indemnifying Party”) shall indemnify, hold harmless, and defend the other party and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, the “Indemnified Party”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that are incurred by Indemnified Party (collectively, “Losses”) arising out of any third party claim related to a material breach or non-fulfillment of any term of this Agreement by Indemnifying Party (including, for you, by your employees, agents and Authorized Users).
(B) Infringement Indemnity. In addition, we (as Indemnifying Party) shall indemnify, hold harmless, and defend you and your officers, directors, employees, agents, affiliates, successors and permitted assigns as the “Indemnified Party” from and against any and all Losses arising out of any third party claim to the extent that our Subscription Service infringes any third party’s United States patent, trademark or copyright rights, unless an Infringement Exception applies. To the extent an Infringement Exception applies, you shall be deemed to be the Indemnifying Party and you shall indemnify us for our Losses pursuant to the preceding paragraph (Section 13(A)).
(C) Definition of Infringement Exception. An Infringement Exception means: any actual or alleged Intellectual Property infringement related to our Subscription Service to the extent caused by (a) use of our Subscription Service in violation of this Agreement; (b) combination, operation or use of our Subscription Service with products, devices, software or software/services not supplied by us to the extent the infringement would have been avoided in the absence of such combination, (c) unauthorized alteration or modification of our Neuro-ID Materials by any party other than us (or an entity acting with express written approval of a Vice President or higher of ours) to the extent the infringement would have been avoided in the absence of such modification, (d) any infringement that would have been avoided by use of a newer version of our Subscription Service if we had offered or made such newer version available to you at no additional charge, (e) any use you make of the Subscription Service after we expressly advise you in writing to cease using them, and/or (f) our compliance with your designs, specifications, requests, or instructions to the extent the claim is based on such compliance.
(D) Our additional obligations and rights if a claim has occurred or seems at risk. To the extent that an infringement claim has been made or we believe an infringement claim is at risk of occurring, we have the right to require you to stop using the Subscription Service while we promptly and at our own expense endeavor to: (i) obtain for you the right to continue using the Subscription Service in accordance with this Agreement and the applicable Order Form(s); (ii) modify the item(s) in question to no longer be infringing; or (iii) replace such item(s) with a non-infringing functional equivalent. If, after making commercially reasonable efforts, we determine in good faith that options (i), (ii) and (iii) are not feasible, we will remove the infringing item(s) from the Subscription Service or terminate this Agreement and any/all affected Order Forms, and refund to you on a pro rata basis any Fees you have paid for such infringing element(s) that are unused as of the removal date, or if we terminate this Agreement/Order Forms, we will refund any prepaid Fees for periods for which you will not receive access to the Subscription Service. Our actions to avoid infringement under this paragraph do not negate nor affect our obligations to indemnify you under Section 13(B).
(E) Procedures. The indemnification obligations set forth above are subject to the following conditions: (a) that the Indemnified Party promptly notifies the Indemnifying Party in writing of each such claim or suit and provides the Indemnifying Party with all information known to Indemnified Party relating thereto, (b) that the Indemnifying Party has sole control of the defense and/or settlement (although the Indemnified Party may participate with its own counsel at its own expense); and (c) that the Indemnified Party cooperates as reasonably requested with the Indemnifying Party in the settlement and/or defense. The Indemnified Party will be reimbursed for its reasonable out-of-pocket expenses incurred in providing any cooperation requested by the Indemnifying Party. The Indemnifying Party is not entitled to settle any claim without the Indemnified Party’s prior written consent (not to be unreasonably withheld) if the settlement admits any culpability on the part of the Indemnified Party or requires any material action by the Indemnified Party. In defending any claims hereunder, the Indemnifying Party shall employ counsel reasonably experienced in defending similar claims.
- ADDITIONAL MARKETING RIGHTS. Unless you opt out in writing of this section, you agree to participate in a case study/white paper, to be a reference customer upon our request and to allow us to release a press release regarding our relationship if we so choose. These requirements are limited as follows: (a) you will never be asked to, nor expected to, be dishonest in your responses; (b) our requests must be reasonable and reasonably limited in number, scope and effort required; (c) you will have the right to approve any use we make of Your Marks and the content that relates to you (if your name or Marks is used) in any white paper or press release; and (d) if you incur any travel at our request (not expected), we will reimburse your reasonable travel expenses, provided that the parties shall agree in writing regarding the actual travel to be incurred on each occasion.
- U.S. GOVERNMENT RIGHTS. If the use of the Subscription Service is being acquired by or on behalf of, or licensed to, the United States government or any agency thereof, or by a U.S. Government prime contractor or subcontractor (at any tier), then in such case: (1) the Government’s rights in the Neuro-ID Materials (including Neuro-ID Code), including its rights to use, modify, reproduce, release, perform, display or disclose the Neuro-ID Materials (including Neuro-ID Code), will be subject in all respects to the commercial license rights and restrictions provided in the Agreement and shall be no broader than those herein set forth, and (2) the Neuro-ID Code will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of the Neuro-ID Materials by the U.S. Government and/or its agencies/contractors will be governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement. All Neuro-ID Materials (including Neuro-ID Code) were developed solely at private expense.
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