End User License Agreement

INTERAXON END USER LICENSE AGREEMENT

PLEASE REVIEW THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY. THIS EULA IS A BINDING LEGAL AGREEMENT BETWEEN INTERAXON INC. AND/OR ITS AFFILIATES (“INTERAXON“) AND YOU AND, IF APPLICABLE, THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, “YOU“) REGARDING THE SOFTWARE THAT YOU ARE INSTALLING, DOWNLOADING, COPYING, ACCESSING OR USING (INCLUDING ANY FUTURE UPDATES, UPGRADES OR VERSIONS OF THE SOFTWARE) (COLLECTIVELY, THE “SOFTWARE“), AND ANY ASSOCIATED INTERAXON SERVICES AND ACCOMPANYING DOCUMENTS, INFORMATION, MANUALS OR OTHER RELATED MATERIALS PROVIDED BY INTERAXON AS PART OF, OR IN CONNECTION WITH THE SOFTWARE.

THE SOFTWARE AND THE SERVICES ARE FOR INFORMATION PURPOSES ONLY AND ARE NOT INTENDED TO BE USED FOR ANY OTHER PURPOSE, INCLUDING MEDICAL OR DIAGNOSTIC-RELATED PURPOSES.

THE SOFTWARE, USER INFORMATION, USER INTERFACE, SUPPORT, COMMUNICATION AND AGREEMENT, ARE ONLY PROVIDED IN CERTAIN LANGUAGES. DO NOT USE THE MUSE OR OTHER INTERAXON PRODUCTS UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND ONE OF THE AVAILABLE LANGUAGES. FURTHER, DO NOT INSTALL, DOWNLOAD OR USE THIS SOFTWARE UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND THIS AGREEMENT.

TO ENSURE THAT YOU UNDERSTAND THE ABOVE TWO PARAGRAPHS, TRANSLATIONS OF THESE PARAGRAPHS ARE SET OUT AT THE END OF THIS DOCUMENT (UNDER THE HEADING ‘TRANSLATIONS’).

EULA TERMS

BY INSTALLING, DOWNLOADING, COPYING, ACCESSING OR USING THE SOFTWARE, OR OTHERWISE ACCEPTING THIS EULA, OR ‘CLICKING’ ACCEPT (IF APPLICABLE), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT UNDERSTAND OR AGREE, YOU MUST NOT INSTALL, DOWNLOAD, COPY, ACCESS OR USE THE SOFTWARE.

LICENSE GRANT AND RESTRICTIONS.
- 1.1 License Grant. Interaxon grants you a limited, personal, non-transferable, non-sub-licensable, and non-exclusive license to install and use a single copy of the Software for your information and non-commercial use as part of the product or hardware supplied by or on behalf of Interaxon in which the Software is contained or for which it is provided, together with any applicable Interaxon Services (the “License”).
- 1.2 Restrictions Including User-Generated Content.
  - (a) With respect to the Software and Interaxon Services, you will not (and will not allow any third party to): (a) exceed the scope and purpose of the License grant above; (b) remove or alter any copyright notice or any other notices, (c) modify or create derivative works; (d) reverse engineer or attempt to discover any source code or underlying ideas or algorithms; (d) provide, lease, lend, sublicense, use for timesharing or otherwise use or allow the use of it for the benefit of any third party (including minors, if applicable) unless you take full responsibility for ensuring that its use by anyone else will comply with the terms of this EULA; or (e) use, or allow the use, transfer, transmission, export, or re-export of it or portion thereof in violation of any export control laws or regulations, or in violation of any laws or regulations.
  - (b) For the purposes of this EULA, “User Generated Content” means any text, feedback, ideas, suggestions, documents, proposals, photographs or other data and information you or anyone acting on your behalf submits to Interaxon including, without limitation, through online and mobile services made available by or on behalf of Interaxon from time to time including, but not limited to, certain websites, widgets, computer programs, platforms, and mobile applications (collectively, the “Interaxon Services”). You represent that your User Generated Content: (a) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; (b) will not violate any law, statute, ordinance or regulation; (c) will not be obscene or contain child pornography; and (d) will not be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate.
  - (c) You agree to indemnify, hold harmless and defend Interaxon and its licensors from and against any claims or suits, including attorneys’ fees and expenses, which arise or result from any breach of this EULA by you or by another who has access to or use of the Software, Interaxon Services or User Generated Content through you.
- 1.3 License Grant – Personally Identifiable User Generated Data. For the purposes of this EULA, “Personally Identifiable User Generated Data” means User Generated Content that identifies you and is considered personal information in accordance with applicable privacy and data protection laws. For clarity, Personally Identifiable User Generated Data does not include de-identified and/or aggregated information. You own your Personally Identifiable User Generated Data; Interaxon can’t use it without your consent. You grant to Interaxon a revocable, non-exclusive, worldwide, royalty-free license, to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use Personally Identifiable User Generated Data in any manner and at any time only so far as required to deliver Software, Interaxon products and Interaxon Services. You waive any rights of publicity, moral or other similar such right with respect to Personally Identifiable User Generated Data while used in accordance with the preceding sentence.
- 1.4 License Grant – Non-Personally Identifiable User Generated Data. For the purposes of this EULA, “Non-Personally Identifiable User Generated Data” means all User Generated Content except for Personally Identifiable User Generated Data. You grant to Interaxon a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license, with the right to sublicense, to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use and commercially exploit Non-Personally Identifiable User Generated Data in any manner and at any time. You waive any rights of publicity, moral or other similar such right with respect to the Non-Personally Identifiable User Generated Data that might require your permission for Interaxon to use such Non-Personally Identifiable User Generated Data.
- 1.5 Intellectual Property. The Software and Interaxon Services are protected by copyright laws, international copyright, patents, trademarks, trade secrets and other intellectual property rights. As between you and Interaxon, Interaxon retains all right, title, interest, ownership and intellectual property rights in and to the Software and Interaxon Services. The License confers no title or ownership in the Software or Interaxon Services and is not a sale of any rights in the Software or Interaxon Services. The License does not grant you any right to any enhancement or update to the Software and Interaxon Services. Interaxon reserves any and all rights not expressly granted to you. The Software and/or Interaxon Services may incorporate third party intellectual property or open source code.
- 1.6 Permitted Age. You represent and warrant that: a) you are of legal age to form a binding contract with Interaxon, and b) are not barred from accessing the Software or Interaxon Services under the laws of the United States, Canada, or other applicable jurisdiction, including the country in which you reside or from where you download, install, copy, access or use the Software or Interaxon Services. By accepting this EULA you represent that you understand and agree to the foregoing.
- 1.7 For Information Purposes Only. Content generated or found through Interaxon Services, Software or Interaxon products is for informational purposes only and is not intended to replace the relationship between you and your physician, healthcare provider or other professional you are working with (collectively, “Professional”). Interaxon’s Muse headband is not a medical device and Interaxon is not a licensed medical or healthcare provider and has no expertise in diagnosing, examining, or treating medical conditions of any kind. Further, you understand that any information generated from Interaxon Services, Software or Interaxon products is not medical information and you will ensure that medical information or other personal health information is not uploaded to Interaxon Services or Software or Interaxon products. You assume all liability for any medical or health information that is created or stored or uploaded on Interaxon Services, Software or Interaxon products, and you agree to fully indemnify and hold Interaxon harmless from any liability, expense, suit, action or claim (including regulatory proceedings) related to your breach of this EULA including without limitation, any liability, expense, suit, action or claim that arises through your use of Interaxon Services, Software or Interaxon products.
- 1.8 Physical Symptoms. In rare cases, people experience seizures or blackouts due to exposure to flashing lights and patterns created by the display of certain applications on mobile or other such similar devices used in conjunction with the Software, Interaxon Services or Interaxon Products. If you have done so, or have experienced any nausea, involuntary movements, tingling, numbness, or vision issues while using such devices in the past, you should consult with your doctor before using similar applications and should immediately cease all such use of such applications should the symptoms re-occur. In any event you should avoid prolonged use of such applications to minimize any possible discomfort or fatigue, including any muscle, joint or eye strain and should closely monitor your children’s use of technology to avoid possible problems.
- 1.9 Muse Connect Platform and/or Other Services. If you wish to share the information generated through the Software and/or Interaxon Services with a third party such as a Professional, you may do so by providing your consent to such third party and/or Interaxon. You may take back or revoke your consent (unless Interaxon has already acted based on it) by submitting a revocation request in writing to Interaxon through http://choosemuse.com/pages/contact, specifying that you revoke your consent to share information generated through the Software and/or Interaxon Services with the Professional. Your revocation will take effect, when Interaxon actually receives it. Interaxon cannot give it retroactive effect, so it will not affect any use or disclosure that occurred in Interaxon’s reliance on your consent prior to revocation.
TERMINATION. This EULA is effective until terminated. You may terminate this EULA at any time by uninstalling the Software and destroying all copies of the Software in your possession or control and ceasing to use all associated Interaxon Services. Interaxon may terminate this EULA immediately upon notice to you for any or no reason. The EULA will terminate immediately without notice from Interaxon if you fail to comply with any provision of this EULA (including breach for nonpayment, if applicable). Upon termination of this EULA, you agree to immediately uninstall the Software and destroy all copies of the Software and cease using all associated Interaxon Services.
LIMITED WARRANTIES BY INTERAXON.
- 3.1 Statutory Protections. THE APPLICABLE LAWS OF SOME COUNTRIES MAY NOT ALLOW THE EXCLUSION OF IMPLIED GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS AND/OR THE LIMITATION OR EXCLUSION OF LIABILITY EITHER IN CONTRACTS OR IF YOU ARE A CONSUMER, AND AS SUCH, SOME OR ALL OF THESE EXCLUSIONS MAY NOT APPLY TO YOU, IN WHICH CASE THIS AGREEMENT DOES NOT AFFECT YOUR STATUTORY RIGHTS.
- 3.2 Limited Warranty. INTERAXON DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE. THE SOFTWARE AND INTERAXON SERVICES ARE PROVIDED “AS IS” AND INTERAXON DISCLAIMS ALL GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND INTERAXON SERVICES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
- 3.3 Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN LIABILITY FOR DEATH OR BODILY INJURY RESULTING FROM INTERAXON’S GROSS NEGLIGENCE, INTERAXON, ITS SERVICE PROVIDERS AND ITS LICENSORS SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CLAIMS ARISING FROM OR RELATED TO: (a) THE INSTALLATION, DOWNLOAD, COPYING, ACCESS TO OR USE OF THE SOFTWARE OR THE ACCESS TO OR USE OF ANY INTERAXON SERVICE(S); OR (b) THE INABILITY TO USE OR THE NON-PERFORMANCE OF THE SOFTWARE OR ANY INTERAXON SERVICE(S), IN ALL CASES WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, EVEN IF INTERAXON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF INTERAXON, ITS LICENSORS AND SERVICE PROVIDERS EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE, OR THE APPLICABLE INTERAXON SERVICE, IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM UNDER THIS EULA.
- 3.4 Basis of the Bargain; Exclusions. The disclaimers of warranties and limitations of liability set forth above are fundamental elements of the basis of the agreement between you and Interaxon. You understand and agree that Interaxon would not be able to economically or reasonably provide the Software or the Interaxon Services to you without these limitations.
GENERAL.
- 4.1 Governing Law. Unless stated otherwise below, this EULA will be governed and construed in accordance with the laws of the Province of Ontario, Canada and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Ontario in Toronto, Ontario.
  - (a) If you are domiciled in a country located in Europe, Middle-East or Africa, this EULA will be governed and construed in accordance with the laws of England and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of London, England.
  - (b) If you are domiciled in a country located in Asia-Pacific, this EULA will be governed and construed in accordance with the laws of Singapore and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Singapore.
  - (c) If you are domiciled in the United States of America, this EULA will be governed and construed in accordance with the laws of New York, USA and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of New York city, New York, USA.
  - The United Nations Convention on Contracts of the International Sale of Goods is expressly excluded.
- 4.2 Privacy Policy. You acknowledge and agree that you have read the Interaxon Privacy Policy located at http://www.choosemuse.com/legal (or otherwise made available to you through Interaxon Services) and consent to the handling and processing of your data as described in the Interaxon Privacy Policy.
- 4.3 Language. If this EULA is translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail (http://www.choosemuse.com/legal/eula).
- 4.4 Changes to EULA. Interaxon may change the terms and conditions of this EULA at any time and recommends that you review them on a regular basis. You can review the most current version of this EULA at: http://www.choosemuse.com/legal or through the Interaxon Services. If Interaxon makes a change to the terms, it will post the revised version at the link above. You agree that your continued use of the Software after this EULA has been changed means that you have agreed to the changed terms.
- 4.5 Accounts and User Conduct. If Interaxon determines that any user is not using the Software or Interaxon Services responsibly, Interaxon has the right (but not the obligation) to remove, edit block or delete such user’s transmissions, User Generated Content, or use of the Software and/or Interaxon Services. If Interaxon, in its sole discretion, believes that the user has engaged in or facilitated practices that: (i) are in breach of this EULA, (ii) are offensive, illegal or violate the rights of others or Interaxon, (iii) violate any terms of use or guidelines established by Interaxon, or (iv) could result in liability for Interaxon, then Interaxon has the right (but not the obligation), without notice, to terminate the user’s access to and/or use of all or a portion of the Software and/or Interaxon Services, or delete information posted or stored to the Software and/or Interaxon Services. In addition, Interaxon reserves the right to limit the number of Muse accounts and the number of devices associated with an account. If Interaxon suspects that any registration data provided is inaccurate or incomplete, Interaxon may suspend or terminate the account without notice.
- 4.6 Entire Agreement; Amendment. This EULA is the entire agreement with respect to the Software and Interaxon Services and supersedes any other agreements or discussions, oral or written.
- 4.7 Interpretation. If any provision, clause or term of this EULA is determined by a court of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of that provision, clause or term will not affect the validity or enforceability of the remaining provisions, clauses and terms or the validity or enforceability of that provision, clause or term in any other jurisdiction. If any provision of this EULA is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provisions shall be severed from the EULA for the purposes of that jurisdiction and the other provisions shall remain in full force and effect. No waiver by either party of a breach or omission by the other party to this EULA will be binding on the waiving party unless it is expressly made in writing by the waiving party.
- 4.8 Survival. The provisions of this EULA that under a commercially reasonable interpretation reveal that the parties would have such provisions survive the termination of this EULA, including without limitation, Sections 1.2, 1.3, 1.4, 1.5, 1.7, 1.8, 1.9, 2, 3, and 4 will survive the termination of this EULA.
- 4.9 Other Terms. Notwithstanding anything to the contrary contained herein or any products or services from Interaxon, Interaxon and you acknowledge and agree to the following terms for the benefit of Apple Inc. and its subsidiaries and affiliates (collectively, “Apple”): (a) “Made for iPod,” “Made for iPhone,” and “Made for iPad” mean that an electronic accessory has been designed to connect specifically to iPod, iPhone, or iPad, respectively, and has been certified by the developer to meet Apple performance standards. Apple is not responsible for the operation of this device or its compliance with safety and regulatory standards. Please note that the use of this accessory with iPod, iPhone, or iPad may affect wireless performance; (b) the following is applicable for end users in all jurisdictions except Japan: AirPlay, iPad, iPhone, iPod, iPod classic, iPod nano, iPod touch, and Retina are trademarks of Apple Inc., registered in the U.S. and other countries. iPad Air, iPad mini, and Lightning are trademarks of Apple Inc.; (c) the following is applicable for end users in Japan: AirPlay, iPad, iPhone, iPod, iPod classic, iPod nano, iPod touch, and Retina are trademarks of Apple Inc., registered in the U.S. and other countries. iPad Air, iPad mini, and Lightning are trademarks of Apple Inc. The trademark “iPhone” is used with a license from Aiphone K.K registered in the U.S. and other countries. iPad Air, iPad mini, and Lightning are trademarks of Apple Inc. All other trademarks and trade names are the property of their respective owners and other company and product names mentioned herein may be trademarks of their respective companies.
- 4.10 If you any information about the Software or Interaxon Services, you may consult the user documentation that is provided with the Software or Interaxon Services. If you wish to request customer support from Interaxon for the Software or an Interaxon Service, or if you wish to provide Feedback about the Software or Interaxon Services to Interaxon, you may do so by contacting Interaxon at http://choosemuse.com/pages/contact or at Interaxon Inc. 555 Richmond Street West, Suite 900, Toronto, Ontario, Canada M5V 3B1.
- THIS EULA WAS LAST UPDATED ON APRIL 1, 2019

Terms of Sale – Hardware

TERMS OF SALE – GENERAL SALES AND PROFESSIONALS PROGRAM

This is a legal agreement between you (meaning you as an individual if acting on your own behalf, or the company that you represent if you are acting on behalf of such company) and Interaxon Inc. and/or its affiliates (“Interaxon”). By placing an order or acquiring devices or other hardware (“Product“) from Interaxon’s websites, or as part of Interaxon’s Professionals Program (collectively and individually, the “Site“), you agree to these terms and conditions set out below, Interaxon’s Privacy Policy and any Site terms of use (collectively “Terms“). The Terms may be updated by Interaxon from time to time, and it is your responsibility to review the Terms each time you make a purchase from the Site.

BY CLICKING ON THE BUTTON TO SUBMIT AN ORDER, OR BY OTHERWISE CONTINUING WITH A PURCHASE/LICENSE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT UNDERSTAND OR AGREE WITH THE TERMS, YOU MUST NOT CLICK THE BUTTON TO SUBMIT AN ORDER OR OTHERWISE PROCEED WITH THE PURCHASE/LICENSE.

MUSE SOFTWARE IS FOR INFORMATION PURPOSES ONLY / LANGUAGE
THE SOFTWARE AND SERVICES ARE FOR INFORMATION PURPOSES ONLY AND ARE NOT INTENDED TO BE USED FOR ANY OTHER PURPOSE, INCLUDING MEDICAL OR DIAGNOSTIC-RELATED PURPOSES.THE SOFTWARE, USER INFORMATION, USER INTERFACE, SUPPORT, COMMUNICATION AND AGREEMENT, ARE ONLY BE PROVIDED IN CERTAIN LANGUAGES. DO NOT USE THE MUSE OR OTHER INTERAXON PRODUCTS, UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND ONE OF THE AVAILABLE LANGUAGES. FURTHER, DO NOT INSTALL, DOWNLOAD OR USE THIS SOFTWARE UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND THIS AGREEMENT.TO ENSURE THAT YOU UNDERSTAND THE ABOVE TWO PARAGRAPHS, TRANSLATIONS OF THESE PARAGRAPHS ARE SET OUT AT THE END OF THIS DOCUMENT (UNDER THE HEADING ‘TRANSLATIONS’).
1. Application. These Terms will apply to all orders placed by you, or as otherwise referenced in a written agreement between you and Interaxon. You acknowledge that the information contained on the Site may contain technical inaccuracies or typographical errors. The Site, all content available on or through the Site, and all related communications are provided on an “AS IS” basis. Interaxon makes no representations or warranties as to the completeness, accuracy, adequacy or reliability of any information contained on or through the Site.
2. Requirements. To place an order, you must:
  1. provide up-to-date, complete and accurate registration information as requested by Interaxon on the Site, which may include, without limitation, your first and last name, institution name, mailing address, phone number and email address;
  2. provide up-to-date, complete and accurate payment information (for example, credit card information for a credit card that is valid and legally registered to you);
  3. be at all times in compliance with these Terms and applicable law including, without limitation, the requirement to be of the age of majority in your jurisdiction; and
  4. in relation to purchases under Interaxon’s Professionals Program, (A) be a member of Interaxon’s Professionals Program at the time you place an order and thereafter for at least as long as you possess or control inventory of Products; and (B) comply at all times with the requirements of such program as they may be amended from time to time.
3. Accuracy. You specifically agree that Interaxon may rely on the accuracy of the information you provide to Interaxon (including, without limitation, any information you have provided as part of your application for the Professional’s Program, if applicable), and that Interaxon will have no liability whatsoever, whether to you or to any third party, for any claims or damages resulting from inaccurate information provided to Interaxon.
4. General Sales are End User Sales Only. All Products available through the Site for general sale are intended for end user customers only. You may not purchase Products for resale, and Interaxon reserves the right to refuse or cancel your order or to deny you any return rights, if we suspect you are not complying with these terms and conditions.
5. Interaxon Professionals Program Sales. All Products purchased under Interaxon’s Professionals Program are intended only for your personal use or your direct sale to your end user customers as described in your application for the Professionals Program (“Authorized Purchaser”). You may not purchase Products for resale to anyone other than Authorized Purchasers. You may not sell any Products online or indirectly to anyone other than your Authorized Purchasers. All Product purchases are subject to Interaxon’s end user license agreement at http://www.choosemuse.com/legal.
6. We reserve the right to refuse or cancel your order, or to deny you any return rights, if we suspect you are not complying with these terms and conditions. You will ensure that you and any anyone representing you: (i) does not participate in any threatening, deceptive, tortious, offensive, misleading, obscene, illegal, or unethical practices that may be detrimental to Interaxon or to any Interaxon products and/or services; (ii) only make representations about Interaxon and Interaxon products and/or services that are fair and accurate; (iii) does not make any representations, warranties, or guarantees to end users concerning any Interaxon products and/or services without Interaxon’s prior express written authorization; (iv) comply at all times with all applicable federal, national, state, provincial and local laws and regulations including, without limitation, those relating to tax, foreign exchange, anti-corruption, transfer of money, marketing, consumer protection, data protection, anti-mafia, organized crime, anti-terrorism or maintenance of public order; (v) does not sell refurbished or used Interaxon products, or any parts or materials associated therewith, in whole or in part; (vi) does not engage in business practices, promotions or advertising which may be injurious to the reputation or business goodwill of Interaxon and/or its affiliates; (vii) upon receiving notice of removal of a product, forthwith stop marketing and distribution of Interaxon products specified in such notice; (viii) does not modify any Interaxon products or replace any software on any Interaxon product or modify any point of sale packaging; and (ix) does not use any Interaxon marks (including, without limitation, as part of any press releases, products, services, domain name, company name, marketing, and/or promotional materials) without Interaxon’s prior express written authorization and in compliance with the Interaxon Branding Guidelines (which you must obtain from Interaxon).ORDERING
DELIVERY AND SHIPPING
1. Acceptance Required. All orders are subject to acceptance by Interaxon, and any rejection of an order will be made in Interaxon’s sole discretion, regardless of whether the order was confirmed through the Site or otherwise. If you have been charged for an order that is subsequently rejected by Interaxon, Interaxon will refund the amount of that order.
2. Delivery Requirements. Interaxon will make commercially reasonable efforts to accommodate your delivery requirements; however, delivery is subject to availability of resources at the time of order placement. Interaxon will therefore not be liable in any way for any delay or damage arising from Interaxon’s failure to meet your delivery requirements or any specified delivery dates.
3. Shipping Terms. All shipments will be made FCA Interaxon’s facilities (Incoterms 2010). Risk of loss for Products will pass to you in accordance with the FCA (Incoterms 2010) shipping. You are responsible for insuring the shipment and for pursuing the carrier for any loss occurring in transit.
4. Importer of Record. As you are the importer of record in the destination country, you are responsible for: (a) paying for all import fees such as import duties and customs taxes, and (b) ensuring that Products can be lawfully imported, and comply with all laws and regulations of the destination country. With respect to each item for which import fees have been calculated, you authorize Interaxon to designate a carrier (“Designated Carrier“) to act as your agent with the relevant customs and tax authorities in the destination country, to clear your merchandise, and, if applicable, process and remit your actual import fees for such item. Your order may include an estimate (“Import Fees Estimate“) of some or all of the import fees that will be levied on the items in your order for shipment. By placing your order, you agree to allow Interaxon to collect the Import Fees Estimate for the applicable items in your order. This amount will be used, on your behalf, to reimburse the Designated Carriers for the import fees that they have paid on your behalf to the appropriate authorities of the destination country. The Import Fees Estimate may or may not include customs duties. If they do not include customs duties, you will be responsible for making arrangements with the customs authorities for payment of duties. The Import Fees Estimate may be more or less than the final actual amount of import fees due and payable. Interaxon has no control over the import fees and cannot always predict with 100% accuracy what the final actual amounts may be. For greater certainty, you should contact your local customs office for further information on the import taxes and customs duties that may be applicable to your purchase. You agree and acknowledge that: (a) the actual import fees may be more or less than the Import Fees Estimate; and (b) you will NOT receive any refund in the case that the actual import fees differ from the Import Fees Estimate.
5. Check Order. You are responsible for examining all shipments promptly upon receipt. If you discover any shortages or incorrect products in the shipment, you must notify Interaxon immediately. Please check the order carefully, as no claim for shortages or deficiencies will be accepted by Interaxon after five (5) days from delivery of the products.
PRICING AND PAYMENT
1. Currency. If the currency for your purchase is not expressly stated, then the prices are in US dollars.
2. Prices. Interaxon reserves the right to change its standard prices without notice. Prices are exclusive of, and you will pay: (a) all applicable federal, state, provincial and local taxes (including all applicable sales, use, consumption, goods and service, value added, and withholding taxes), unless you have provided Interaxon with an appropriate tax exemption certificate or number, and (b) all fees and charges related to customs, duties and brokerage. Interaxon may charge sales tax for sales of Products through the Site. Any sales tax charged will be indicated during the checkout process.
3. Rejected Payments. Where your payment is rejected for any reason, you will be responsible for any fees and charges associated with such rejection, as well as interest on the amount owing. Interest will be the lesser of 1.5% per month or the maximum rate permitted by law, commencing on the date that your payment was rejected. Interaxon may, in its sole discretion, delay shipment of, or cancel, your order where your payment is rejected.
TITLE, INTELLECTUAL PROPERTY, USE RESTRICTIONS AND LICENSE GRANTS
1. Title to Products. Title to any Products and any other products bought by you will pass to you upon your full payment for such Product in accordance with Section 4 (Pricing and Payment).
2. Title to Software. Notwithstanding the foregoing, title to software will not pass to you, and you are hereby put on notice that your use of any Interaxon software supplied to you is governed by and subject to the EULA as provided to you with the software or otherwise located at http://www.choosemuse.com/legal. The EULA may be included as a file with the software that you download for use with hardware acquired under this Agreement. Use of any third party software will be governed by and subject to your agreeing to the terms of all applicable third party agreements and licenses respecting such third party software.
3. Intellectual Property Rights. You do not acquire any intellectual property or other proprietary rights under these Terms including, without limitation, any right, title or interest in and to patents, copyrights, trademarks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to any Interaxon products, software and/or services, or any part thereof. Your only rights in relation to Interaxon products, software and/or services, or any part thereof, will be those rights expressly licensed or granted to you under these Terms or in another separate written agreement between you and Interaxon. Any rights not expressly granted under these Terms are reserved.
4. Restrictions/Representations. Except to the extent expressly agreed upon in writing by you and Interaxon, you will not (and will not allow any third party to): (a) use Product for any purpose other than as authorized under these Terms, or use any associated software for any purpose other than as authorized under the applicable end user license agreement for the particular software; (b) remove or alter any copyright notice or any other notices that appear on Product or the associated software, or modify or create derivative works thereof; (c) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of Product or any associated software; (d) provide, lease, lend, sublicense, use for timesharing or otherwise use or allow the use of Product or the associated software for the benefit of any third party (other than Authorized Purchasers in relation to purchases/licenses under Interaxon’s Professionals Program only); or (e) use any Product or any associated software in violation of any laws or regulations, or use, transfer, transmission, export, or re-export of Product or any associated software or portion thereof in violation of any export control laws or regulations.
5. User Generated Content. For the purposes of these Terms, “User Generated Content” means any text, feedback, ideas, suggestions, documents, proposals, photographs or other data and information you, Authorized Purchasers (in relation to purchases/licenses under Interaxon’s Professionals Program only), or anyone acting on your behalf submits through the online and mobile services made available by Interaxon from time-to-time including, but not limited to, certain websites including the any Site, widgets, computer programs and mobile applications hosted by or on behalf of Interaxon (collectively, the “Interaxon Services”). You represent that your User Generated Content will not: (a) infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; (b) violate any law, statute, ordinance or regulation; (c) be obscene or contain child pornography; and (d) be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate. You agree to indemnify, hold harmless and defend Interaxon and Interaxon’s affiliates, service providers and licensors from and against any claims or suits including, without limitation, attorney fees and expenses, which arise or result from any breach of this Section by you or by another who has access to or use of Product, Interaxon Services, or User-Generated Content through you or products purchased through you.
6. Third Party Equipment, Software and Services. You are responsible for the selection, implementation, and performance of any and all third party equipment, software and services used in connection with Products, and for compliance with any licenses, conditions, laws, rules and/or regulations respecting the use of Products and any equipment, services or software used in conjunction with Product.
7. Compatibility. Before ordering Products, you should check http://choosemuse.com/compatibility (or other Interaxon Services) to determine if the Product is designed to work with your smartphone or tablet or other third party equipment. Interaxon assumes no responsibility with regard to the performance or use of your smartphone/tablet/other third party equipment with the Products.
8. Permitted Age. Interaxon Services, software and products should only be used by individuals aged 16 years or older (“Permitted Age”). If the user is of the Permitted Age or older but under the age of majority in the jurisdiction in which the user is domiciled, the user should review these Terms and the applicable end user license agreements for any software with the user’s parent or guardian to make sure that the parent or guardian understands these Terms and the applicable end user license agreements.
9. Informational Purposes Only. Content generated or found through Interaxon Services or products is for informational purposes only and is not intended to replace the relationship between you and your physician or other health-care provider. Interaxon is not a licensed medical or health-care provider and has no expertise in diagnosing, examining, or treating medical conditions of any kind.
10. Reseller of Third Party Products. If Interaxon is reselling any Third Party Products to you pursuant to these Terms, Interaxon will pass through to you any transferable warranties and indemnities provided to Interaxon by the provider of the Third Party Products including, without limitation, any warranties for the products and indemnities for intellectual property infringement. To the extent permitted by law, in connection with Third Party Products, notwithstanding anything to the contrary, Interaxon provides no indemnities and makes no other warranty, express or implied including, without limitation, warranty of merchantability, fitness for purpose or non-infringement. For the purposes of these Terms, “Third Party Product(s)” means any software, application, technology, standard or specification, product or service developed by or on behalf of a third party including, without limitation, the Muse Hard Carrying Case and Smith eyewear. For Smith Eyewear please refer to www.smithoptics.com for warranty and support.
CHANGES
1. Design. Interaxon reserves the right to make changes in the design of Product and/or other Interaxon Services and/or any associated software without the obligation to make equivalent changes to products that have previously been supplied to you.
2. Orders. Except as expressly set forth in these Terms, you will not be entitled to change or cancel any order that has previously been accepted by Interaxon without the prior written agreement of Interaxon. You shall not be entitled to any refund, except to the extent expressly stated in this Agreement.
LIMITED WARRANTIES, EXCLUSIONS AND SUPPORT BY INTERAXON
1. Statutory Protections. THE APPLICABLE LAWS OF SOME COUNTRIES MAY NOT ALLOW THE EXCLUSION OF IMPLIED GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS AND/OR THE LIMITATION OR EXCLUSION OF LIABILITY EITHER IN CONTRACTS OR IF YOU ARE A CONSUMER, AND AS SUCH, SOME OR ALL OF THESE EXCLUSIONS MAY NOT APPLY TO YOU, IN WHICH CASE THESE TERMS DO NOT AFFECT YOUR STATUTORY RIGHTS.
2. Limited Warranty. Interaxon and/or its affiliates have provided you with a limited warranty (which can be found at http://www.choosemuse.com/legal) relating to defects in materials or workmanship for the Muse headband. This limited warranty sets out certain situations when Interaxon and/or its affiliates will, or will not, provide a remedy for the Muse headband. You may have legal (statutory) rights that are in addition to those set out in the limited warranty (such as consumer laws in the country in which you live) (“Consumer Rights”). None of your Consumer Rights are limited or excluded. You must follow Interaxon’s return process described in the limited warranty in order to make a claim under the limited warranty.
  EXCEPT TO THE EXTENT EXPRESSLY SET OUT IN THE LIMITED WARRANTY, MUSE HEADBANDs AND ANY OTHER PRODUCTS/SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS ARE PROVIDED “AS IS AND WITH ALL FAULTS” AND INTERAXON DISCLAIMS ALL GUARANTEES, ASSURANCES, CONDITIONS, WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO MUSE AND ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS INCLUDING, BUT NOT LIMITED TO: (A) THE WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT OF THIRD PARTY RIGHTS; (B) PROVISION, DELAY OF OR FAILURE TO PROVIDE SUPPORT OR SERVICES, INFORMATION, SOFTWARE AND RELATED CONTENT THROUGH THE MUSE HEADBANDS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS OR OTHERWISE ARISING OUT OF THE USE OF THE MUSE HEADBAND AND/OR ANY OTHER PRODUCTS OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS; (C) THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; AND/OR (D) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.
3. Liability Limitation. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OTHER THAN LIABILITY FOR DEATH OR BODILY INJURY RESULTING FROM INTERAXON’S GROSS NEGLIGENCE, INTERAXON AND INTERAXON’S AFFILIATES, SERVICE PROVIDERS AND LICENSORS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL LOSS OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE OF PRODUCTS OR SERVICES OR FUNCTIONALITY, BUSINESS INTERRUPTION, LOSS, INACCURACY, INTERRUPTION OR CORRUPTION OF INFORMATION (INCLUDING DATA OR OTHER PECUNIARY LOSS)) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CLAIMS INCLUDING, WITHOUT LIMITATION, ARISING FROM OR RELATED TO: (a) USE OF MUSE HEADBANDS AND/OR ANY OTHER PRODUCT AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS; OR (b) THE INABILITY TO USE OR THE NON-PERFORMANCE OF MUSE HEADBANDS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES SOLD/LICENSED PURSUANT TO THESE TERMS, IN ALL CASES WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, EVEN IF INTERAXON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF INTERAXON AND INTERAXON’S AFFILIATES, SERVICE PROVIDERS AND LICENSORS EXCEED THE NET PURCHASE PRICE PAID BY YOU TO INTERAXON FOR AFFECTED PRODUCTS AND SERVICES ACQUIRED BY YOU UNDER THESE TERMS IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
4. Basis of the Bargain; Exclusions. The disclaimers of warranties and limitations of liability set forth above are fundamental elements of the basis of the agreement between you and Interaxon. You understand and agree that Interaxon would not be able to economically or reasonably provide the products and services to you without these limitations.
5. Support. Interaxon will not be obligated to provide any support or maintenance services for Muse headbands and any other products and services unless otherwise expressly agreed upon in writing by you and Interaxon. However, this provision does not relieve Interaxon of its warranty obligations described in Section 7.b. (Limited Warranty).
CANCELLATION AND TERMINATION
1. Termination Rights. Interaxon may terminate these Terms upon notice to you, and may also stop any products in transit to you and suspend the delivery of products and/or services to you, without penalty, if you: (a) fail to make any payment due under these Terms; or (b) commit a breach of these Terms (other than payment) and fail to remedy such breach within thirty (30) days of receiving notice of such breach.
2. Effect of Termination. Upon termination of these Terms for your breach: (a) all of Interaxon’s performance obligations hereunder will immediately cease, (b) your license to use any software provided to you hereunder will immediately cease, and you will either return all such software to Interaxon or confirm, upon request from Interaxon, that such software has been destroyed and (c) any payments then due to Interaxon become immediately payable in full.
ACCOUNTS AND USER CONDUCT
1. If Interaxon determines that any user is not using Interaxon Services responsibly, Interaxon has the right (but not the obligation) to remove, edit block or delete such user’s transmissions, User Generated Content, or use of the Interaxon Services. If Interaxon, in its sole discretion, believes that the user has engaged in or facilitated practices that: (i) are in breach of these Terms, (ii) are offensive, illegal or violate the rights of others or Interaxon, (iii) violate any terms of use or guidelines established by Interaxon, or (iv) could result in liability for Interaxon, then Interaxon has the right (but not the obligation), without notice, to terminate the user’s access to and/or use of all or a portion of the Interaxon Services, or delete information posted or stored to the Interaxon Services. In addition, Interaxon reserves the right to limit the number of accounts that may be created from Products and the number of Products associated with an account. If Interaxon suspects that any registration data provided is inaccurate or incomplete, Interaxon may suspend or terminate the account without notice.
GENERAL
1. Third-party Service Provider. In certain regions or for certain products, a third-party service provider may fulfill orders made on Interaxon’s online store. In such regions, the terms and conditions contained in these Terms will still apply.
2. Product Information. Please refer to product safety and regulatory information and trademark attribution statements located at http://www.choosemuse.com/legal.
3. Privacy Policy. You acknowledge and agree that you have read Interaxon’s Privacy Policy located at http://www.choosemuse.com/legal (or otherwise made available through Interaxon Services) and consent to the handling and processing of your data as described in the Interaxon Privacy Policy.
4. Interpretation. If any provision, clause or term of these Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of that provision, clause or term will not affect the validity or enforceability of the remaining provisions, clauses and terms or the validity or enforceability of that provision, clause or term in any other jurisdiction. If any provision of these Terms is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provisions shall be severed from the Terms for the purposes of that jurisdiction and the other provisions shall remain in full force and effect. No waiver by either party of a breach or omission by the other party under these Terms will be binding on the waiving party unless it is expressly made in writing and signed by the waiving party.
5. Governing Law. Unless stated otherwise below, these Terms, and all Product requirements, will be governed by, and construed in accordance with, the laws of the Province of Ontario, Canada and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Ontario in Toronto, Ontario.
  1. If you are domiciled in a country located in Europe, Middle-East or Africa, these Terms will be governed and construed in accordance with the laws of England and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of London, England.
  2. If you are domiciled in a country located in Asia-Pacific, these Terms will be governed and construed in accordance with the laws of Singapore and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Singapore.
  3. If you are domiciled in the United States of America, these Terms will be governed and construed in accordance with the laws of New York, USA and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of New York city, New York, USA.The United Nations Convention on Contracts of the International Sale of Goods is expressly excluded.
6. Survival. The provisions of these Terms that under a commercially reasonable interpretation reveal that the parties likely would have such provisions survive termination or expiration of these Terms including, without limitation, Sections 5, 6, 7, 8, 9 and 10 will survive the termination or expiration of this Terms.
7. Contact. If you have any questions or inquiries regarding these Terms or any order or purchase, please contact Interaxon through http://choosemuse.com/pages/contact or 555 Richmond Street West, Suite 900, Toronto, Ontario, Canada M5V 3B1. Please note that e-mail communications will not necessarily be secure, so please do not include credit card information or other sensitive or personal information in your e-mail correspondence with Interaxon.
8. Language. If these terms are translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.
9. Electronic Communications. For contractual purposes, you consent to receive communications electronically from Interaxon and you agree that all agreements, notices, disclosures and other communications that Interaxon provides to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights related to electronic communications.
10. Entire Agreement. These Terms constitute the entire agreement between the parties and supersedes all previous agreements relating to the subject matter hereof. These Terms may not be altered, amended, or modified except by a written instrument signed by the duly authorized representatives of both parties.

Terms of Service

MUSE SUBSCRIPTION SERVICE TERMS

Last Updated – April 1, 2019

PLEASE CAREFULLY REVIEW these Muse Subscription Service Terms (the “Terms”). The Terms are a binding legal agreement between Interaxon Inc. and/or its Affiliates (“Interaxon”, “we” or “us”), an Ontario Canada corporation located at 555 Richmond St. W. Suite 900, Toronto, ON, M5V 3B1, and you or, if applicable, the company, institution or other legal entity you represent (collectively, “you”, “your”). You and Interaxon are each a “Party” and collectively the “Parties”. If you are a company, institution or other legal entity, you may permit Authorized Users to access and use the Muse Services in compliance with these Terms.

MUSE SERVICES ARE ONLY PROVIDED IN ENGLISH ONLY. DO NOT REGISTER FOR, ACCESS OR USE ANY MUSE SERVICE UNLESS YOU CAN FLUENTLY READ AND UNDERSTAND THIS LANGUAGE.

ACKNOWLEDGMENT OF TERMS OF SERVICE:

By accessing or using a Muse Service you agree to be bound by these Terms. By registering for, accessing or using any Muse Service, or otherwise accepting these Terms, or ‘clicking’ accept (if applicable), you acknowledge that you have read, understood and agree to be bound by these Terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MUST NOT REGISTER FOR, ACCESS OR USE ANY MUSE SERVICES, OR ALLOW ANYONE ELSE TO DO SO. If you register for or access or use a Muse Service on behalf of an organization (such as an organisation identified as part of the registration process or on an invoice or subscription order): (a) you are agreeing to the Terms for and on behalf of that organization and promising to us that you have the authority to bind that organization to the Terms; and (b) other than in this sentence, which applies to you individually, the references to “you”, “your” will mean that organization that you represent.

Notwithstanding anything to the contrary, we reserve the right to update and revise the Terms at any time. We will make sure that the “Last Updated” date at the top of this page is changed so you can tell when the Terms were last changed. If we choose to notify you about the modification of the Terms, we may do so via our preferred form of notice which may include by email, on our website, or within a third party application store or the Muse Service. Notwithstanding whether we provide any notice of modifications to the Terms, by continuing to access and/or use any Muse Service after the Terms are modified, you are agreeing to the modifications to the Terms. If you do not agree with a modification to the Terms, you must cease accessing and using the Muse Service.

In addition to these Terms, when using particular services or features of a Muse Service, you will be subject to any guidelines or policies applicable to such services or features that may be specified or notified to you from time to time including the Privacy Policy and Branding Guidelines. If we make available any software relating to your access to or use of the Muse Service, such software is subject to the applicable End User License Agreement for that software. All such agreements, guidelines and policies, as applicable, are hereby incorporated by reference into the Terms.

If you: (a) have any comments or questions regarding the Terms, (b) wish to report any violation of the Terms, (c) wish to terminate your Muse Service during the Trial Period (as defined below); or (d) encounter content or activity you find inappropriate or otherwise believe to be a violation of the Terms, please contact us at http://choosemuse.com/pages/contact.

Article 1 DEFINITIONS
The use of “for example”, “includes” and “including” are not limiting and “all” includes “any” and “any” includes “all”. Capitalized terms used but not defined elsewhere in the Terms will have the following definitions:
- 1.1 “Affiliate” means any party directly or indirectly controlling, controlled by or under common control with Interaxon.
- 1.2 “Amendment” means an express written amendment to these Terms signed by Interaxon’s authorized signatory in which additional and/or different terms and conditions may apply to you.
- 1.3 “Authorized User(s)” mean the following users that you authorize to access or use the Muse Service on your behalf: (a) your employees, agents, or independent contractors; or (b) others such as clients, students, or subscribers where the Muse Service is provided to your end user customers together with your other services and not on a standalone basis; or (c) other users expressly authorized to use and access the Muse Service by Interaxon in an Amendment.
- 1.4 “Branding Elements” means all trademarks, service marks, trade names, domain names, slogans, logos, screenshots (including screenshots of the Sensor Device), sounds, and other indicia of origin that appear on or in connection with any aspect of the Muse Services including: “INTERAXON”, “MUSE”, “BRAIN SENSING”, “THE BRAIN SENSING HEADBAND”, “MEDITATION MADE EASY”, “MUSE MEDITATION”, “TECHNOLOGY ASSISTED MEDITATION”, “TAKE A BREATH”, “PERSONAL MEDITATION ASSISTANT”, “CHOOSEMUSE”, “MPOWERED BY MUSE”, “MUSE DIRECT”, “MUSE CONNECT”, “MEDITATION STUDIO”, “UNTANGLED”, and all related branding elements, the status indicator of the Sensor Device (or similar status indicator), use of “CALM”, “NEUTRAL”, and “ACTIVE” in relation to states of mind/brain signal calm points and/or recoveries.
- 1.5 “Branding Guidelines” means our branding guidelines and conditions for using our trademarks, trade names, service marks, and logos. We may modify the Branding Guidelines at any time. The Branding Guidelines may be made available to you through the Muse Service or our websites, or otherwise can be requested at http://choosemuse.com/pages/contact.
- 1.6 “Intellectual Property Rights” includes all intellectual property and proprietary rights of any nature or kind, whether protected, created, or arising under any applicable law, and all worldwide common law, statutory, and other rights in, arising out of, or associated therewith including trademarks, copyrights, patents, domain names, and trade secrets.
- 1.7 “Interaxon Materials” means: (a) all materials that were created by or on behalf of Interaxon including the layout and flow of the Muse Service; and (b) any other materials created under the scope of the Terms. Interaxon Materials includes: (i) all originally created or licensed audio or visual assets, computer software, code, routines, tools, application engines, algorithms, inventions and other technology contained in or used by us in the development of any Muse Service; (ii) the technical documentation, if any, of or concerning any Muse Service; (iii) any analytics data (other than User Content) generated from the use of any Muse Service; and (iv) any training or other materials made available pursuant to the Terms.
- 1.8 “Payment Processor” means one or more payment processors used by us from time to time to facilitate payments for the amounts specified in each form of invoice or subscription order.
- 1.9 “Payment Processor Services Agreement” means the Payment Processor’s service agreement in effect from time to time.
- 1.10 “Muse Service(s)” means Interaxon’s services, including additional subscription services through the Muse Sensor Device application, Muse Direct, Muse Connect, Meditation Studio guided meditations, and Untangle podcasts. The Muse Services may be varied from time to time by Interaxon. Subject to the licenses granted to you pursuant to these Terms, the Muse Services include the documentation and materials and access to or use of Interaxon’s Websites and Branding Elements.
- 1.11 “Privacy Policy” means our privacy policy which applies to your use of our websites, hardware, software, and/or services and describes the kinds of personal information that is collected about you, how it is used, how it is protected, and under what circumstances it is shared with third parties. The Privacy Policy also describes the decisions you can make about your personal information. It can be viewed at http://www.choosemuse.com/legal. We may modify the Privacy Policy at any time.
- 1.12 “Sensor Device” means any device or system of devices designed and/or developed by or on behalf of Interaxon, in whole or in part, which includes sensors that monitor users’ electrical activity of the brain, muscle activity, heart rate, heart rate variability, motion, respiration rate, eye movement and other signals. Sensor Devices may include sensing devices such as headbands.
- 1.13 “Software” means our proprietary software including any updates and upgrades to such software.
- 1.14 “Third Party Application(s)” means any software, application, in-application purchases, technology, standard or specification, product, service or website developed by or on behalf of a third party for installation and/or use in conjunction with any Muse Services including products and services provided by members of Interaxon’s Alliance Program. For clarity, Interaxon’s products and services specifically exclude Third Party Applications and Third Party Applications will not be treated, construed or interpreted as being supplied, authorized, endorsed or otherwise provided by or on behalf of Interaxon.
- 1.15 “User Content” means anything generated by you, anyone authorized by you, your clients or on your behalf through or as a result of the use of any Muse Service including written text, software, music, graphics, photographs, images, sounds, videos, messages, data, data feeds, metadata and personally identifiable information.
- 1.16 “Websites” means any domain or website provided by Interaxon used for the Muse Services.
RIGHT TO USE MUSE SERVICES
- 2.1 Evaluation Purposes (If Applicable). If the applicable invoice, subscription or Interaxon product description specifies that you are entitled to a trial period, such trial period will be limited to seven (7) days unless the invoice, subscription, or Interaxon product description specifies another period during which you may evaluate the Muse Service (“Trial Period”) and, notwithstanding anything else, in connection with such evaluation: (a) no fees will be payable by you during the Trial Period for the Muse Service you are evaluating; (b) access to the Muse Service will be provided “AS IS” and without any warranty; (c) unless otherwise specified in the invoice, subscription or Interaxon product description, you may terminate and/or cancel the evaluation during the Trial Period; (d) we may in our sole discretion, reduce or increase the Trial Period; and (e) in accordance with these Terms, we grant to you a limited personal, non-transferable, non-sublicensable, revocable and non-exclusive license during the Trial Period to access and use the Muse Service only for your internal evaluation and non-commercial use.
- 2.2 License Grant. In compliance with these Terms, and subject to your payment of all applicable fees (including applicable fees for all of your Authorized Users), we grant you a limited personal, non-transferable, non-sublicensable and non-exclusive right during the Term for you and your Authorized Users to access and use the applicable Muse Service(s).
- 2.3 Scope of Use. You may access and use, or authorize your Authorized Users to access and use, the Muse Service only for your and your Authorized Users’ personal and internal business and research purposes. Except to the extent that you are authorized by Interaxon in an Amendment (in which case additional and/or different terms and conditions may apply to you), you are not permitted to provide or resell the Muse Service to anyone on a standalone basis. You agree to ensure that Authorized Users comply with these Terms and all applicable fees for the Muse Service are paid to Interaxon in relation to the use of the Muse Service by all Authorized Users. We may, by Amendment, change the scope of your use of the Muse Services. If you wish to develop any applications for use with Sensor Device(s), or any other devices that use our Intellectual Property Rights, you may not do so under these Terms, and you must contact us at http://choosemuse.com/pages/contact and enter into an appropriate agreement with us. You agree to use the Muse Service only for purposes as permitted by these Terms and in compliance with any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. We reserve the right to modify or impose any limitations on the use of the Muse Service at any time, with or without notice to you. Notwithstanding anything to the contrary, unless authorized by an Amendment, the Muse Service may not be accessed by a direct competitor of Interaxon.
- 2.4 End User License. Our Software is subject to the applicable End User Licence Agreement in effect from time-to-time as located at www.choosemuse.com/legal (or as may otherwise be made available to you through the Muse Service or the Software from time to time).
- 2.5 Informational Purposes Only. You acknowledge that you are aware that: (a) content generated or found through the Muse Service and the Sensor Devices is for informational purposes only and is not intended to replace the relationship between a user and the researcher or the user’s physician or other healthcare other professional; (b) the Sensor Device is not a medical device and the information generated by the Sensor Device is not medical information; (c) the Sensor Device and associated applications are not designed to treat or diagnose any disease or medical condition; and (d) we are not a licensed medical or healthcare care provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind. As at the Last Updated Date, our products and services are not Health Insurance Portability and Accountability Act (HIPAA) compliant.
OBLIGATIONS
- 3.1 Service Level Terms. Subject to the Terms, we will use commercially reasonable efforts to provide you access to the Muse Service. We do not make any commitment that any Muse Service will be available at all times and you agree that you are not eligible for any refunds, credits or other compensation for any down time.
- 3.2Updates. From time to time, we may (but are under no obligation to) provide upgrades, patches, enhancements or fixes for the Muse Services to our users generally without additional charge (“Updates”), and such Updates will become part of the Muse Service and subject to these Terms. We may cease supporting old versions or releases of Muse Services at any time in our sole discretion.
USE OF THE SERVICE
- 4.1 Account. You may be required to establish an account and have the ability to pay any fees through Payment Processors in order to use the Muse Service and/or take advantage of certain features. If so, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Muse Service; and (b) as permitted, maintain and promptly update such information. If you provide any information that is false, inaccurate or outdated, or we have reasonable grounds to suspect that such information is false, inaccurate, outdated, or non-compliant with these Terms or the Privacy Policy, we have the right to suspend or terminate and/or cancel your account and/or prohibit any and all current or future use of the Muse Service by you. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your account. We advise against sharing your password with anyone and if anyone else has access to your password, then you are responsible for any their actions. You need to prevent unauthorized access to your account by selecting and protecting your password and/or other sign-in mechanism appropriately and limiting access to your computer, browser, or mobile device by signing off after you have finished accessing your account. Your account is meant to be private and you will not share accounts for any reason. You agree to immediately notify us at http://choosemuse.com/pages/contact of any unauthorized use of your password or account or any other breach of security. You agree to be responsible for all charges resulting from the use of your account via the Muse Service and will indemnify us for any losses we suffer due to your use or misuse of the Muse Service including charges resulting from any unauthorized use of your account. Unless otherwise agreed in an Amendment, user subscriptions cannot be shared or used by more than one individual user. Notwithstanding anything to the contrary, you acknowledge and agree that we may access, use, preserve and/or disclose your account information if legally required to do so or if we have a good faith belief that such access, use, disclosure, or preservation is reasonably necessary to: (a) comply with legal process or request; (b) enforce the Terms including investigation of any potential violation thereof; (c) detect, prevent or otherwise address security, fraud or technical issues; or (d) protect our rights, property or safety of the rights, property or safety of our users or the public as considered necessary by us or permitted by law.
- 4.2 Unlawful and Restricted Uses. You agree to use the Muse Service only for lawful purposes and that you are responsible for your use of the Muse Service and your communications and User Content. You may not and will not permit or facilitate any other person to:
- except as expressly permitted under Section 2.1 (Evaluation Purposes (If Applicable)) or Section 2.2 (License Grant), reproduce, copy, duplicate, license, rent, lease, loan, pledge, trade, sublicense, sell, resell, transfer, assign, convey, distribute, export or otherwise commercially exploit or make available to any third party any Muse Service or otherwise grant or transfer rights to any Muse Service, or any rights granted herein, in any form or by any media (electronic, mechanical, photocopy, recording, or otherwise);
- directly or indirectly: (a) reverse engineer, decompile, disassemble, debug, hook, spoof, pirate or otherwise attempt to discover or reconstruct the source code, object code or underlying structure, ideas, know-how, techniques or algorithms relevant to any Muse Service or Sensor Devices; (b) modify, adapt, alter, edit, correct, publish, enhance, translate or create derivative works based on any Muse Service (except to the extent expressly authorized in an Amendment or expressly authorized within the Service); or (c) alter, remove, cover or otherwise obscure any copyright notices, trademark notices, other proprietary notices or labels, or any other intellectual property rights attaching to, displayed on or within any Muse Service, or any associated software, documentation or other materials or on or within the Sensor Device;
- access the Muse Service in order to: (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of any Muse Service, or (c) copy any ideas, features, functions or graphics of any Muse Service;
- interfere with or disrupt the integrity or performance of any Muse Service;
- attempt to gain unauthorized access to any Muse Service or its related systems or networks;
- use any Muse Service in any manner that interferes with its normal operation or with any other user’s use of the Muse Service or our other products and services;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
- send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
- send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material including material harmful to children or in violation of privacy rights;
- send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
- interfere with or disrupt the integrity or performance of any Muse Service or the content or the data contained therein;
- attempt to gain unauthorized access to any Muse Service or its related systems or networks;
- access, tamper with, or use non-public areas of the Websites, our computer systems, or the technical delivery systems of its providers;
- access or search or attempt to access or search the Websites by any means other than through our currently available, published interfaces that are provided by us, unless you have been specifically allowed to do so in an Amendment;
- forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use any Muse Service, to send altered, deceptive or false source-identifying information;
- interfere with, or disrupt, the access of any user, host or network including sending a virus, overloading, flooding, spamming, mail-bombing any Muse Service, or otherwise creating an undue burden on any Muse Service; or
- use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Websites.
- We reserve the right to interrupt, terminate and/or cancel, or restrict access to any Muse Service without notice to you and without any liability if you fail to comply with any obligation under the Terms or any other agreement with us or if we suspect illegal, fraudulent, or abusive activity. You agree to cooperate with us in any investigation and use reasonable measures prescribed by us from time to time to address any issues or concerns identified by us. If we, in our sole discretion, believe that you have engaged in or facilitated practices that: (A) are in breach of the Terms, (B) are offensive, illegal or violate our rights or the rights of others, (C) violate any terms of use or guidelines or policies, or (D) could result in liability for us, then we have the right (but not the obligation), without notice, to terminate and/or cancel your access to and/or use any Muse Service, or delete information posted or stored to through the Muse Service, all without any recourse against us.
- 4.3 Access. Creating or maintaining any link from another application to any page at the Websites without the prior authorization of Interaxon is prohibited. Running or displaying the Websites, or any information or material displayed via the Websites in frames or through similar means on another website or application without the prior authorization of Interaxon is prohibited. Any permitted links to the Websites must comply with all applicable laws, rule and regulations.
- 4.4 Local Law. Interaxon makes no representation that materials contained, described or offered via any Muse Service are accurate, appropriate or available for use in all jurisdictions, or that these Terms comply with the laws of any particular country. Users of the Muse Service use the Muse Service on their own initiative and are responsible for compliance with all applicable laws. Notwithstanding anything to the contrary, you agree that you and your users will not access the Muse Service from any territory where it is illegal, and that you and your users, and not Interaxon, are responsible for compliance with applicable law.
- 4.5 Third-Party Applications. During use of the Muse Service, you may download, install, register for, access, use and/or acquire Third Party Applications as a matter of convenience. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable the Third Party Application provider. You agree that you will comply with any license agreements and restrictions applicable to such Third Party Applications. Interaxon and its licensors will have no liability, obligation or responsibility in relation to such activity. Interaxon does not endorse or control any Third Party Applications. You will access and/or acquire such Third Party Applications at your own risk and in no event will Interaxon or its licensors be responsible for any content, products, or other materials on or available from third parties (even if they are acquired through Interaxon).
COMPENSATION
- 5.1 Compensation. You will pay amounts specified in each invoice or subscription. You must make payments in advance, unless the applicable invoice or subscription contains payment terms that are different. Unless otherwise specified in the invoice or subscription, unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination and/or cancellation of your access to or use of the Muse Service. You will be responsible for all taxes associated with the Muse Service other than taxes based on our net income. Your access to and/or use of the Muse Service may be terminated or cancelled without notice for any unpaid and due amount. We reserve the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Muse Service. Unless otherwise specified in the invoice or subscription, all amounts under the Terms are payable in U.S. dollars. Any amounts paid by you are non-refundable.
- 5.2 Compensation Collection. Payment processing services for the Muse Service are provided by a Payment Processor and you are subject to the applicable Payment Processor Services Agreement. By agreeing to the Terms or continuing to use the Muse Service, you agree to be bound by the Payment Processor Services Agreement, as it may be modified by the Payment Processor from time to time.
- 5.3 Changes to Fees. We will not increase the fee for the Initial Term (as hereinafter defined), however, subject to your agreement to pay additional amounts, incremental fees may be charged where new or additional functions are added or become available to you.
- 5.4 Reports, Records and Audit. You must ensure that you, and anyone representing you, comply with Interaxon’s ordering and reporting requirements in effect from time-to-time, which may include providing Interaxon with written reports on the use of the Muse Services by you and your Authorized Users in the format, for the period and within the timelines as specified by Interaxon. To permit Interaxon to confirm compliance with this Agreement and applicable laws, while this Agreement remains in effect and for a period of two (2) years thereafter, you must keep accurate records including records about: (a) the use of Muse Services by you and your Authorized Users; (b) any use of Interaxon’s trademarks and other intellectual property; and (c) compliance with the obligations of this Agreement. To assure such compliance, Interaxon and/or its auditors may inspect, both while this Agreement remains in effect and for a period of two (2) years thereafter, such records from time-to-time. Any such audits shall be conducted during regular business hours and shall not interfere unreasonably with your normal activities. If an audit reveals that you, or an Authorized User, has not complied with the obligations of this Agreement, you may be required to pay Interaxon’s reasonable costs of conducting the audit. This section 5.4 does not apply to you if you are using the Muse Service for your personal use only.
INTELLECTUAL PROPERTY RIGHTS
- 6.1 Ownership. As between you and us, we will at all times be and remain, the sole and exclusive owner of the Interaxon Materials and all Intellectual Property Rights pertaining thereto. Nothing in the Terms will be deemed to grant or assign to you any proprietary or ownership interest or Intellectual Property Rights in or to any Muse Service, Interaxon Materials or any derivatives of such, other than the license rights specifically set forth herein. Your sole rights thereto will be only those rights granted by Interaxon under these Terms.
- 6.2 Marks and other Intellectual Property. All Branding Elements are either our property or the property of our Affiliates or licensors. We retain the right to rescind and terminate and/or cancel the limited license granted hereunder at any point, for any reason. All rights not expressly granted herein by us to you are fully reserved by us, our Affiliates and licensors. Some product names, logos, brands, and other trademarks featured or referred to within a Muse Service may not be owned by Interaxon, and are the property of their respective trademark holders. These trademark holders are not affiliated with, nor do they sponsor or endorse, Interaxon, the Muse Service and/or Interaxon’s products and services. Further, you are granted no right or license in any of the aforesaid Branding Elements, and further agree that you will not remove, obscure, or alter any proprietary notices (including trademark and copyright notices) contained within the Muse Services. Each time you wish to use any of our Branding Elements, you must ensure that you comply with the then-current version of the Branding Guidelines. As between you and us, we will at all times be and remain, the sole and exclusive owner of the Branding Elements and all our Intellectual Property Rights. Nothing in the Terms will be deemed to grant or assign to you any proprietary or ownership interest or Intellectual Property Rights in or to Branding Elements or any derivatives of such. You will continually use your best efforts to protect Interaxon’s trademarks, trade names, patents, copyrights, and other proprietary rights, but will not initiate legal action against third parties for infringement thereof. You will promptly notify Interaxon of any infringement or improper or unauthorized use of which you have actual knowledge.
CONFIDENTIALITY
- 7.1 Confidentiality. In connection with the products and services provided to you under these Terms, you may, from time to time, be exposed to and may be furnished with certain information, material or data relating to Interaxon’s products and services that are either specifically identified as confidential prior to or at the time of disclosure or would reasonably be considered confidential in the industries in which Interaxon operates. During the term of the Terms and for a period of five (5) years thereafter, you will keep confidential and not reveal or disclose to any third party any such proprietary or confidential information, material or data of Interaxon. You will be directly liable for the acts or omissions of your employees, agents, contractors and other authorized parties with respect to such confidentiality obligations. You agree to protect the Confidential Information with the same standard of care and procedures which you use to protect your own trade secrets, proprietary information and other confidential information and, in any case, not less than a reasonable standard of care. The provisions of this paragraph will not apply to information that is or becomes publicly available through no fault of your own or your representatives, or information that is required to be disclosed pursuant to a court order or any applicable laws, rules or regulations. Interaxon’s Confidential Information includes: (a) any test results relating to the Muse Services; (b) Interaxon software’s source code; (c) technical specifications related to the Muse Services; (d) any non-publicly available pricing and Interaxon Materials; and (e) except for User Content, all technology, know-how, algorithms, testing procedures, software, structure, interfaces, specifications, reports, analysis and other technical information learned, accessed or derived by you pursuant to these Terms or pursuant to your use of or access to the Muse Service and/or Sensor Devices.
- 7.2 Publicity; Credit. Except where you are merely evaluating Interaxon’s software or products, Interaxon will have the ability to issue a press release in connection with the Terms and use your logo on the Interaxon website and other marketing materials.
- 7.3 Data Collection. In carrying out its obligations and obtaining the benefits under the Terms, each Party will comply with applicable laws relating to their scope of responsibility, including applicable privacy laws. Any information that: (a) identifies you, Authorized Users or Sensor Device users whose information is shared by you or with your permission through the Muse Service (“Sensor User(s)”; (b) is considered personal information in accordance with applicable privacy and data protection laws; and (c) Interaxon or its service providers collect, use, and/or disclose is governed by Interaxon’s Privacy Policy. Your use of any Muse Service indicates your acceptance of the terms of the Privacy Policy. Interaxon will not use information that identifies you, Authorized Users, or Sensor Device users that is accessed or collected by us through the provision of the Muse Services for any purposes other than those expressly permitted by the Terms and/or the Privacy Policy.
- 7.4 User Content. All User Content is the sole responsibility of the person who originated such content. You acknowledge that all User Content you transmit (including any User Content you export from the Muse Service) or access using the Muse Service is at your own risk and you will be solely responsible and liable for any damage or loss to you or any other party resulting therefrom. You remain solely responsible for all User Content that is transmitted (including any User Content you export from the Muse Service) in connection with the Muse Service, and you warrant that you possess all rights necessary to provide and share such User Content. Interaxon reserves the right to remove from any Muse Service any User Content that Interaxon, in its sole discretion, believes to be objectionable. You understand that, by providing User Content in connection with the Muse Service, you hereby grant Interaxon a non-exclusive, irrevocable, worldwide, royalty-free license to reproduce, distribute, transmit, publicly perform, publicly display, digitally perform, modify, create derivative works of, and otherwise use User Content in any media now existing or developed in the future only so far as required to deliver Interaxon services and products. You waive any rights of publicity, moral or other similar such right with respect to User Content while used in accordance with the preceding sentence. Further, you represent and warrant that: (a) you have all the rights necessary to grant Interaxon such license; and (b) you are responsible for User Content that may be lost or unrecoverable through your use of the Muse Service. We recommend that you create and maintain regular backups of all User Content and associated data. We reserve the right to place service limits (including as to volume of data and time) on the User Content and associated data stored or retained by or on behalf of Interaxon.
WARRANTIES; LIMITATION OF LIABILITY; INDEMNITY
- 8.1 Warranty and Disclaimer. YOUR USE OF THE MUSE SERVICE IS AT YOUR SOLE RISK. THE MUSE SERVICE AND THE ASSOCIATED SOFTWARE, MATERIALS AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE, OUR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND OTHER REPRESENTATIVES (COLLECTIVELY, “INTERAXON PARTIES”), EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. INTERAXON PARTIES MAKE NO WARRANTY THAT: (I) ANY MUSE SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE MUSE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) INFORMATION THAT MAY BE OBTAINED VIA THE MUSE SERVICE WILL BE ACCURATE OR RELIABLE OR APPROPRIATE OR APPLICABLE TO YOUR USE; (IV) THE QUALITY OF ANY AND ALL PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL INCLUDING ANY SOFTWARE, MERCHANDISE, GOODS AND SERVICES, OBTAINED OR PURCHASED BY YOU DIRECTLY OR INDIRECTLY THROUGH ANY MUSE SERVICE, WILL MEET YOUR EXPECTATIONS OR NEEDS; (V) ANY DATA STORED OR RETAINED BY INTERAXON WILL BE FREE FROM LOSS OR CORRUPTION OR AVAILABLE INDEFINITELY; OR (VI) ANY ERRORS WILL BE CORRECTED. INTERAXON DISCLAIMS ANY LIABILITY FOR ANY CONSEQUENCES DUE TO USE, MISUSE OR INTERPRETATION OF INFORMATION CONTAINED, OR NOT CONTAINED, IN ANY MUSE SERVICE. SENSOR DEVICES AND MUSE SERVICES MAY NOT FUNCTION AS INTENDED OR EXPECTED. IF YOU CHOOSE TO USE THE MUSE SERVICE AND SENSOR DEVICES, YOU ASSUME ALL RISK OF HARM OR LOSS ASSOCIATED WITH YOUR USE THEREOF.
- 8.2 Exclusion of Damages. INTERAXON PARTIES WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF, IN CONNECTION WITH OR RELATING TO ANY DATA OR THE USE OF OR INABILITY TO USE ANY MUSE SERVICE OR ANY CONTENT INCLUDING ANY LIABILITY: (I) AS A PUBLISHER OF INFORMATION; (II) FOR ANY INCORRECT OR INACCURATE INFORMATION OR ANY ‘BUG’ OF THE MUSE SERVICE OR THE WEBSITES; (III) FOR ANY UNAUTHORIZED ACCESS TO OR DISCLOSURE OF TRANSMISSIONS OR DATA, OR FOR ANY LOSS OF DATA OR THE PROVISION OF INCORRECT DATA; (IV) FOR ANY LOSS OF INCOME, BUSINESS, PROFIT, ANTICIPATED REVENUE OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS (EVEN IF INTERAXON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND REGARDLESS OF WHETHER SUCH LOSS IS DIRECT OR INDIRECT); OR (V) FOR ANY OTHER MATTER RELATING TO ANY MUSE SERVICE OR ANY THIRD PARTY (INCLUDING: (a) END USERS OF THE SENSOR DEVICE; AND (b) OUR LICENSORS, SERVICE PROVIDERS AND PAYMENT PROCESSORS). THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL DAMAGES OF ANY KIND, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF AN INDIVIDUAL ADVISES INTERAXON PARTIES OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THE INFORMATION AND SERVICES OFFERED ON AND THROUGH THE MUSE SERVICE WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. NOTHING HEREIN IS INTENDED TO CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY INTERAXON TO ANY THIRD PARTY (INCLUDING END USERS), DIRECTLY OR AS A THIRD PARTY BENEFICIARY, WITH RESPECT TO ANY OF THE SERVICES PROVIDED HEREUNDER.
- 8.3 Limitation of Liability. NOTWITHSTANDING THE FOREGOING, THE SOLE AND ENTIRE MAXIMUM LIABILITY OF INTERAXON PARTIES FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE OR CLAIM WHATSOEVER, SHALL BE LIMITED TO THE FEES PAID BY YOU DIRECTLY TO INTERAXON FOR LICENSES GRANTED BY INTERAXON HEREIN SOLELY AND DIRECTLY TO YOU PURSUANT TO THESE TERMS IN THE SIX MONTHS IMMEDIATELY PRIOR TO SUCH CAUSE OR CLAIM ARISING. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, TO THE EXTENT PROHIBITED BY APPLICABLE LAW, SOME OF THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU. INTERAXON PARTIES WILL NOT BE LIABLE FOR: (i) CLAIMS ASSOCIATED WITH MODIFICATIONS OR ADAPTATIONS PERFORMED BY ANYONE OTHER THAN INTERAXON; OR (ii) USE OF THE MUSE SERVICE WITH PRODUCTS OR SERVICES THAT ARE NOT PROPRIETARY TO INTERAXON (EVEN IF SUCH PRODUCTS OR SERVICES DISPLAY INTERAXON BRANDING ELEMENTS).
- 8.4 Indemnification. You (on behalf of the organisation you represent (if applicable) and users of the Muse Service and the Sensor Devices) agree to indemnify, defend and hold harmless Interaxon Parties against all judgments, awards, settlements, liability, penalties, fines, claims, demands, causes of action, losses, expenses, damages and costs (including any court costs and reasonable attorneys’ fees), resulting or arising from or relating to: (a) your access to or use of any Muse Service, (b) any activity related to your account by you or any other person permitted by you, (c) your breach of the Terms, (d) your infringement or violation of any rights of another, or (e) your negligence or willful misconduct. We reserve the right to assume, the exclusive defense and control of any such claim or action and all negotiations for settlement or compromise, and you agree to fully cooperate with us in the defense of any such claim, action, settlement or compromise negotiations, as requested by us.
- 8.5 Third Party Indemnification. You agree to indemnify, defend and hold harmless Interaxon Parties against all claims, demands, causes of action, losses, expenses, damages and costs (including any reasonable attorneys’ fees), resulting or arising from any such claims made against the Interaxon Parties by third parties.
TERMINATION AND/OR CANCELLATION
- 9.1 Term. Subject to earlier termination and/or cancellation in accordance with these Terms, these Terms will continue for the initial term as specified in the applicable form of invoice or subscription order, if any, and if no term is specified, the Terms will have an initial term of 12 months commencing on the date you are first provided access to the Muse Service pursuant to the Terms (“Initial Term”) and, unless otherwise specified in the applicable invoice or subscription, these Terms will be automatically renewed for additional periods of the same duration as the Initial Term, on the same terms and conditions as the Terms, except for any changes to fees and any modifications Interaxon makes to these Terms, unless either Party terminates and/or cancels the Terms prior to the end of the then-current term. The Initial Term and any subsequent renewals will collectively be referred to as the “Term”. For clarity, if you are participating in a trial immediately preceding your paid subscription, the first day of your Initial Term will start on the earlier of: a) first day following the end of the Trial Period; and b) the first day of your paid subscription.
- 9.2 Termination and/or Cancellation. These Terms will terminate in each of the following events:
  - (a) in accordance with the Payment Processor Terms;
  - (b) if the other party materially defaults in the performance or observance of any of its obligations under these Terms and does not remedy the default within 15 days after receiving notice;
  - (c) at the option of either party, if the other party becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, or if a receiver or trustee in bankruptcy is appointed for the other party, or if any proceeding in bankruptcy, receivership, or liquidation is instituted against the other party and is not dismissed within 30 days following commencement thereof; or
  - (d) at the option of either party, upon 30 days written notice, delivered to the other Party in accordance with Section 10.1 (Notices), provided that no amounts previously paid are refundable.
- 9.3 Effect of Expiration or Termination and/or Cancellation. Upon expiration or earlier termination and/or cancellation of the Terms, unless otherwise specified in the Terms, all rights granted to each Party herein shall forthwith revert to the granting Party, including the following consequences: (a) any compensation accrued but not paid will become immediately due and payable; and (b) your right to access and use the Muse Service will immediately terminate and/or cancel, you will immediately cease all use of the Muse Service, and you will destroy or return to us and make no further use of any confidential information or proprietary materials, or other items (and all copies thereof) belonging to us including any Software. All sections of the Terms which by their nature should survive termination and/or cancellation will survive termination and/or cancellation including accrued rights to payment, confidentiality obligations, governing law, disclaimers, and limitations of liability. Further, you will have no right to receive any refund of any prepaid amounts if you terminate and/or cancel during the applicable Term or if we terminate and/or cancel for cause. If the Sensor Device and the Muse Service were acquired as a “bundle”, upon termination or expiration of these Terms, notwithstanding Interaxon’s Limited Warranty for the Sensor Device, Interaxon may be relieved of its obligations to repair or replace the Sensor Device.
- 9.4 Payments Due before Termination and/or Cancellation. Payments due before the termination and/or cancellation of the Terms will still be payable by you at the time of such termination and/or cancellation. In addition, if you breach any of the Terms including failing to pay any sum that is due, in addition to any other remedies, you will reimburse us for all attorneys’ fees, court, collection, and other costs incurred by us in the enforcement of our rights under these Terms.
MISCELLANEOUS
- 10.1 Notices. All notices, requests, demands, approvals, requests for approvals or other communications under the Terms will be in writing. Notice will be sufficiently given for all purposes as follows: (i) upon delivery when personally delivered to the recipient, (ii) upon receipt when mailed by certified mail, return receipt requested if confirmed by return receipt, (iii) upon delivery when delivered by Federal Express or other recognized international overnight courier, (iv) upon receipt when sent by fax with confirmation, provided, however, that it will be deemed delivered the next business day if sent on a non-business day or after 5pm Toronto, Ontario time on a business day; and (vi) by email to you if sent by us to any email address provided to us. Notwithstanding anything to the contrary, notice will be sufficiently given to you, if provided by us to you via any email address provided to us or through the Muse Service, or by posting communications on http://www.choosemuse.com. Addresses for the purpose of giving notice may be set forth on the applicable form of invoice or subscription. Copies of any notice given by you to us must also be delivered to: Interaxon Inc. Attention Legal Department, Suite 900, 555 Richmond Street West, Toronto, Ontario, Canada M5V 3B1. A party’s address for notice may be changed by that party providing notice to the other party in accordance with this Section 10.1 (Notices).
- 10.2 Merger/Modification. Each Party acknowledges that it has read the Terms, it understands them, and agrees to be bound by them, and further agrees that this is the complete and exclusive statement of the Terms between the Parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral and written, between the Parties relating to the Terms. We are not, and will not be, bound by any provision of your purchase order, correspondence, or otherwise. Interaxon reserves the right to change, amend or modify the terms of these Terms, or the availability of any Muse Service from time to time. In such instance, you may be required to accept and agree to the new terms of these Terms. If you do not agree to any such new terms, you must cease or terminate your use of the Muse Service. Your continued use of the Muse Service after any modification to any of these Terms will be deemed to constitute your acceptance of any such new terms, conditions or modifications.
- 10.3 Limitations on Use. Interaxon may impose certain limitations on the use of the Muse Service including allocating certain levels of storage capacity to your account, restricting the number of accounts you may register, restricting the number of clients connected to your account, and/or restricting the amount of data available to you from each client or user. You agree to use the Muse Service only for purposes as permitted by the Terms and any applicable law, regulation, or generally accepted practice in the applicable jurisdiction. Interaxon reserves the right to modify or impose any limitations on the use of the Muse Service at any time, with or without notice to you.
- 10.4 Governing Law. These Terms shall be governed by and construed in accordance with the laws as specified below (“Governing Law”), excluding conflicts of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods. Each Party irrevocably consents and submits to the exclusive jurisdiction of the courts as specified below and waives any objection thereto on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law. The parties waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement. No action arising out of the Terms or your use of the Muse Service, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such cause arose).
  Where your primary address is located in:
- Canada, Caribbean, South America, or any other region or country not listed in subsections (ii) – (iii) inclusive below: the Governing Law of this Agreement is the laws of the Province of Ontario, Canada and the courts of the city of Toronto, Ontario, Canada shall have exclusive jurisdiction;
- United States of America: the Governing Law of this Agreement is the laws of the State of New York and the courts of the county of New York, New York, U.S.A. shall have exclusive jurisdiction; and
- Europe (including Greenland), the Russian Federation, Middle East or Africa: the Governing Law of this Agreement is English law and the courts of the city of London, England shall have exclusive jurisdiction.
  If there is any uncertainty or disagreement about the location of the End User’s primary address, then the Parties agree that sub-section (i) shall apply.
- 10.5 Severability. If any provision of the Terms is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted and all other terms and provisions of the Terms will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will negotiate in good faith to modify the Terms so as to effectuate the original intent of the Parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
- 10.6 Feedback. You may (but are not required to) provide feedback, comments and suggestions, including in respect of or concerning any improvements, errors, modifications, corrections, enhancements or derivatives (collectively, “Feedback”) to Interaxon concerning the Muse Service, Sensor Devices or any other intellectual property of Interaxon. You hereby grant to Interaxon a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose. Interaxon may develop technology, modifications, corrections, enhancements, derivatives or extensions (collectively, “Improvements”), and further may also develop branding elements based on such Feedback, and such Improvements and branding elements, and any intellectual property rights therein, as well as any related intellectual property registrations, will be owned exclusively by Interaxon. You agree to execute such further documents and instruments as may be required to confirm such ownership by Interaxon. You represent that the Feedback: (i) will not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights, or rights of privacy; (ii) will not violate any law, statute, ordinance or regulation; (iii) will not be obscene or contain child pornography; and (iv) will not be defamatory, unlawfully threatening or harassing, harmful to minors or others in any way, or otherwise offensive or inappropriate.
- 10.7 Force Majeure. The Muse Services may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. Interaxon is not responsible for any delays, deliver failures, or other damage resulting from such problems. In addition, neither you nor Interaxon will be liable for any failure or delay in performance of these Terms which are caused by something that is in the control of third parties or circumstances beyond the reasonable control of a party (collectively, “Force Majeure”). Force Majeure events shall include (but not be limited to) acts of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment, software or services (including the internet and telecommunication services); or material or something else required for the performance of obligations under this Agreement. Notwithstanding the forgoing, under no circumstances will a party’s obligation to pay any amount under these Terms be obviated by an event of Force Majeure.
- 10.8 Miscellaneous. We may assign the Terms in whole or in part. You may not assign the Terms in whole or in part. A waiver by either Party of any terms or conditions of the Terms in any instance will not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach thereof. All remedies, rights, undertakings, obligations and agreements contained in the Terms will be cumulative, and none of them will be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party. The Parties are not employees, agents, partners or joint venturers of each other. Neither Party will have the right to enter into any agreement on behalf of the other. The headings and titles of the Terms are not part of the Terms, but are for convenience only and are not intended to define, limit or construe the contents of the various sections. Notwithstanding any termination, cancellation or expiration of the Terms, the provisions hereof that are intended to continue and survive, will continue and survive, including Sections 5 (Compensation), 6 (Intellectual Property Rights), 7 (Confidentiality), 8 (Warranties; Limitation of Liability; Indemnity), 9 (Termination and/or Cancellation) and 10 (Miscellaneous). Except as otherwise specified in the Terms, all costs and expenses, including fees and disbursements of counsel, financial advisors and accountants, incurred in connection with the Terms and the transactions contemplated in the Terms will be paid by the Party incurring such costs and expenses. The entire understanding between the Parties hereto relating to the subject matter hereof is contained herein and the Parties make no warranties, representations or undertakings hereto except as expressly provided herein. It is the express wish of the parties that the Terms and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais. If these terms are translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.

Website Terms of Use

These terms and conditions of use (“Terms of Use”) comprise a legal agreement between Interaxon Inc. (“Company”) and you, the person accessing and using this website (“you”). These Terms of Use set forth the legally binding terms and conditions for the use of the Company’s website at www.choosemuse.com, interaxon.ca, choosemuse.ca, professionals.choosemuse.com (collectively and individually, “Website”) that is owned, operated and maintained, directly or indirectly, by Company, and all other sites owned and operated by Company that redirect to the Website, all subdomains provided through such other site or the Website, and all downloadable applications, features, functionality, content or information that is made available or provided on this Website.

BY USING THE WEBSITE YOU ARE DEEMED TO HAVE READ AND ARE INDICATING YOUR ACCEPTANCE OF, AND YOU AGREE TO BE BOUND BY, THE TERMS AND CONDITIONS OF THESE TERMS OF USE WHICH SHALL GOVERN YOUR ACCESS AND USE OF THE WEBSITE.

IF YOU DO NOT AGREE WITH ONE OR MORE OF THESE TERMS OF USE YOU MAY NOT ACCESS OR USE THE WEBSITE AND MUST EXIT THE WEBSITE. IF YOU DON’T WISH TO USE THE SITE AND WISH TO ACQUIRE SOMETHING THAT IS ONLY AVAILABLE THROUGH THE SITE, PLEASE CONTACT CUSTOMER CARE AT http://choosemuse.com/pages/contact TO MAKE ALTERNATIVE ARRANGEMENTS.

In consideration of the mutual promises and agreements contained in these Terms of Use and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), you and Company agree as follows:

Purpose and Website Services
The Website is made available to you for the purpose of providing you with information. From time to time, the Website may provide certain services, which may include, without limitation, the ability to acquire products (each a “Service”), which Services, and said acquired products, may be subject to the acceptance of the terms and conditions of use specific to that Service or product (“Service Terms”) and all other operating rules, policies, and procedures that may be published on the Website by Company from time to time and which will be made known to you prior to your use of any such Services. In the event of any inconsistency between these Terms of Use and any applicable Service Terms, these Terms of Use shall prevail, but only to the extent of such inconsistency. Company reserves the right to change the Website or change, eliminate or interrupt any of the Services.
Acceptance and Modification of Terms
The Website, Services and products acquired through the Website, are offered subject to acceptance of all of the terms and conditions contained in these Terms of Use. Company reserves the right to modify or replace the Terms of Use, including the sections 3 to 27, with or without notice to you, and recommends that you review the Terms of Use on a regular basis. You may access the current version of these Terms of Use at: http://www.choosemuse.com/legal . If Company makes a change to the Terms of Use, it will post the revised version at the link above. If you use the Website after the coming into effect of any such modification or replacement, you are deemed to have read and are indicating your acceptance of, and you agree to be bound by, the modified or replaced terms of use, which modified or replaced terms of use shall be the Terms of Use.
Void Where Prohibited
The Company operates its main Website from Ontario, Canada. Although the Website is accessible worldwide, not all features, products and services discussed, referenced, provided or offered through or on the Website are available to all persons in all geographic locations, or appropriate for use in all jurisdictions. Company reserves the right to limit in its sole discretion, the provision and quantity of any feature, product or service to any person or geographic area. Any offer for any feature, product or service made on this Website is void where prohibited by law. If you choose to access the Website from anywhere or any feature, product or service which is prohibited by law, you do so on your own initiative and you are solely responsible for complying with applicable laws.
Accounts and Passwords
To access and use certain features of the Website, you will need to create an account. As part of the process to create, register and maintain your account you must provide Company with certain current, complete, and accurate registration information, including your e-mail address and other data or information that has been requested by Company during the client account registration or renewal process (“Registration Data”). In these Terms of Use, “Personal Information” means any information about an identifiable individual, such as your name, e-mail address, mailing addresses, gender, date of birth, any data about you that you elect to provide electronically through the Website and any other information that identifies who you are. Registration Data and Personal Information will be used by Company solely in accordance with these Terms of Use and Company’s privacy policy (the “Company’s Privacy Policy”).

You agree that you will: (a) maintain and update such Registration Data as necessary in order to keep such information current, complete, and accurate; (b) maintain the confidentiality of any passwords or other account identifiers which you choose or that are assigned to you as a result of any registration or account creation with the Website: and (c) be responsible for all activities that occur under such password or account. Further, you agree to immediately notify Company of any unauthorized use of your password or account in the event that the confidentiality of your password or your account is compromised. Failure to comply with this paragraph may result in immediate termination of your account. Except to the extent this limitation is prohibited by applicable law (including Québec), Company shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this section.
License
Company hereby grants you a limited, non-exclusive, personal, non-transferable, non-sub-licensable and revocable right and license to: (a) access the Website for the purpose of receiving the Services in accordance with these Terms of Use and (b) access, view and print any information and documentation (such as data sheets, knowledge base articles, and similar materials) purposely made available by Company for downloading from the Website, provided that you: (1) not remove any proprietary notice language in all copies of such documents; (2) use such information only for your personal, non-commercial informational purpose and do not copy or post such information on any networked computer or broadcast it in any media; and (3) make no modifications to any such information. Except for the limited licenses and rights expressly granted to you in the Terms of Use, these Terms of Use do not grant you any other right or license, whether express or implied, by estoppel, or otherwise in or under any patent, trademark, copyright, or other intellectual property or proprietary right of Company or any third party. Company may terminate this license at any time for any reason whatsoever.
Suspension and Termination of Access
Company may suspend or terminate your access to the Website immediately without prior notice and without further obligation or liability to you if, in Company’s sole discretion, it determines you have breached these Terms of Use. Company may also suspend your access to the Website or terminate these Terms of Use at any time without written notice to you for any reason whatsoever. If the Terms of Use are terminated for any reason, you are still bound by the Terms of Use as set out herein. Except if you reside in Québec, Company has no liability of any kind or any nature whatsoever to you solely by reason of any change, modification, suspension or discontinuance of the Website or any or all of the Services in accordance with its terms. Except to the extent this limitation is prohibited by applicable law (including Québec), you agree that you shall not make any claim against Company, including with respect to any lost revenue, profits or opportunities as a result of such change, modification, suspension or discontinuance or on account of any expenditures made or actions taken in reliance on the expected continuation of the Website, the Services or these Terms of Use.
Content
All text, data, content, audio files, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork and computer code (collectively, “Content”), including but not limited to the design, layout, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on or available through the Website is owned, controlled or licensed by or to Company, and is protected by trade dress, copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws.

Except as expressly provided herein, no part of the Website and no Content may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, Web site or other medium for publication or distribution or for any commercial enterprise, without Company’s express prior written consent.

The Website may include Content that is owned by third parties (“Third Party Content”). You agree that all of the terms and conditions of these Terms of Use relating to the Website apply to your access to and use of any Third Party Content and you further agree to comply with any terms and conditions that are specific to the Third Party Content, including the terms and conditions specified under these Terms of Use. Company is not responsible, and assumes no liability, for any Third Part Content.

If you make any information, data or content available to Company on or through the Website, including by contacting us, or providing comments or ideas about the Services or the Website (“User Content”), you are deemed to grant Company a non-exclusive, transferable, sub-licensable, irrevocable, royalty-free, perpetual, worldwide license to store, use, copy, reproduce, modify, adapt, edit, translate, publish, perform and display any such User Content that you make available on, through, or in connection with the Website without any payment or restriction. You are solely responsible and liable for any User Content you make available on or through the Website or that is made available using your Website account. If you make User Content available, you represent that you have the right to do so.
Use Restrictions
You agree that when using the Website you will not: (a) post or transmit any files which contain viruses, worms, Trojan horses or other code that manifests contaminating or destructive properties; (b) post or transmit data or content which violates or infringes any third party rights, is false, misleading or inaccurate or is injurious to a third party or defames, libels or disparages any third party; (c) except as expressly permitted by these Terms of Use, provide, disclose, sublicense, distribute, transfer, assign or otherwise permit any third party to access, use, read or otherwise gain access to the Website; (d) use the Website to provide the benefit of the use of your account, if any, to or for any other person; (e) to the maximum extent permitted by applicable law, interfere with or circumvent any copyright or other technical protection mechanism or reverse engineer, decompile, disassemble, or otherwise in any manner deconstruct all or any part of the Website or any software or technology or content forming part thereof; (f) post or transmit data which constitutes unsolicited or unauthorized advertising or promotional material or any junk mail, spam, or chain letters; (g) post or transmit data or content which would be considered a criminal offence, give rise to civil liability, or would otherwise violate the law; (h) use the Website or Services to harvest addresses, send spam or otherwise breach these Terms of Use or the Privacy Policy; (i) use any spider, robot or other automated or electronic agent to monitor or copy web pages or any content from the Website or for any other purpose in connection with your access to and use of the Website; (j) take any action or use any program or device that may result in or is intended to interfere with the operation and functioning of the Website or to shut down, overload or overwhelm the Website; or (k) copy, republish or redistribute any part of the Website, including by caching, framing or similar means, without the prior written consent of Company.
Personal Information
You agree that your use of the Website and the Services is subject to the terms of our Privacy Policy, as set out from time to time at http://www.choosemuse.com/legal which is hereby incorporated by reference into, and forms an integral part of, the Terms of Use. By agreeing to the Terms of Use or by using the Website, you expressly consent to the collection, storage, use and disclosure of your information, including your Personal Information, according to our Privacy Policy. You represent and warrant to Company that you are at least 16 years of age and that you have the full, unrestricted right and authority and have been fully authorized to provide to Company any and all Registration Data (including any Personal Information) for the purposes of these Terms of Use and that Company is authorized and permitted to use such data as and to the extent provided in these Terms of Use.
Use of Cookies
You agree that Company has the right to monitor and review your use of the Website and Services from time to time, and to use “cookies”, “log files” and your “browsing data” in accordance with our Privacy Policy.

11. Subscription Fees and Charges

Your use of certain Services may be subject to subscription charges for those Services which are disclosed to you during your initial registration or renewal for such Services, and which are payable in accordance with the terms and conditions of special terms of use applicable to those Services.
Support
Company may in its discretion, without any obligation to do so and subject to the limitations of these Terms of Use (or as may be posted on the Website from time to time), provide you with troubleshooting support concerning your use of the Website and any Services.

Website and Services Provided “AS IS”

YOU UNDERSTAND AND AGREE THAT THE WEBSITE, THE SERVICES, ANY COMPANY CONTENT AND OTHER INFORMATION, DATA AND MATERIALS AVAILABLE ON THE WEBSITE OR PROVIDED AS PART OF THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED FOR HEREIN AND PERMITTED UNDER APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OR CONDITIONS OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING BY STATUTE OR OTHERWISE IN LAW, FROM A COURSE OF DEALING OR USAGE OF TRADE, AND INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS, ANY CONDITION OR WARRANTY OF MERCHANTABILITY, TITLE OR NON-INFRINGEMENT OF THIRD PARTIES RIGHTS AND ANY CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.

COMPANY DOES NOT OFFER ADVICE OR RECOMMENDATIONS CONCERNING INFORMATION OR DATA CONTAINED IN ANY SERVICES OR COMPANY CONTENT AND ANY ACTIONS TAKEN, OR FAILURES TO ACT, IN RELIANCE ON ANY COMPANY CONTENT (OR OTHERWISE ON THE SERVICES) BY YOU OR ANY OTHER PERSON IS YOUR SOLE RESPONSIBILITY AND LIABILITY. COMPANY SPECIFICALLY MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE WEBSITE OR ANY OF THE SERVICES (INCLUDING THE PROVISION OF ANY COMPANY CONTENT) WILL BE ACCURATE, RELIABLE, COMPATIBLE WITH YOUR COMPUTER, OR COMPLETE OR WILL BE PROVIDED ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS OR THAT ANY ERRORS CAN OR WILL BE CORRECTED OR THAT ANY SERVICES, COMPANY CONTENT, DATA OR THE RESULTS DERIVED THEREFROM WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR THAT THE WEBSITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL ELEMENTS.

YOU ACKNOWLEDGE THAT COMPANY DOES NOT CONTROL IN ANY RESPECT ANY INFORMATION, PRODUCTS, OR SERVICES OFFERED BY THIRD PARTIES ON OR THROUGH THE WEBSITE. EXCEPT AS OTHERWISE AGREED IN WRITING, COMPANY AND ITS AFFILIATES ASSUME NO RESPONSIBILITY FOR AND MAKE NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY, CURRENCY, COMPLETENESS, RELIABILITY OR USEFULNESS OF CONTENT OR PRODUCTS DISTRIBUTED OR MADE AVAILABLE BY THIRD PARTIES THROUGH THE WEBSITE.

IF YOU ARE DISSATISFIED WITH THE WEBSITE, THE SERVICES OR WITH ANY OF THE TERMS, CONDITIONS, GUIDELINES, PRACTICES OR POLICIES OF COMPANY IN OPERATING THE WEBSITE AND IN PROVIDING THE SERVICES YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO DISCONTINUE USING THE WEBSITE AND SERVICES.
Limitation of Liability
CONSUMER PROTECTION LAWS IN YOUR JURISDICTION (E.G. IN QUÉBEC) MAY PROHIBIT ANY STIPULATION THAT WOULD RELIEVE A MERCHANT FROM THE CONSEQUENCES OF HIS OR HER OWN ACTION. IF YOU ARE A CONSUMER IN SUCH A JURISDICTION, THIS SECTION 14 DOES NOT APPLY TO THE EXTENT THAT IT WOULD RELIEVE THE COMPANY OR ITS REPRESENTATIVE(S) OF LIABILITY FOR ANY ACTION OF THE COMPANY.

UNDER NO CIRCUMSTANCES SHALL COMPANY, BE LIABLE TO YOU, OR TO ANY OTHER PARTY, FOR ANY LOSSES, COSTS OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER THAT ARE SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF (OR THE INABILITY TO USE) THE WEBSITE, SERVICES, OR ANY COMPANY CONTENT OR THIRD PARTY CONTENT (REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, EQUITY, STRICT LIABILITY, BY STATUTE OR OTHERWISE AND REGARDLESS OF THE OCCURRENCE OF A FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE) THAT EXCEEDS, IN THE AGGREGATE, ANY AMOUNTS THAT YOU HAVE PAID COMPANY IN RESPECT OF THE SERVICES IN THE THIRTY (30) DAY PERIOD THAT IMMEDIATELY PRECEEDED THE DATE OF YOUR CLAIM.

IN NO EVENT WHATSOEVER SHALL ANY OF THE COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS AND THIRD-PARTY CONTRACTORS, SUPPLIERS AND LICENSORS (COLLECTIVELY THE “COMPANY PARTIES”) BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND OR NATURE WHATSOEVER THAT ARE SUFFERED OR INCURRED IN ANY CONNECTION WITH THE USE OF WEBSITE OR THE PROVISION OF THE SERVICES (INCLUDING IN ANY CONNECTION WITH THE TRANSMISSION OR DOWNLOADING OR STORAGE OF ANY DATA OR SUBMISSIONS TO OR FROM THE WEBSITE OR THE USE OF, OR RELIANCE ON, ANY COMPANY CONTENT OR OTHER INFORMATION OR DATA CONTAINED ON OR PROVIDED THROUGH THE WEBSITE OR SERVICES, OR LOSS OF OR DAMAGE TO FILES OR DATA OR ANY COSTS OF RECOVERING OR REPRODUCING ANY FILES OR DATA OR LOSS OF USE OR LACK OF AVAILABILITY OF SERVICES OR ANY DIRECT OR INDIRECT BUSINESS INTERRUPTION OR DIRECT OR INDIRECT LOSS OF REVENUE OR PROFIT OR ANY OTHER DIRECT OR INDIRECT ECONOMIC LOSS WHATSOEVER) HOWEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION AND WHETHER OR NOT FORESEEABLE, EVEN IF THE COMPANY PARTIES OR ANY OF THEM HAS BEEN INFORMED IN ADVANCE OR OUGHT REASONABLY TO HAVE KNOWN OF THE POTENTIAL FOR SUCH DAMAGES.

THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE AND USE OF THE WEBSITE, SERVICES AND ANY PROVIDED SUPPORT IS ASSUMED BY YOU.

Company shall not be liable for any failure to perform its obligations hereunder where the failure results from any cause beyond Company’s reasonable control, including, without limitation, mechanical, electronic, or communications failure or degradation.

The terms and conditions of these Terms of Use that limit liability reflect an informed voluntary allocation of risk; such allocation represents a material part of these Terms of Use. You agree that the limitations of liabilities set out in these Terms of Use are fair and reasonable in the circumstances.
Indemnity
Except to the extent if you reside in a jurisdiction which prohibits such a provision (e.g. Québec), you agree to defend, indemnify, and hold harmless the Company Parties from and against any claims, actions, demands, losses, liabilities, damages, costs and expenses suffered by such persons, including without limitation, reasonable legal and accounting fees, alleging or resulting, directly or indirectly, from your: (a) breach of these Terms of Use; (b) access to the Website or use of the Services; and (c) provision of User Content, Registration Data or other disclosure to Company of any other information or data and the use of same by Company or other Company Party as contemplated hereunder.
Trade-marks
All product, brand and company names, logos and registered or unregistered trade-marks, displayed on the Website or used in connection with the Services or products including, without limitation: “INTERAXON”, “MUSE”, “BRAIN SENSING”, “THE BRAIN SENSING HEADBAND”, “MEDITATION MADE EASY”, “MUSE MEDITATION”, “TECHNOLOGY ASSISTED MEDITATION”, “TAKE A BREATH”, “PERSONAL MEDITATION ASSISTANT”, “CHOOSEMUSE”, “MPOWERED BY MUSE”, “MUSE DIRECT” and all related branding elements, are the trade-marks of Company (or its suppliers, partner businesses or third party licensors, as applicable). Any use of any of the marks appearing on the Website or in connection with the Services or Company products without the express written consent of Company or the owner of the mark, as appropriate, is strictly prohibited.

Company provides links on the Website to other websites or resources, including those operated by parties other than Company. These links are provided for your convenience and Company is not responsible for the availability of such websites or resources and does not endorse or accept responsibility for the content of such external websites or resources and has no responsibility for or control over the terms of use or privacy policy (if any) of the operators of the external websites or resources. Your access and viewing of any third party websites or resources is conducted at your own risk. You are strongly advised to check the terms of use and the privacy policies of these external websites or resources before making use of them. You acknowledge that Company may remove any link to an external website or to resources at any time for any reason whatsoever.
Jurisdiction
CONSUMER PROTECTION LAWS IN QUÉBEC PROHIBIT ANY STIPULATION OF A LAW OTHER THAN THE LAWS OF QUÉBEC AND THE FEDERAL LAWS OF CANADA. IF YOU ARE A QUÉBEC CONSUMER, THE FOLLOWING PARAGRAPH DOES NOT APPLY.

The Website is administered by Company from a site that is located in Ontario, Canada. You acknowledge and agree that your use of the Website and all of the communications, transmissions and transactions associated with the Website and the provision of the Services shall be deemed to have occurred in the Province of Ontario, Canada. You agree that these Terms of Use shall be exclusively governed by, construed and interpreted in accordance with the laws of the Province of Ontario, Canada and those federal laws of Canada applicable therein and that the law of the Province of Ontario is the proper law. You irrevocably attorn to the exclusive jurisdiction of the Courts of the Province of Ontario in respect of all matters and disputes arising hereunder. The United Nations Convention on Contracts of the International Sale of Goods is expressly excluded.

You expressly agree that, in the event that there is a dispute under these Terms of Use and such dispute is to be resolved in a court of law, such dispute shall not be resolved by jury trial and you hereby waive any right to trial by jury.
Waiver
No delay or omission by Company to exercise any right or power it has under these Terms of Use or to object to the failure of any covenant of you to be performed in a timely and complete manner, shall impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. Any waivers by Company must be in writing and signed by an authorized representative of Company.
Entire Agreement
These Terms of Use, together with any applicable Service Terms, constitute the entire agreement between you and Company as it relates to the access to, and use of, the Website and Services and the subject matter of these Terms of Use and supersede all prior or contemporaneous agreements, negotiations, representations and proposals, written or oral between Company and you.
Interpretation
In these Terms of Use: (a) words denoting the singular include the plural and vice versa; (b) all usage of the word “including” means “including, without limitation,” throughout these Terms of Use; (c) all dollar amounts are expressed in Canadian currency unless expressly provided otherwise; (d) the division of these Terms of Use into separate sections, subsections and the insertion of headings is for convenience only and shall not affect the construction or interpretation of these Terms of Use; (e) words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings; and (f) you and Company agree that these Terms of Use shall not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of these Terms of Use. If these terms are translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.
Severability
If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, then the remaining provisions of these Terms of Use, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of these Terms of Use shall be valid and enforceable to the extent permitted by law.
Electronic Communications
For contractual purposes, you consent to receive communications electronically from us and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. This condition does not affect your statutory rights related to electronic communications.
Conformance with Law
In addition to complying with these Terms of Use, you agree to use the Website and Services for lawful purposes only and in a manner consistent with all applicable local, national or international laws and regulations, including all privacy and personal information laws. The Website and any Services shall not be used where, and to any extent, such use is prohibited by law. Your use of the Website from any location is subject to your compliance with all applicable laws and regulations that may be applicable to you. You agree, and confirm, that your use of the Website is in full compliance with the laws of the jurisdiction(s) to which you are subject, and that you are not prohibited from using the Website due to any restriction whatsoever and that you have obtained all necessary consents and approvals required or reasonably necessary.
Termination
Company may terminate these Terms of Use and your use and access of the Website and/or Services if you fail to comply with any provision of these Terms of Use. To the extent permitted by applicable law, the disclaimers, limitations on liability, termination, interpretative provisions, and your warranties and indemnities shall survive any termination of these Terms of Use. Company shall not be required to refund to you any amounts prepaid, if any, for use of the Website or any Services if Company has terminated your account or your use of, or access to, the Website and/or any of the Services for breach of these Terms of Use. Notwithstanding anything to the contrary, Company may also terminate your access to the Website without notice at any time for any reason whatsoever, and any fees or charges paid by you in advance, if any, shall be refunded on a pro rata basis.
Contact / Notices
If you have any questions about the Terms of Use please contact us through http://choosemuse.com/pages/contact . If you need to provide any legal notice you should deliver the notice in person, by courier or by the mail, to Interaxon Inc., Suite 900, 555 Richmond Street West, Toronto, Ontario, Canada M5V 3B1 with a copy to Interaxon Inc. Attention Legal Department, Suite 900, 555 Richmond Street West, Toronto, Ontario, Canada M5V 3B1. Company may provide notices or communications to you on the Website, with any products, or through the Services, and you agree that such notices shall constitute notice to you whether or not you actually access the notice.
Assignment
These Terms of Use are personal to you, and are not assignable, transferable, or sublicensable by you except with Company’s prior written consent. Company may assign, transfer, or delegate any of its rights and obligations hereunder without your consent.

© 2019 Interaxon Inc. All rights reserved.

Last updated: September 25, 2019

Limited Warranty For The Muse Headband

Dead on Arrival Products. If you are the original purchaser of a Muse headband from Interaxon or an authorised Interaxon retailer and the Muse headband is Dead on Arrival (namely, when you first attempted to use the product after opening the box, it demonstrated hardware failure, preventing even basic operability), the Muse headband may be returned by you to us within thirty (30) days of your original purchase.

If we verify that you were the original purchaser of the product and the product was Dead on Arrival, we will offer you the following options at our expense:

(a) ship you a replacement product; or
(b) service the product, in which case you will not have the right of replacement.

To be eligible to return any Dead on Arrival product to us, you must follow the warranty claim process set out below.

Manufacturer Defects. Your Muse headband is warranted by Interaxon Inc. and/or its affiliates (“Interaxon”) to be free of defects in materials or workmanship, under normal use, for a period of one (1) year from the date of your original purchase of the new Muse headband except to the extent a longer period is required by applicable law (the “Warranty Period”). This limited warranty excludes damage resulting from: (i) improper care or handling (including, without limitation, user abuse or proximity to moisture or heat), (ii) accidents, (iii) modification, (iv) unauthorized repairs, (v) use of the Muse headband with accessories, products, services or software applications not expressly approved or provided by Interaxon, (vi) use of the Muse headband in a manner contrary to, or not in accordance with, the documentation, guidelines or instructions provided by Interaxon or (vi) other causes which are not defects in materials or workmanship of the Muse headband.

This warranty does not cover: (a) used or refurbished products; (b) products provided as a “sample”, “AS IS” or “complimentary”; (c) any third party products Interaxon sells; or (d) any accessories for the Muse headband.

The warranty only extends to new Muse headbands purchased by you from Interaxon or an authorised Interaxon retailer.

If there is a covered defect with the Muse headband, Interaxon will, at its discretion, repair (with new or refurbished parts) or replace (with new or refurbished product) your Muse headband free of charge, or will issue you with a refund. The Warranty Period for the repaired or replaced Muse headband will expire upon the expiration of the original Warranty Period (except to the extent Interaxon is expressly required by law to provide you a longer Warranty Period for the repaired or replaced Muse headband).

This warranty is a hardware only warranty that is limited to the Muse headband and does not cover any software made available, shipped, pre-loaded, or distributed by Interaxon or any third party, even if the software is packaged or sold with the product, or available for the product at a later time. Software license agreements apply to your use of software associated with the Muse headband. The software license for Interaxon proprietary software to be used with the Muse headband is described in the applicable Interaxon end user license agreement.

To be eligible to return any defective Muse headband to us, you must follow the warranty claim process set out below.

Warranty Claim Process. To be eligible to return any Muse headband to us, you must have a Dead on Arrival product or a Muse headband with a manufacturer’s defect and you must:

(1) prior to shipping the Muse headband to us, contact us through http://choosemuse.com/pages/contact and obtain a Return Material Authorisation (RMA) number, shipping address and other instructions. The RMA number must be included with your Muse headband return
(2) provide us valid proof of your original purchase
(3) package the Muse headband in the original, unmarked packaging together with all accessories, manuals, and documentation (unless otherwise requested by Interaxon)
(4) include a description of the reason for the Muse headband return.

If we determine that there was no valid reason for returning the Muse headband to us (i.e. it was not Dead on Arrival or did not have a manufacturer’s defect), we may, at our discretion, refuse to accept the Muse headband or return the Muse headband to you and charge you a USD$200 handling fee.

Limitation of Liability. The Muse headband is provided “AS IS AND WITH ALL FAULTS”, and Interaxon hereby disclaims all other warranties, conditions and the provision of or failure to provide support or other services, information, software, and related content through the Muse headband or otherwise arising out of the use of the Muse headband . This limited warranty is in place of all other express and implied warranties, conditions, representations, or guarantees of any kind (including, without limitation, implied warranties of merchantability, satisfactory quality and/or fitness for a particular purpose) which are all hereby excluded and shall have no effect. In no event shall Interaxon or anyone acting on behalf of or with Interaxon (including, without limitation, in relation to the manufacture, supply, distribution, sale, repair or return of the product) be liable for any direct, indirect, incidental, special or consequential loss or damages whatsoever (including, without limitation, damages for loss of profits, loss of use of the products or functionality, business interruption, loss or corruption of information (including data), or other pecuniary loss) arising out of the use or inability to use the Muse headband even if Interaxon or anyone acting on behalf of Interaxon has been advised of the possibility of such damages. This limitation is intended to apply and does apply without regard to whether such damages are claimed, asserted or brought in an action or claim in tort, contract, on the warranty, or under any other legal theory. The liability of Interaxon (and any one acting on behalf of or with Interaxon) to you for loss or damage arising under this warranty shall not exceed in aggregate the net purchase price you paid for the product or the cost of replacing the Muse headband , whichever is greater. The foregoing shall not in any way restrict any liability in relation to death or bodily injury or statutory liability for intentional and gross negligent acts or omissions. No other person or company is authorized to change this warranty.

Some states and countries do not allow limitation on how long an implied warranty lasts, or exclusion of all or certain types of damages, so the above limitations may not apply to you. This warranty gives you specific legal rights, and you may also have other additional statutory rights, which vary from state to state or within a particular country. The foregoing is without prejudice to other legal rights that may arise under applicable mandatory legislation. This warranty extends only to new Muse headband purchased by you from Interaxon or an authorized Interaxon retailer.

Your Rights Under Australian Consumer Laws. If you are a consumer you may have statutory rights under the Australian Consumer Law that are in addition to those set out in this limited warranty (“Consumer Rights“). This limited warranty sets out certain situations when Interaxon will, or will not, provide a remedy for a Muse headband. This limited warranty does not limit or exclude any of your Consumer Rights relating to the Muse headband.

Under your Consumer Rights, you are entitled to: (a) a replacement or refund for Muse headband with a major failure, and compensation for any other reasonably foreseeable loss or damage; and (b) have the Muse headband repaired or replaced if the Muse headband fails to be of acceptable quality and the failure does not amount to a major failure; and (c) such remedies are in addition to your rights under this limited warranty.

If you are a consumer under the Australian Consumer Law, you may return a defective Muse headband to: (a) the authorized Interaxon retailer from whom you purchased the Muse headband; or (b) Interaxon directly by contacting Interaxon pursuant to the warranty claims process set out above, or by phoning +1 416 598 8989.

Governing Law. Unless stated otherwise below, this limited warranty will be governed by, and construed in accordance with, the laws of the Province of Ontario, Canada and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Ontario in Toronto, Ontario.

i. If you are domiciled in a country located in Europe, Middle-East or Africa, this limited warranty will be governed and construed in accordance with the laws of England and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of London, England.
ii. If you are domiciled in a country located in Asia-Pacific, this limited warranty will be governed and construed in accordance with the laws of Singapore and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of Singapore.
iii. If you are domiciled in the United States of America, this limited warranty will be governed and construed in accordance with the laws of New York, USA and in the event of a dispute, you agree to submit to the exclusive jurisdiction of the courts of New York city, New York, USA.

The United Nations Convention on Contracts of the International Sale of Goods is expressly excluded.

Privacy and Consent. Information received by Interaxon will be used, processed, transmitted, and disclosed in accordance with Interaxon Privacy Policy (available at http://www.choosemuse.com/legal ) in order to perform the warranty services described in this limited warranty. This may include obtaining your information and the product from service providers, retailers, resellers and distributors involved in the chain of custody of the product upon which warranty services are performed, and transferring your information and the product to Interaxon service providers. You agree that Interaxon and its affiliates, agents and providers may collect and use information gathered in any manner as part of services related to the product.

Language. If this Warranty is translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.

Miscellaneous. If there is any conflict between this limited warranty and any other warranty provided to you including, without limitation, in the packaging of the product, the provisions of this warranty shall be applied by Interaxon to the extent of such conflict. If any term, provision or sub-section of this warranty is held to be void, illegal or unenforceable, the validity or enforceability of the remainder of such term, provision or subsection and this warranty will not be affected.

Privacy Policy

INTERAXON’S PRIVACY POLICY

Effective Date of Privacy Policy: July 23, 2020

At Interaxon, our vision is to empower personal transformation to improve lives and change the world. We value our customers and respect your privacy and personal information. Personal information is information about you, that may include your name, email or other addresses, phone numbers, or other data that could reasonably be linked back to you.

Please read our Privacy Policy below to learn more about the decisions you can make about your personal information and how we collect, use and disclose information when you use our products, services and websites, including Muse devices and associated applications, the Muse Connect web application, the Muse Direct mobile, desktop and web application, the Meditation Studio mobile and web applications, and our websites located at www.choosemuse.com and www.meditationstudioapp.com (collectively, “Products”).

If this policy changes in the future, we will post an updated version on our website at www.choosemuse.com and/or www.meditationstudioapp.com, and/or in our web or mobile applications. You can tell if this policy has changed by checking the effective date that appears at the top of the policy. Depending on the circumstances, we may also notify you of an update via email or other contact information you have provided.

If you have any questions or concerns, we can be reached by our contact information below.

DEFINITIONS

Capitalized terms used but not defined elsewhere in the Policy will have the following definitions:

“Activity Data” means data such as progress, trends, achievements over time, and session start and end times collected by us based on your activity.
“ Location Data ” means your location features when using our android mobile applications to enable use of Bluetooth functionality.
“Muse Data” means Sensor Data, Processed Data and Activity Data.
“ Personal Device ” means computers, smartphones, connected TVs and other web-connected devices you use that integrate with our Products .
“ Preference Data ” means data you provide regarding your preferences, such as session reminders, and any other data you choose to input; for example, notes you record in the application after a Muse session.
“ Processed Data ” means data such as heart rate, heart rate variability (HRV), and breath rate which is generated by us by processing Sensor Data.
“ Purchase Information ” means your name, email address, shipping address, billing address, phone number, account information, other information you share during the purchasing process, details of the product or subscription purchased, the date and time of the order or subscription, the quantity and price of the order or subscription, whether payment was made, method of payment, purchase or subscription history, and whether you re-ordered or renewed a subscription.
“ Sensor Data ” means data such as brainwave patterns (through electroencephalogram or EEG), heartbeat patterns (photoplethysmogram (PPG)), movement data, UV data, battery status data, temperature data, and pressure data collected through the sensors on the Muse device.
“ Transmission Data ” means your log data such as the date and time of syncing of your Personal Device with our servers, duration of the time spent using our applications on your Personal Device, and the Internet Protocol ( IP ) address of your Personal Device.

INFORMATION WE COLLECT AND HOW WE USE IT

When You Use or Access our Products

If you are under 16 you will not be allowed to set up an account with us. When you set up an account with us, you will need to provide us with information such as your login credentials (e.g. your email address, name, and/or password) and payment information, when applicable. Instead of providing us with your login credentials, you may also be able to use a third-party service such as Google Sign-in to create an account with us. When doing so, you authorize us to access certain account information (consistent with your privacy settings on the third-party service), such as your name, email address and age. We use the foregoing information for the purpose of creating and accessing your account. Your payment information is used to process your payments and for the auto-renewal of your subscriptions, if applicable..

Muse Mobile Application

The Muse mobile application in conjunction with the Muse device is designed to assist users in creating healthy lifestyle habits (e.g., through establishing a meditation practice and/or improving their sleep hygiene habits)

Creating an account

To use our Muse mobile application, you will be asked to download our mobile application and create an account.

Additional information we will ask you for when you are creating your Muse mobile application account is your geographic region and/or country, whether you are right or left handed, your gender, and year of birth. Factors like age, gender and handedness can impact your brain and help us with our research and development of the application. We use this information to improve and customize your user experience.
When using the Muse mobile application

When you use the Muse application with the Muse device, we record, process and store your Activity Data, Sensor Data, Preference Data, Processed Data and Transmission Data. We use the data referenced in the preceding sentence to provide you with real-time feedback during a Muse session, reports after Muse sessions, customer support, brain/body scientific research, technical troubleshooting, performance management and product enhancement. When you use an Android Personal Device to access the Muse application, we also need to access your Location Data during that use in order to enable Bluetooth connectivity; however, we do not store this Location Data.

Muse In-Application Third-Party Research Program : While using the Muse mobile application, you may have the option of participating in our voluntary in-application research program involving third parties. When you choose to participate in our third-party research program, you are consenting to the sharing of your Muse Data on a de-identified basis with third parties involved in research related to improving the scientific understanding of the brain/body or to improving products and/or delivering better experiences and services. You can choose to withdraw your consent to us sharing your information in the context of these voluntary research programs at any time through the settings of the Muse mobile application you are using. Should you withdraw your consent, we will not share your Muse Data in any new third-party research studies.

Muse Account Web Application

The Muse Account Web Application is designed to help you manage your account information such as your email address, your password and your subscription.

When creating an account using the Muse Account Web Application

When creating an account using the Muse Account Web Application, you will be asked for your login credentials (e.g. your email address, name, and/or password) to create an account or use a pre-existing account.

We use your login credentials to create your account and allow you to access your account.
When using the Muse Account Web Application

When you use the Muse Account Web Application, we record, process and store your Preference Data and Transmission Data. We use the data referenced in the preceding sentence to provide customer support, technical troubleshooting, performance management and product enhancement. Doing so is intended to improve and customize your user experience.

Muse Guided Meditation Subscriptions

The Muse Guided Meditation Subscription mobile application is designed to assist users with their meditation practice. The Muse Guided Meditation Subscription may be used as a stand-alone product or with a Muse device.

When creating an account for the Muse Guided Meditation Subscription

If you don’t have a Muse Account, you will have to create one (see “Creating a Muse Account” for further details.
When using the Muse Guided Meditation Subscription

When you use the Muse Guided Meditations with the Muse device, we record, process and store your Activity Data, Sensor Data, Preference Data, Processed Data and Transmission Data. We use the data referenced in the preceding sentence to provide you with real-time feedback during a Muse session, reports after Muse session, customer support, brain/body scientific research, technical troubleshooting, performance management and product enhancement. When you use an Android Personal Device to access the Muse Guided Meditation Subscription, we also need to access your Location Data during that use in order to enable Bluetooth connectivity; however, we do not store this Location Data.

When you use the Muse Guided Meditations without a Muse device, we record, process and store your Activity Data, Preference Data and Transmission Data. We use the data referenced in the preceding sentence to provide customer support, technical troubleshooting, performance management and product enhancement. Doing so is intended to improve and customize your user experience.

Meditation Studio Applications

The Meditation Studio mobile and web applications are designed to assist users with their meditation practice.

When creating an account for the Meditation Studio Application

When using the Meditation Studio mobile application, you may be asked to create an account. Creating an account is not mandatory to use the Meditation Studio mobile application. You will need to provide us with information such as your login credentials (e.g. your email address, name, and/or password) if you decide to create an account. Creating an account for your mobile application will also allow you to use the Meditation Studio web application with the same login credentials.

When using the Meditation Studio web application, you will be asked for your login credentials to create an account or use a pre-existing account.

We use your login credentials to create your account and allow you to access your account.
When using the Meditation Studio applications

When you use the Meditation Studio mobile or web applications, we record, process and store your Activity Data, Preference Data and Transmission Data. We use the data referenced in the preceding sentence to provide customer support, technical troubleshooting, performance management and product enhancement. Doing so is intended to improve and customize your user experience.

Muse Connect Web Application

The Muse Connect web application is designed to allow a party (such as a coach, wellness professional or employer participating in a wellness program) (the “Observer”) to monitor, from the Muse Connect dashboard, the Muse sessions of one or more people using Muse devices in conjunction with the Muse Mobile application (the “Participant(s)”). Participants must provide consent for the Observer to be able to monitor their Muse sessions.

When creating an account for Muse Connect

When the Observer creates a Muse Connect account, we require the Observer to provide us with information such as a telephone number, business type, entity name, and professional designation. We ask for this information because it is necessary for us to validate the Observer’s credentials, provide access to certain discounted pricing, and make relevant content available to the Observer.
When using the Muse Connect Web Application

When an Observer adds a Participant to the Muse Connect dashboard, we ask the Participant to consent to us sharing the Participant’s Activity Data and Processed Data with the Observer. When a Participant provides us with consent to share their data with a particular Observer, we share the Participant’s Activity Data, Processed Data, Email, Name and Profile picture with only that Observer. We do not, however, control the Observer’s use of that data; we therefore recommend that, if you wish to be a Participant, you review the privacy policy of the Observer. In order to revoke your consent to share your data with the Observer, you have to email us at our contact information below and include the following information with your request: the email address of the Observer and the Participant. Once we confirm the information and disassociate the Participant’s email address from the Observer’s email address, we will not share any new data for the Participant with the Observer.

When the Observer uses the Muse Connect Web Application, we record, process and store the Observer’s Activity Data, Preference Data and Transmission Data. We use the data referenced in the preceding sentence to provide customer support, technical troubleshooting, performance management and product enhancement Doing so is intended to improve and customize your user experience.

Muse Direct Application

Muse Direct is a mobile, desktop and web application designed to provide the users of Muse devices with access to their Sensor Data and Processed Data.

When creating an account for Muse Direct account

When you create an account for Muse Direct, we require that you provide your profession and how you heard about us. We use this information to understand how you propose to use this information and to improve and customize your user experience and our products.
When using the Muse Direct Application

When you use the Muse Direct mobile, web or desktop applications, we record, process and store your Activity Data, Sensor Data, Processed Data and Transmission Data. We store your Sensor Data on our cloud for your ease of access only. When you use an Android Personal Device to access the Muse application, we also need to access your Location Data in order to enable Bluetooth connectivity; however, we do not store this Location Data.

Websites

We use www.choosemuse.com and www.meditationstudioapp.com to provide information and market and/or sell certain Products.

When using our Websites

We collect information about how you use our websites, such as the types of content you view or engage with; the features you use; the actions you take; the people or accounts you interact with; and the time, frequency and duration of your activities. For example, we log when you’re using and have last used our website, and what posts, videos and other content you view on our websites.

We collect information from and about the Personal Devices you use to access our websites, and we combine this information across your different Personal Devices. For example, we use the information collected about your use of our websites on one of your Personal Devices, such as your smartphone, to better personalize the content or features you see when you use our websites on another Personal Device, such as your laptop or tablet, or to measure whether you took an action in response to an advertisement we showed you on your smartphone on a different device. Our access to and use of information from Personal Devices and our use of cookies and tracking technologies is further described below under “COOKIES, TRACKING TECHNOLOGIES AND ADDITIONAL INFORMATION ABOUT OUR PRODUCTS”.

We use technologies to deliver products and services, to make it easier for you to use our websites, enable you to move around the website and use their features, such as accessing secure areas, and store information so that we respond faster. We may use these technologies to collect information about how you use the website, for example which pages you visit most often and if you receive error messages from certain pages.

We may use technologies to allow us to remember choices you make (such as your user name, language or the region you’re in) and tailor the website to provide enhanced features and content for you. We may use technologies to deliver advertising that is relevant to your interests. These technologies can remember that your Personal Device has visited a site or service, and may also be able to track your Personal Device’s browsing activity on other sites or services other than www.choosemuse.com or www.meditationstudioapp.com.

Information collected from Personal Devices may be shared with organizations outside of our company, such as advertisers and/or advertising platforms to deliver the advertising, and to help measure the effectiveness of an advertising campaign.

We may also use information collected through these technologies to understand, improve, and research products and services.

WHEN YOU MAKE PURCHASES FROM US

While payments made through or for our Products are processed through a third-party payment processor, we collect and use information about the purchase or transaction. This includes payment information, such as your credit or debit card number and other card information; other account and authentication information; and billing, shipping and contact details. We use this information to the extent necessary to provide you with the Products you request in accordance with our terms, including to administer, manage, and fulfill the purchases or subscriptions you make and for inventory management and our other legitimate business interests.

WHEN YOU CONTACT US

When you contact us with a comment, question, or complaints via telephone call, email, or other means, we collect information like the identity of the caller or sender of email or other communication, the date and time of the call or message, and the subject and resolution of the issue. Your customer service telephone calls, emails, and other communications with us may be recorded, logged, and/or monitored for quality assurance, and/or product and service enhancement purposes such as to assist in addressing your inquiries, troubleshooting, training, and analytics to identify trends and make improvements to our products. We will do so to the extent necessary to respond to and communicate with you about your comment, question, or complaint and in improving our products and services.

MARKETING AND OTHER COMMUNICATIONS

We may offer you the ability to sign-up to receive promotional, educational and motivational communications, including news, product updates, in-app announcements, push notifications, motivational tips, event updates, and offers and communications from us. If you sign-up, we collect certain personal information (such as first and last name, mobile number, and email address) which we use to send you such communications.

MARKETING COMMUNICATION CONSENT

By providing your email address or mobile number you agree that you expressly consent to receive educational, and promotional communications from us or on behalf of the email address and/or mobile phone number provided.

Notifications may be sent out with your consent via SMS, in-app announcement, push notification, or email to encourage, motivate, teach, or otherwise engage you with our Products.

PUSH NOTIFICATION OPT-OUT

Push notifications can be turned off in the settings section of our apps.

EMAIL COMMUNICATION OPT-OUT

You can unsubscribe from receiving promotional, educational and motivational emails or update your preferences of regarding the type of communication you no longer wish to receive from us at any time by simply clicking the appropriate “unsubscribe” link provided at the bottom of such emails or by contacting us via http://choosemuse.com/contactsupport or the mailing address provided below. Opting-out of these emails will not end transmission of important service-related emails that are necessary to your account or transactions with us.

TEXT/SMS MESSAGE COMMUNICATION OPT-OUT

You can opt-out from further text promotional, educational and motivational texts/SMS communications by texting STOP to the SMS number used by us to contact you. Shortcode Usage in text messaging may include: message (msg), Per (/), Text (txt), Per Month (mo, ea. mo. or /mth), and Message and Data Rates May Apply (Msg&Data Rates May Apply).

We may share your mobile phone number with service providers with whom we contract to assist us with the above activities, but we will not share your mobile phone number with third parties for their own marketing purposes without your consent. Text Messages/SMS are distributed via third party mobile network providers and, therefore, we cannot control certain factors relating to message delivery. Depending on your mobile carrier, it may not be possible to transmit the text message to you successfully; nor is content available on all carriers. We do not claim or guarantee availability or performance of this service, including liability for transmission delays or message failures.

REFERRAL

The referral features on the Products may permit you to send an email to other individuals that might be interested in the Products. This feature requires you to submit your name and email address, as well as the name and email address of the recipient. We do not use the names or email addresses submitted in these circumstances for any other purpose without the consent of you or the email recipient to do so. Please ensure that you only submit email addresses of individuals with whom you have a personal or family relationship and who would want to receive the message. Our referral features may also allow you to post or share an update with your network through social media platforms.

CONTESTS AND GIVEAWAYS

Interaxon may offer you opportunities to participate in contests, giveaways, and other promotions. We may collect your name, address, email address, and other information that you provide to us. This information is used to the extent necessary to administer your participation in the contest, giveaway, or other promotion. Any personal information you submit in connection with these activities will be treated in accordance with this Privacy Policy and any additional terms set out in the rules for such offers.

SURVEYS

Interaxon may also ask you to participate in surveys that help us understand our customers and the use of our Products. The information obtained through our surveys is used to help us enhance our product and service offerings. Any personal information you submit in connection with these activities will be treated in accordance with this Privacy Policy and any additional terms associated with such surveys.

SOCIAL TOOLS

Within our applications, we may provide you with social tools that allow you to share personal information with others. For example, in the Muse and Meditation Studio apps, you can share data from a Muse session on Facebook, Instagram, or Twitter. When you interact with others through these tools, you may be publicly displaying your personal information. Please ensure you take appropriate measures to protect your personal information.

INFORMATION THAT WE SHARE

We will not disclose, trade, rent, sell, or otherwise share personal information, without consent, except as otherwise set out herein, in any special consent you have provided, or as permitted or required by law.

OTHER WELLNESS APPLICATIONS

We may provide you with the option of integrating our Products with applications such Apple Health or Google Fit in order to help you track your progress. If you direct us to connect the Products to applications such as Apple Health or Google Fit, we will access and import certain data from such applications (in accordance with your privacy settings in such applications) such as meditation minutes and heart rate, and we will transfer certain data to such applications, including Muse Data, session reminders, and your meditation goals. Please only connect the Products to applications such as Apple Health or Google Fit if you are the only person who uses the Products with your Personal Device. You can turn off the connection to such applications at any time in the settings of our Products. We recommend that you review the privacy policy of the third-party provider of the application as this will, amongst other things, cover what happens to any information that is shared with the provider of the application after the connection is turned off.

VOLUNTARY PRODUCT RESEARCH AND TESTING

From time-to-time you may choose to participate in voluntary product research and testing and share with us certain personal information such as your name and email address. Unless you expressly agree to the contrary, we will not use your personally identifiable information shared in this context for any purpose other than to administer the research and/or study.

AFFILIATES AND SERVICE PROVIDERS

We will transfer (or otherwise make available) personal information to our affiliates for the above purposes and to third parties who provide services on our behalf. This includes service providers who: (a) store information on our behalf in the cloud; (b) host our websites; (c) operate certain of our Product features; (d) administer services such as order and payment processing, shipping, and customer service; (e) send emails or other communications; (f) manage and analyze data and/or our advertising effectiveness; and (g) provide us with financial, insurance, legal, accounting, or other professional services, as the case may be. Personal information may be maintained and processed by third party service providers in the US, Canada, or other jurisdictions. Our service providers are given the information they need to perform their designated functions and are not authorized to use or disclose personal information for their own marketing or other purposes. For a full list of our affiliates and service providers, go to this page: Affiliates .

LEGAL AND OTHER REQUIREMENTS

We and our Canadian, US, or other service providers may provide personal information in response to a search warrant or other legally valid inquiry or order (which may include lawful access by Canadian, US, or other foreign governmental authorities, courts, or law enforcement agencies), or to other organizations in the case of investigating a breach of an agreement or contravention of law, or detecting, suppressing, or preventing fraud, or as otherwise required or permitted by applicable Canadian, US, or other law. We may also disclose personal information where necessary for the establishment, exercise, or defense of legal claims and to investigate or prevent an actual or suspected loss or harm to persons or property.

BUSINESS TRANSACTIONS

We may transfer personal information as an asset in connection with a proposed or completed merger or sale (including transfers made as part of insolvency or bankruptcy proceeding) involving all or part of our group of companies or as part of a corporate reorganization, financing, or other change in corporate control.

COOKIES, TRACKING TECHNOLOGIES AND ADDITIONAL INFORMATION ABOUT OUR PRODUCTS

When you use our Products, we collect certain information by automated means, such as through server log files, cookies (text files sent to and stored on your Personal Device when you access our websites), web beacons (also known as clear GIFs and pixel tags, which may be used to transmit information back to our Products), Personal Device ID (if you use one of our mobile applications) and embedded scripts (programming code that is designed to collect information about your interactions with the Products, such as the links or features you click on or select, and which is active only when you are using the Products) (collectively, the foregoing are referred to as “Tracking Technologies”).

The information we collect in this manner may include details about the Personal Device used to access the Products (such as browser type, device type, operating system and version, and IP address), referring URLs and information on actions taken or interactions with our Products.

We use the following Tracking Technologies in connection with the Products:

Necessary Tracking Technologies: These are Tracking Technologies that are required for the operation of our Products, to enhance your user experience when you use our Products, and to embed third-party features. They include, for example, Tracking Technologies that enable you to log into your account or access the features or web pages you select, remember your preferences (for example, your choice of language), pre-fill form fields you have previously completed, and integrate useful services provided by third party providers into our Products, such as social media features.
Analytics Tracking Technologies: We use third party web and mobile analytics services such as Google Analytics and Firebase Analytics, to help us analyze how visitors use the Products. We may permit these third parties to operate directly on or through our Products, using their own Tracking Technologies, and to collect information about you on our behalf. These Tracking Technologies allow us to measure and analyse behaviours and usage patterns of our customers, such as which pages or features are visited or used most often, for how long, and whether an error message is received by a customer. These analytics services may also provide us with other data they collect outside of our applications in an aggregated, de-identified form. We use this information to help us with Product performance monitoring and enhancement, and technical troubleshooting.
Interest-Based Advertising Tracking Technologies: When you visit our websites or apps, we may allow some third parties to (such as advertising networks and data analytics companies) collect information about your online activities over time and across different websites and apps (such as websites and apps you visit and response to ads) in order to measure the effectiveness of our marketing campaigns and to deliver ads that are more relevant to you, both on and off our websites. In some instances, we may also combine information we receive about you from third parties with information we collect through our websites. To opt-out of interest-based advertising, please see “Opting-out of Interest-Based Advertising” below.

You may set your web browser or Personal Device settings to notify you when you receive a cookie or to not accept certain Tracking Technologies. In our apps, we provide the ability to opt-out of Tracking Technologies, typically found in the settings. However, if you decide not to accept Tracking Technologies in connection with our Products, you may not be able to take advantage of all the features of our Products.

To find out more about cookies, including how to see what cookies have been set, and how to adjust your browser settings to block cookies, visit www.aboutcookies.org or www.allaboutcookies.org. Your browser settings may also allow you to automatically transmit a “Do Not Track” signal to websites and online services you visit. However, there is no consensus among industry participants as to what “Do Not Track” means in this context. Like many websites and online services, we currently do not alter our practices when we receive a “Do Not Track” signal from a visitor’s browser.

You can obtain additional information on Google Analytics’ collection and processing of data, including how to opt out, by clicking on the links provided:

OPTING-OUT OF INTEREST-BASED ADVERTISING

For more information about interest-based advertising on your desktop or mobile browser and to understand your options, including how you can opt-out of receiving behavioural ads from third-party advertising companies participating in the DAAC, please visit the Digital Advertising Alliance of Canada website at http://youradchoices.ca/choices.

To learn more about interest-based advertising in mobile apps and to opt out of this type of advertising by third-party advertising companies that participate in the DAAC’s AppChoices tool, please download the version of AppChoices for your device at https://youradchoices.ca/appchoices/.

Please note that even if you opt-out of interest-based advertising by a third party, these tracking technologies may still collect data for other purposes including analytics and you will still see ads from us, but the ads will not be targeted based on behavioural information about you and may, therefore, be less relevant to you and your interests.

To successfully opt-out, you must have cookies enabled in your web browser. Please see your browser’s instructions for information on cookies and how to enable them. Your opt-out only applies to the web browser you use so you must opt-out of each web browser on each device that you use. Once you opt-out, if you delete your browser’s saved cookies, you may need to opt-out again.

USE OF DE-IDENTIFIED DATA

Some of the information that you share with us or that we collect about you may not by itself identify you to us or be personally identifiable and therefore may not be considered personal information. We may also remove personal identifiers from your information to render such personal information non-identifiable. This includes Muse Data and in-app surveys. We maintain and use it as de-identified data, and may combine such de-identified data with other information to generate aggregated data. We use such de-identified and/or aggregated information to help us improve our product and service offerings, and may also provide de-identified and/or aggregated data to researchers in connection with research programs.

THIRD-PARTY LINKS AND INTEGRATIONS

We may provide links on our Products to third party websites, products or services we think you will enjoy or may be relevant to you, including social networking websites, plug-ins, and applications. Also, links to our Products may be featured on third-party websites or services on which we advertise. When you engage with our content on or through third-party social networking services, you may allow us to have access to certain information associated with your social media account (e.g., name, username, email address, profile picture, gender) to deliver the content or as part of the operation of the service. These websites and services operate independently of us and may have established their own privacy and security policies. We do not have control over such websites and services, and therefore we have no responsibility or liability for the manner in which the organizations that operate such linked websites or services may collect, use or disclose, secure, and otherwise treat personal information. We recommend that you review their privacy policy prior to sharing information with them.

HOW DOES INTERAXON KEEP YOUR INFORMATION SAFE?

We take data privacy seriously and have implemented physical, technical, and administrative safeguards designed to appropriately protect the security and privacy of your personal information against loss, theft, and unauthorized access, copying, use, disclosure, or modification.

We limit access to your personal information to employees and authorized service providers with a need to know to fulfill their designated functions.

TRANSFER OF PERSONAL INFORMATION TO OTHER COUNTRIES

Your personal information may be collected, used, processed, transferred, and retained by us, our affiliates and our service providers in multiple countries (including Canada, the United States, and the European Economic Area (“EEA”)) which may be outside the region in which you are situated and may have different privacy or data protection legislation, and may therefore be subject to the laws of these countries. If you are located in the EEA, Canada has been recognized by the European Commission as providing an adequate level of protection for the personal information transferred from the EEA to recipients subject to the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA), such as Interaxon. In addition, we comply with applicable legal requirements providing adequate protection for the transfer of personal information to recipients in countries outside the EEA and Switzerland which have not been recognized by the European Commission as providing for such a level of protection. In all such cases, we will only transfer your personal information if we have put in place appropriate safeguards in respect of the transfer, including by selecting U.S. service providers that are certified to the EU-U.S. and/or Swiss-U.S. Privacy Shield frameworks or by executing data transfer agreements with our service providers based on the European Commission’s Standard Contractual Clauses in accordance with Articles 45 and 46 of the EU General Data Protection Regulation (GDPR) respectively. You may obtain a copy of the safeguards we use in respect of such transfers by contacting us by our contact information below.

HOW LONG DOES INTERAXON KEEP YOUR INFORMATION?

We have information retention processes designed to retain your personal information only for so long as we consider necessary for the purposes set out above, and for other legitimate business purposes including considering criteria such as applicable legal requirements and statutes of limitations, the duration of your use of the Products, and the information needed to support your warranty and support requests. Typically, we will retain your Muse account personal information for as long as you have an account on one or more of our Products. We will delete your personal information from our Products if your account becomes inactive, i.e., there has been no user log-in to the account for a period set by us from time-to time (such period of non-activity will not exceed 10 years) or if you withdraw your consent to the processing of your personal information (e.g., if you delete your account). In such case, backup copies of your personal information will be removed from our cloud, however it may persist in our database for a short period (up to 30 days) due to technical reasons. Interaxon may continue to use de-identified data and aggregate information obtained in connection with your use of the Products. Notwithstanding the forgoing, we may retain your purchase information, warranty, and customer support information to the extent necessary for our legitimate business interests and in accordance with our obligations under applicable law in order to serve you better; to delete this type of personal information, please contact us by our contact information below.

YOUR CHOICES AND PRIVACY RIGHTS

You may have certain rights with respect to our processing of your personal information. Subject to applicable law, you may have the right to: (1) request access to the information we hold about you; (2) request that we update, correct, or amend your information; (3) request that we erase your information; or (4) request the restriction of our use of your personal information. In addition, and subject to applicable law, you may receive, in a structured, commonly used and machine-readable format, the personal information that you have provided to us about you with your consent or based on a contract with us. In appropriate circumstances, you have the right to have this information transmitted to another company, where it is technically feasible.

You also may object at any time to the use of your personal information, on grounds relating to your particular situation, where we use that information based on our legitimate interests as described above. You also may withdraw any consent you previously provided to us, e.g., by deleting any user account you have in connection with our Products or by contacting us by our contact information below. If you do so, this will not affect the lawfulness of our use of your information based on your consent before its withdrawal. Please note that if you revoke your consent to use certain data, you may not be able to use our Products or certain features or functionality of our Products.

If you contact us to do any of the things listed above, we may require you to provide sufficient personal information to allow us to identify you and provide you with the requested information. If you are located in the EEA, please put the “GDPR” in the subject line of your communication with us to help us direct your inquiry. We will respond to your request within a reasonable time and at minimal or no cost to you in accordance with applicable laws.

If you are not satisfied by our response or if you consider that our processing of your personal information infringes applicable law, you may lodge a complaint with a competent supervisory or regulatory authority, which may be the authority in your jurisdiction of residence or work.

CALIFORNIA RESIDENTS – YOUR CALIFORNIA PRIVACY RIGHTS

California Civil Code Section § 1798.83 permits users who are California residents to request certain information, including the categories of personal information disclosed to third parties for their marketing purposes and the names and addresses of those third parties, regarding our disclosure of personal information to third parties for their direct marketing purposes, if any. If you are a California resident and you have questions about our practices with respect to sharing information with third parties and affiliates for their direct marketing purposes, please contact us by our contact information below. Please put the statement “Your California Privacy Rights” in your communication with us.

INTERAXON’S POLICIES FOR CHILDREN

Our Products are only directed to persons of the age of 16 or over. We do not knowingly collect any personal information from children under 16. If we become aware that we have unknowingly collected personal information from a child under the age of 16, we will make commercially reasonable efforts to delete such personal information from our records. If you are concerned and are aware of a user under the age of 16 using our Products, please contact us by our contact information below.

LANGUAGE

If this Privacy Policy is translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail (http://www.choosemuse.com/legal/privacy).

CONTACTING US

If you have any questions, comments, or concerns about this Privacy Policy or about how we or our service providers treat your personal information, or if you would like to exercise your choices and rights in relation to your personal information, please contact us using the following contact information:

Interaxon Inc. (“Interaxon”)

Attn: Data Privacy Officer

555 Richmond St. West Suite 900

Toronto, ON M5V 3B1 Canada

http://choosemuse.com/contactsupport

For users in the EU/EEA, our EU representative can also be contacted at:

Amesto Global (Ireland) Limited

The Gallery, 13 Bedford Row, Limerick

Co limerick

Email: PrivacyEU@choosemuse.com

Hardware Warnings

(a) Do not dispose of Muse2 into fire or hot oven, or mechanically crush or cut the Muse2 or the battery contained whithin as this may result in an explosion.
(b) Do not expose the Muse2 to an extremely high temperature environment as this may result in an explosion or the leaking of flammable liquid or gas.
(c) Do not expose the Muse2 to extremely low air pressure as that may result in an explosion or the leakage of flammable liquid or gas.

Thirty Day Return Policy

(a) Subject to you complying with Interaxon’s return procedures, if purchased directly from Interaxon , any new undamaged Muse device may be returned to Interaxon provided you have used it for no more than twenty (20) days from delivery and Interaxon receives it within thirty (30) days from delivery. To return the Muse device, you must contact Interaxon via choosemuse.com/pages/contact to obtain a Return Material Authorization (RMA) number, shipping address, and instructions. You must: (i) ensure that the Muse device is not damaged, (ii) comply with the requirements of this Policy, (iii) provide proof of purchase, (iv) package the Muse headband in the original, unmarked packaging including, accessories, manuals, and documentation, (v) include the RMA number on and in the packaging, and (iv) prepay all shipping charges. Shipping fees, handling fees, and customs duties are at your expense and will not be refunded to you. Interaxon reserves the right to refuse or return headbands not sent in compliance with this Policy and charge you processing, shipping and handling charges. For Smith Eyewear please refer to www.smithoptics.com for warranty and support.
(b) Except for the return rights set out set out in this Section a., all sales are final and you have no right to return products unless there is a defect in the Muse headband that is covered under Interaxon’s Limited Warranty and the Muse headband is returned to Interaxon in compliance with Interaxon RMA procedures.

FCC Regulator Statements

UNITED STATES: This device complies with Part 15 of the FCC Rules. Operation is subject to the following two conditions: (1) This device may not cause harmful interference, and (2) this device must accept any interference received, including interference that may cause undesired operation. NOTE: THE GRANTEE IS NOT RESPONSIBLE FOR ANY CHANGES OR MODIFICATIONS NOT EXPRESSLY APPROVED BY THE PARTY

These limits are designed to provide reasonable protection against harmful interference in a residential installation. This equipment generates, uses and can radiate radio frequency energy and, if not installed and used in accordance with the instructions, may cause harmful interference to radio communications. However, there is no guarantee that interference will not occur in a particular installation. If this equipment does cause harmful interference to radio or television reception, which can be determined by turning the equipment off and on, the user is encouraged to try to correct the interference by one or more of the following measures:

– Reorient or relocate the receiving antenna.
– Increase the separation between the equipment and receiver.
– Connect the equipment into an outlet on a circuit different from that to which the receiver is connected.
– Consult the dealer or an experienced radio/ TV technician for help.

This device contains licence-exempt transmitter(s)/receiver(s) that comply with Innovation, Science and Economic Development Canada’s licence-exempt RSS(s).

Operation is subject to the following two conditions:

– This device may not cause interference.
– This device must accept any interference, including interference that may cause undesired operation of the device.
– This device complies with the Canadian ICES-003 Class B specifications. CAN ICES-003(B) / NMB-003 (B).

Referral Programs

Gift 30, Get 30: Program Terms
Last updated: July 22, 2019

The Muse Gift 30 Get 30 program allows existing users of the Muse headband (“Member(s)”) to earn promotional Muse Credits to use on their future purchase of Muse products from www.choosemuse.com. When a Member shares in accordance with these Terms their unique discount code through the Muse application, their friend or family member who receives this code from the Member (the “Receiver”) may use the code to receive a credit towards their purchase of a Muse product from www.choosemuse.com. Once the Receiver makes their first purchase, the Member will receive an email containing a link to redeem their Muse Credit to spend on Muse products from www.choosemuse.com . The Muse credit to the Member and the Receiver (each a “Muse Credit”) will be for up to: USD$30 for products paid for in USD, CDN$30 for products paid for in Canadian Dollars, €30 for products paid for in Euros, £30 for products paid for in pound sterling, and AUD$30 for products paid for in Australian Dollars, via the applicable choosemuse website. The maximum number of Muse Credits each Member is allowed to claim as part of this Program is 10.

By participating in this Program, you are agreeing to comply will the following Terms and all applicable laws:

How to Earn Muse Credits

A Member can earn a Muse Credit if the Receiver clicks on their referral link to make their first purchase of Muse products from www.choosemuse.com.

The Member will receive a Muse Credit (for up to 10 new referrals) for each of their Receivers that click their referral link and purchase a Muse product from www.choosemuse.com . The Muse Credit will be in the currency in which the Member and Receiver, respectively, purchase their Muse products using their Muse Credit. All Muse Credits expire 90 days from the date they are issued.
Qualifying Referrals

To qualify for the Muse Credit, the appropriate links must be used and the Member and Receiver must both purchase their products through www.choosemuse.com. In addition, both the Member and Receiver must be individuals, not corporations.
Redeeming Muse Credits

Once the Muse Credit is earned, the Member will receive an email containing a link to redeem their Muse Credit to spend on Muse products from www.choosemuse.com. A Muse Credit can be used one-time only. The purchase price of the product (before taxes and other charges) must be at least USD$50, CDN$50, €50, £50 or AUD$50. Multiple Muse Credits may be used per purchase. If the product purchased with Muse Credit(s) is returned, the purchaser will not receive any reimbursement for the Muse Credit(s).

Muse Credits are issued for promotional purposes; they have no cash value and may not be transferred to anyone or exchanged for cash. Muse Credits may not be combined with any other incentives, discounts, or referral programs.

Muse Credits may not be earned by creating multiple Muse Accounts. Muse Credits accrued in separate referrals can be combined.

We reserve the right to any remedy, including cancellation of your account or subscriptions, if fraud, tampering, violations of these terms or our Terms of Service, technical errors or misuse of the promotion are suspected. Void where prohibited. If your purchase later qualifies for a refund, the maximum refund you may receive is the amount you actually paid.

You are responsible for any tax consequences, if any, that may result from your redemption or use of Muse Credits.
Sharing Referral Links

Referrals may only be used for personal and non-commercial purposes. Referral links should not be published or distributed on websites (such as coupon websites, Reddit, or Wikipedia) or on third party websites or blogs. Members are prohibited from “spamming” anyone with referral invitations. This includes mass emailing, publishing, texting or messaging people you do not know or using automated systems or bots through any channel to distribute your referral link. Members are prohibited from paying to advertise or advertising their referral links.
Multiple Referrals

A Receiver may only use one referral link. If a Receiver receives referral links from multiple Members, only the Member associated with the referral link actually used by the Receiver will receive the Muse Credit. Any referrals made by the Member after the 10th new referral will not be eligible for participation in this Program.
Severability

If any provision in these Terms are held to be invalid, void, or unenforceable, such provision (or the part of it that is making it invalid, void or unenforceable) will be struck and not affect the validity and enforceability of the remaining provisions.
Privacy and Applicable Law

By participating in this Program you are consenting to our Privacy Policy at www.choosemuse.com/legal . The laws of Ontario, Canada apply to these Terms.

Termination, Changes, and Questions

We may suspend or terminate the Program or your ability to participate in it at any time for any reason.

Further, we reserve the right to suspend accounts or remove discount codes or Muse Credits if we notice any activity that we believe is abusive, fraudulent, or in violation of the Program Terms. We reserve the right to review and investigate all referral activities and to suspend accounts or modify referrals in our sole discretion as deemed fair and appropriate by us.

The scope, variety, and type of services and products that you may obtain by redeeming Muse Credits can change at any time and without notice.

If for any reason you believe that there is a discrepancy regarding your Muse Credits, please contact us at affiliates@choosemuse.com. We may require you to submit additional information in order to make a determination regarding your Muse Credits. All decisions regarding your Muse Credits will be final and at our sole discretion.
Translations

If these Program Terms are translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail ( http://www.choosemuse.com/legal/ ).
Updates to the Terms

We can update these terms at any time without prior notice. If we modify these terms, we will post the modification on the www.choosemuse.com website, applications, or services, which are effective upon posting. Continued participation in the Program after any modification will constitute your consent to such modification.

Accessibility Statement

Updated: December 2020

GENERAL

choosemuse.com strives to ensure that its services are accessible to people with disabilities. choosemuse.com has invested a significant amount of resources to help ensure that its website is made easier to use and more accessible for people with disabilities, with the strong belief that every person has the right to live with dignity, equality, comfort and independence.

choosemuse.com is taking measures to ensure that all of the pages on its website meet W3C WAI’s most recent Web Content Accessibility Guidelines, Levels A and AA.

DISCLAIMER

YourStore.com continues its efforts to constantly improve the accessibility of its site and services in the belief that it is our collective moral obligation to allow seamless, accessible and unhindered use also for those of us with disabilities.

Despite our efforts to make all pages and content on choosemuse.com fully accessible, this is a work in progress. To the extent any content is not fully accessible, this may be a result of choosemuse.com not having found or identified the most appropriate technological solution. Under such circumstances, we will work diligently to remedy any inaccessibility.

HERE FOR YOU

If you are experiencing difficulty with any content on choosemuse.com or require assistance with any part of our site, please contact us during normal business hours as detailed below and we will be happy to assist.

CONTACT US

If you wish to report an accessibility issue, have any questions or need assistance, please contact choosemuse.com

Customer Service as follows:

Email:customercare@choosemuse.com

SDK Terms and Conditions Agreement

INTERAXON DEVELOPMENT KIT (SDK) LICENSE AGREEMENT (“AGREEMENT”)

THE RIGHTS GRANTED TO DEVELOPER UNDER THIS AGREEMENT ARE EFFECTIVE AS OF THE SIGNING OR eSIGNING OF THIS AGREEMENT BY BOTH INTERAXON AND DEVELOPER (“EFFECTIVE DATE”). THIS AGREEMENT IS A LEGAL AGREEMENT ENTERED INTO BETWEEN DEVELOPER INCLUDING ITS EMPLOYEES AND CONTRACTORS WHO HAVE A DEMONSTRABLE NEED TO KNOW OR USE THE SDK IN ORDER TO DEVELOP APPLICATIONS ON ITS BEHALF (“YOU” OR “YOUR”) AND INTERAXON. BEFORE SIGNING or eSIGNING THIS AGREEMENT, PLEASE CAREFULLY READ THE FOLLOWING AGREEMENT. IF, PRIOR TO SIGNING, eSIGNING, OR DOWNLOADING, INSTALLING, ACTIVATING OR USING THE SDK, YOU DECIDE YOU ARE UNWILLING TO AGREE TO THE TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE SDK. IN THIS CASE, DO NOT SIGN OR eSIGN THE AGREEMENT OR ATTEMPT TO DOWNLOAD THE SDK BY ANY MEANS AND IF YOU HAVE ALREADY DONE SO, PROMPTLY DELETE THE SDK. NOTE: THE LICENSES BEING GRANTED TO YOU UNDER THIS AGREEMENT WITHOUT A FEE ARE BASED ON YOU SATISFYING THE REQUIREMENTS OF BEING A SME (DEFINED BELOW). YOU MUST NOT ENTER INTO THIS AGREEMENT OR ACCESS THE SDK IF YOU DO NOT SATISFY THE CRITERIA OF BEING A SME.
Definitions.

Unless otherwise defined herein, the following capitalized terms used in this Agreement shall have the following meaning:

“Application” means a software application and/or algorithm (which may or may not be embodied in a software application) developed by You using the SDK, including updates, upgrades, modifications, enhancements, revisions, new releases and new versions of such software applications.

“Authorized Application” means the Application, if any, described in an Authorized Application Approval and further described in Section 2. (Rights Granted).

“Authorized Application Approval” means a document, if any, entitled “Authorized Application Approval” signed by the CEO of Interaxon and issued by Interaxon to You, setting out any additional terms pursuant to which You may commercialize the Authorized Application described in such Authorized Application Approval.

“Confidential Information” means (a) the SDK, any information, data, or materials that are part of or made available by or through the SDK or by using the SDK, and all Interaxon technology, know-how, algorithms, testing procedures, software, structure, interfaces, specifications, reports, analysis and other technical information learned, accessed or derived by You pursuant to this Agreement or pursuant to Your use of or access to the SDK and, and that (b) Interaxon considers confidential and is identified as confidential prior to or at the time of its disclosure or would reasonably be considered confidential in the industries in which Interaxon operates. Without limiting the generality of the foregoing, Interaxon’s Confidential Information includes without limitation: (a) any performance or test results relating to Interaxon’s products, software or services, including performance of an Application in connection with Interaxon’s products, software or services; (b) Interaxon software’s source code, Sample Code, Updates and any tools, system files, APIs, firmware, software, documentation, algorithms, and other information and/or services and/or materials (and any updates thereto); (c) technical specifications related to Interaxon’s software or products; and (d) information identifying or about users, customers, suppliers, developers or partners of Interaxon. Confidential Information under this Agreement does not include information that: (i) has become generally publicly known without any improper action or inaction; (ii) was in Your rightful possession without any obligation of confidentiality to any parties before having access to the SDK; or (iii) is independently developed by You without use of or access to the Confidential Information as shown by contemporaneous documentation.

“Developer” means a person or other entity who has agreed to the terms of this agreement and/or who has access to Interaxon’s tools, firmware and other information and/or services comprising or forming part of the SDK.

“Excluded Application” means an Application (other an Authorized Application, if any, described in an Authorized Application Approval) which is: developed, sold, licensed, leased, made available for download or otherwise distributed or disposed of by or on behalf of an entity that is not an SME; or made, sold, licensed, leased, made available for download or otherwise distributed or disposed of as part of, or for use with, another application, system, machine or device (other than the Muse Device, a personal computer, or mobile phone); or designed for use, or that is primarily used, with or for control, whether direct or indirect, of life critical or safety-critical sessions such as use in the operation of medical or industrial equipment, automated transportation systems, autonomous vehicles, aircraft or air traffic control, nuclear facilities, manned spacecraft, or military use in connection with live combat. For clarity and notwithstanding anything to the contrary, under this Agreement or under any Authorized Application Approval unless You strictly ensure compliance with all Your obligations under this Agreement (including the Authorized Application Approval (if any) and the requirement to be a SME) both while developing the Application and selling, licensing, leasing or otherwise making it available for download, you have no rights under this Agreement.

“Intellectual Property” mean patents (including utility models), design patents, and designs (whether or not capable of registration), chip topography rights and other like protection, copyright, trade-mark and any other form of statutory or common law protection of any kind and applications for any of the foregoing as well as any trade secrets.

“Muse Data” means any data or signals received, collected, compiled, derived or generated from the Muse Device or the SDK including without limitation, electroencephalogram (EEG), electromyogram (EMG), electro-oculogram (EOG), and/or electrocardiogram (ECG) signals, accelerometer and/or gyroscope data, or data and also including without limitation, metadata and tags applied to such signals or data.

“Muse Device” means any device or system of devices manufactured by or on behalf of Interaxon, in whole or in part, which include:
Sensors; and/or output generators (e.g. LED eye mask) designed to produce signals (such as visual, thermal, electrical, auditory, tactile, and/or olfactory signals). Muse Device(s) may include devices such as headbands, eye masks, virtual reality device(s) or augmented reality device(s).

“Interaxon” “we” or “us” means Interaxon Inc. and/or its affiliates, with a principal place of business at 555 Richmond Street West, Suite 900, Toronto, Ontario M5V 3B1.

“Losses” means any harm, damages, losses or liability, including but not limited to being based on personal injury or death, property damage, system or device failure, loss or corruption of data, or breach of privacy or security.

“Sample Code” means source code that may be made available by Interaxon in connection with the SDK for assisting developers in using the SDK for the purposes of this Agreement, as further described in Section 12 (Sample Code).

“SME” means an entity which combined with its parent, subsidiaries and affiliated companies does not at any time have: (i) annualized gross revenue of US$100,000 or more, or (ii) an enterprise value of US$25 million or more.

“SDK” means, collectively, the system files, tools, APIs, software documentation, algorithms, other materials and any updates to the foregoing that may be provided or made available to the Developer by or on behalf of Interaxon pursuant to this Agreement .

“Sensor” means any device that detects biosignals (such as electrical activity in the brain, muscle activity, eye movement, heart rate, heart rate variability, respiration rate, respiration rate variability, galvanic skin response, heart beat patterns, blood oxygen levels, body temperature, and body temperature variability), motion, temperature, visual stimulation, movement, battery status, pressure, sound, ultraviolet light, and/or other signals.

“Updates” means updates, upgrades, modifications, enhancements, revisions, new releases or new versions to the SDK that Interaxon may make available to You in connection with this Agreement.

“You” or “Your” shall have the meaning assigned to such term in the preamble to this Agreement. You shall include the Developer.

Rights Granted.
Subject to compliance by You of all the terms and conditions set forth in this Agreement and only while you satisfy the requirements of being an SME, Interaxon grants You a non-exclusive, revocable, non-sublicensable, non-transferable and limited:
license to install, reproduce and use a reasonable number of copies of the software in the SDK solely for engaging in internal development and internal testing of Your one or more Applications for use with the Muse Device only;
license to make and distribute internally a reasonable number of copies of the documentation and other materials (other than software) in the SDK solely for engaging in internal development and internal testing of Your one or more Applications for use with the Muse Device only.
right to license the Application only to end users of Interaxon’s Muse Devices. For clarity, You have no right to license the Application to end users of other devices that generate biosignals, unless and to the extent the CEO or the COO of Interaxon, expressly and in writing approves the use of the particular device.
Notwithstanding anything to the contrary, You shall ensure that the Application and any associated products and services (including any Interaxon products and services) shall not be exported or re-exported or sold/licensed, leased, made available for download or otherwise distributed in contravention of the laws of any country including without limitation: (a) to any country or persons subject to UN Security Council embargo or action; (b) to any person or country in contravention of economic sanctions and embargoes of Canada, America, or any other country in which Interaxon, Interaxon subsidiaries, and or Interaxon affiliates are domiciled, incorporated or operates; (c) to persons or entities prohibited from receiving United States or Canadian exports or Canadian–origin, Chinese-origin, or United States-origin items; and/or (d) if the Authorized Application, or associated products and/or services, do not satisfy local laws requirements. If any of the circumstances listed in the preceding sentence apply, notwithstanding anything to the contrary, the rights granted under this Authorized Application Approval will be deemed to specifically exclude such country(ies), person(s), and channel(s), as applicable.

You acknowledge and agree that the rights granted under this Agreement are subject to and conditional upon: (i) Interaxon, in its sole discretion, being satisfied that You are at all times in good standing including, without limitation, in relation to any audit or reporting obligations set out in this Agreement: and (ii) the Developer satisfying the requirements of being an SME.

If you do not satisfy the requirements of being an SME, you must provide Interaxon with express written notice in accordance with the notice provision of this Agreement and cease exercising all rights under this Agreement until such time as You and Interaxon enter into an Authorized Application Approval that gives You the right to commercialize the Application (the “Commercial Agreement”). Such commercialization rights shall be subject to the terms and conditions of this Agreement and any additional terms and conditions set out in the applicable Authorized Application Approval, including without limitation, the licensing fees payable by You. If so expressly stated in the Authorized Application Approval, terms and conditions of such Authorized Application Approval may replace specific terms and conditions of this Agreement.

In connection with any rights granted under this section and any Authorized Application Approval, notwithstanding anything to the contrary: (i) You may not, directly or indirectly, publish, post or otherwise make available the SDK other than as compiled with, incorporated into, or packaged with, Your Application; (ii) Your Application may not contain malware or malicious or harmful code or other harmful components (e.g., a software virus), or damage, corrupt, degrade, destroy or otherwise adversely affect the security of the SDK, or any other software, firmware, hardware, data, systems, or networks accessed or used by or with Your Application; (iii) unless and to the extent authorized under an Authorized Application Approval, You have no right under this SDK to commercialize Your Application if you are not an SME; and (iv) You acknowledge and agree that issuance of an Authorized Application Approval by Interaxon does not mean that Interaxon authorizes, endorses, or recommends the use of Application with the Muse Device and You will ensure that Interaxon has no liability in connection with the Application.

For greater certainty: (a) You may not copy or distribute (or have copied or distribute) the SDK, and (b) except to the extent expressly authorized under an Authorized Application Approval or this Agreement, You may not import or sell/license or offer for sale/license or distribute Your Application. If You are not an SME and you wish to distribute, exploit or otherwise commercialize Your Application (unless and to the extent authorized under an Authorized Application Approval), You may not do so under this Agreement, and must contact Interaxon’s business development team at business@interaxon.ca and enter into an appropriate agreement with Interaxon.
Limitations. Except as expressly set forth in this Agreement, You may not and will not permit or facilitate any other person to:
modify, adapt, alter, edit, correct, translate, publish, sell, transfer, assign, convey, rent, lease, loan, pledge, sublicense, distribute, export, enhance, or create derivative works based upon the SDK or Muse Device, in whole or part, or otherwise grant or transfer rights to the SDK or the rights granted herein in any form or by any media (electronic, mechanical, photocopy, recording, or otherwise);
reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions), decompile, disassemble or otherwise attempt to deconstruct, identify or otherwise reduce the SDK to any human readable form or attempt to discover any source code, underlying ideas, techniques, or algorithms in the SDK, Muse Device or any software therein https://choosemuse.com/brand-guidelines; or use, copy, sell, license, offer for sale or license, import, or distribute the SDK, the Muse Device or Your Application for or in connection with system, products or uses where failure or fault of any of the foregoing could lead to Losses.
access Muse Data except through the use of the SDK.
offer or make available Muse Data as a service, platform or offering.
Use the Application with a third party device and not the Muse Device without express written approval by Interaxon’s CEO or COO.
File patent applications or other intellectual property applications anywhere worldwide with subject matter that relates to the Confidential Information without express prior written approval by Interaxon.
Intellectual Property Rights. You shall continually use Your best efforts to protect Interaxon’s trade-marks, trade names, patents, copyrights, and other proprietary rights, but shall not initiate legal action against third parties for infringement thereof. In connection therewith, You agree to comply with Interaxon’s then-current branding guidelines (“Branding Guidelines”) applicable to this Agreement (which may be available on Interaxon’s website (Branding Guidelines) or obtained by emailing branding@interaxon.ca) as they may be modified or amended by Interaxon from time to time, which shall be deemed to be incorporated by reference into this Agreement. You will not use Interaxon’s marks (including, without limitation, as part of any press releases, products, services, domain name, company name, marketing and/or promotional materials) without Interaxon’s prior express written consent and in compliance with Interaxon’s Branding Guidelines. You shall promptly notify Interaxon of any infringement or improper or unauthorized use of which You have actual knowledge. The SDK and Muse Device and the product specifications are subject to or embody intellectual property rights of Interaxon, including patent rights and copyright as applicable in which case all right and title to all inventions and copies is retained by Interaxon. You shall not alter, remove, cover or otherwise obscure any patent notices, copyright notices, trade mark notices and any other intellectual property right notices attaching to, displayed on or within the SDK or any software or documentation relating thereto. Your rights to access the SDK do not give you any right to implement Interaxon patents or other intellectual property in software or devices. You hereby grant to Interaxon a non-exclusive, irrevocable, fully paid-up, royalty free, perpetual, transferable, sublicensable, worldwide license to use (without restriction) to any innovation you develop using Interaxon’s Confidential Information. You acknowledge that, subject to the rights granted herein, Interaxon retains all right, title and interest, including, without limitation, Intellectual Property rights, in and to its products or services. You will have only those rights in or to the products or services of Interaxon that are expressly granted herein. You acknowledge that the SDK and the Muse Device contain valuable trade secrets and other intellectual property of Interaxon. Neither You nor anyone acting on Your behalf, including employees, independent contractors or agents shall acquire any Intellectual Property rights related to the SDK or Muse Device, or contained therein.

Evaluation.

Interaxon may from time to time introduce an evaluation or beta program to users or potential users for any Interaxon product or service. Notwithstanding anything else to the contrary, if You acquire any evaluation or beta product or choose to participate in the evaluation or beta program, You are agreeing: (i) that the Interaxon product or service is provided on an “AS IS” basis and without any liability to Interaxon and may be a “beta” product or service that is still in development; (B) that Interaxon does not warrant or make any representations about the performance of any evaluation or beta product or service, including any associated documentation or materials ; (C) You may require third party products and services in order to use the evaluation or beta products or services; and (D) any information or materials provided by Interaxon in relation to an evaluation or beta, together with any feedback provided by You or through You, shall be deemed to be Interaxon’s Confidential Information.

English Language.
This Agreement is and will only be provided in the English language. The SDK, user information, user interface, support and communication, may only be provided in English. In which case, do not use the SDK, the Muse Device or any Interaxon products, software or services unless You can fluently read and understand English. Further, do not install, download or use the SDK unless You can fluently read and understand English. You acknowledge and represent that You have carefully reviewed this Agreement and understand the terms and conditions contained in this Agreement and that You have no questions regarding the meaning or effect of any of the terms, provisions or conditions of this Agreement.

Acknowledgment and Waiver.
You acknowledge and agree that: (A) You must take steps to design, implement and test Your Applications to ensure that Your Applications do not present risk of Losses or Losses; (B) the Muse Device and other software in the SDK may not always function as intended; (C) You must design Your Applications so that any failure of the Muse Device or Your Application and/or any other product or technology that is part of a solution that includes Your Application does not cause Losses; (D) if You choose to use the SDK, (i) You assume all risk that use (by You or others) of the Muse Device, Your Application and/or such other product or technology that is part of a solution that includes Your Application, causes any Losses, including any Losses incurred by end users of Your Applications or Interaxon or other third parties, (ii) You hereby waive all claims against Interaxon related to such use and any Losses resulting from such use, whether directly or indirectly, and (iii) You agree to hold Interaxon harmless from any claims, liability and losses based on the foregoing; (E). Except to the extent authorized in writing, You shall not make any representations or public statements that constitute, or may be inferred as constituting, statements regarding the performance of the Muse Device, or of any other product, software, or service of Interaxon; (F) on your behalf and on behalf of your affiliates, successors, assigns, or any other third party claiming through you, You hereby covenant not to bring any suit or claim, or otherwise assert or facilitate the assertion of any suit or claim against any Interaxon Related Parties: (i) based on or related to any innovation developed by or on behalf of the Developer using the SDK, any Confidential Information, intellectual property rights of Interaxon, or other information accessed from the SDK; or (ii) arising directly or indirectly out of the use of the SDK or the Application or the termination of this Agreement by Interaxon; (F) Interaxon Related Parties have and/or may from time-to-time develop, and/or authorize others to develop, applications that may be similar to or compete with Developer’s applications, products or services and that nothing in this Agreement precludes Interaxon and/or its affiliates, or others so authorized, from doing any of the foregoing.

Ownership, Confidentiality, and Marketing.
You agree that all right, title and interest in and to the Confidential Information and the SDK, in whole or in part, and including without limitation, all patent, copyright, trade-marks, trade secret and all other intellectual and industrial property rights therein and the structure, sequence and organization of same, and the media on which such material is contained shall, between You and Interaxon, belong to Interaxon or licensors to Interaxon. Your sole rights thereto shall be only those rights granted by Interaxon under this Agreement. You agree and acknowledge that Interaxon has and reserves the exclusive, world-wide right in perpetuity to protect the SDK, Confidential Information, and all product, software and service specifications and any part thereof, under any laws for the protection of intellectual and industrial property, including without limitation, trade secrets, trademarks, copyrights, industrial designs and patents. You agree and acknowledge that you will not file intellectual property applications with subject matter that relates to the Confidential Information or the SDK without notice to Interaxon and express written consent of Interaxon.
You shall treat the Confidential Information in strict confidence and shall not disclose, transfer, copy, reproduce, electronically transmit, store or maintain, remanufacture or in any way duplicate all, or any part of, the Confidential Information except in compliance with the terms and conditions of this Agreement. You shall be directly liable for the acts or omissions of Your employees, agents and contractors with respect to such confidentiality obligations. You agree to protect the Confidential Information with the same standard of care and procedures which You use to protect Your own trade secrets, proprietary information and other confidential information and, in any case, not less than a reasonable standard of care For greater certainty and without limitation, your obligation to treat Confidential Information in strict confidence and take measures to protect the Confidential Information survives this agreement given that Confidential Information can include trade secrets of Interaxon. You shall not use any Residual Information for any purpose whatsoever except in accordance with the terms and conditions of this Agreement, including without limitation, the development of Your own products, applications or business or on behalf of others. For the purposes of this Agreement, “Residual Information” shall mean any Confidential Information which may be retained in intangible form in Your mind or the minds of those working with You who have had access to such Confidential Information. For greater clarity and without limitation, you agree and acknowledge that Residual Information cannot be used to develop innovations for use with other devices that are not the Muse Device.
Solely for the purposes of enabling Interaxon to test and promote Your Application and/or Interaxon’s business and technology, You hereby grant to Interaxon a non-exclusive, worldwide and royalty free license to use, reproduce, display, and perform (as applicable): (A) Your Application; (B) screenshots, brand elements, assets, photographic, graphic or video reproductions or fragments of Your Application; (C) Your name, trade name or trademark in any medium or media. The license for (A) shall end upon termination or expiration of this Agreement. The license for (B) and (C) will terminate one (1) year after termination or expiration of this Agreement, except that this license after termination or expiration of this Agreement shall not apply to any documentation and materials created and distributed after the effective date of termination or expiration of this Agreement.
Interaxon takes proper handling and privacy of data very seriously, You shall ensure that Your Application and its use and distribution shall comply with all applicable laws including without limitation, privacy laws and regulations, and that You have obtained all necessary consents pursuant to those applicable laws and regulations as may be required or be advisable for disclosing any personal information to Interaxon.
Except to the extent prohibited or restricted under applicable law, or expressly authorized under this Agreement, You are prohibited from using any Confidential Information or the SDK for the design, development, support, testing, repair or manufacture of any product, software or service that is not used with the Muse Device.
If it becomes evident to Interaxon or Developer that Developer has misrepresented or withheld any relevant information and/or failed to comply with any of its obligations under this Agreement, in addition to any other remedy and/or any right to recourse available to Interaxon, Interaxon may:

demand from Developer the underpaid or unpaid fees, together with interest at the lesser of two percent (2%) per month compounded monthly (26.8% annually) and the maximum rate permitted by law compounded monthly, calculated from the time the underpaid or unpaid fees were originally due until the time they are paid, which Developer shall immediately pay to Interaxon; and/or
demand that Developer takes certain corrective action or reporting as Interaxon requests, which Developer shall immediately undertake; and/or
exercise any of its rights under this Agreement; and/or send a request to the applicable application or skill store (including, but not limited to, iTunes App Store and Google Play App Store) to terminate publishing of the Authorized Application.

Feedback.
You may (but are not required to) provide feedback, performance results, comments and suggestions, including in respect of or concerning any improvements, modifications, corrections, enhancements or derivatives (collectively, “Feedback”) to Interaxon concerning the SDK, the Muse Device or any other intellectual property, products, software, or services of Interaxon. You hereby grant to Interaxon a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose. Interaxon may develop technology, modifications, corrections, enhancements, derivatives or extensions (collectively, “Improvements”), and further may also develop branding elements based on such Feedback, and such Improvements and branding elements, and any intellectual property rights therein, as well as any related intellectual property registrations, shall be owned exclusively by Interaxon. You hereby assign and transfer any intellectual property rights that relate to Feedback to Interaxon. You agree to execute such further documents and instruments as may be required to confirm such ownership by Interaxon. For greater clarity and without limitation, Interaxon owns all intellectual property rights to such Feedback, and such Improvements.

Amendments.
Interaxon reserves the right to change, amend or modify the terms of this Agreement or the SDK from time to time by publishing a notification of such change at its website (eg. www.choosemuse.com or www.interaxon.ca) or notifying you via email or other electronic notification regarding such change. In such instance, You may be required to accept and agree to the new terms of this Agreement. If You do not agree to any such new terms, You must cease or terminate Your use of the SDK. Your continued use of the SDK after any modification to any of the terms of this Agreement shall be deemed to constitute Your acceptance of any such new terms, conditions or modifications.

Term and Termination.
Term.

This Agreement will commence upon acceptance of the terms hereof and shall continue until terminated in accordance with the terms of this Agreement. By downloading, installing, activating or using the SDK You are deemed to have accepted the terms of this Agreement.

Termination by You.

You may terminate this Agreement by uninstalling and destroying all copies of the Muse Data, SDK and any other Interaxon confidential and/or proprietary information that are in Your possession, custody or control and by ceasing use of the SDK or distribution of Your Application, as the case may be. If any rights granted by You to Interaxon cease upon termination, You must give Interaxon express written notice in accordance with the notice provision under this Agreement, that You have terminated this Agreement in accordance with this Agreement and that the rights specified in the notice have terminated as well. If You fail to give such notice, any rights granted to Interaxon will continue.

Termination by Interaxon.

Interaxon may forthwith terminate this Agreement (or portion thereof) by providing you notice of termination in the event You breach any of the terms and conditions of this Agreement. [In addition, Interaxon may, at any time and for any reason, terminate this Agreement (or portion thereof) by providing You forty-five (45) days prior notice.
Effect of Termination. Upon termination of this Agreement (or portion thereof), all rights granted to You under this Agreement (or portion terminated) will immediately terminate. In addition, upon termination of this Agreement, You must immediately cease all use and destroy all copies of the SDK and erase and destroy all copies of Interaxon’s Confidential Information in Your possession, custody or control, and, where applicable, cease Your distribution of Applications.

Indemnification.
You agree to indemnify, hold harmless and defend Interaxon and its affiliates and their respective officers, directors, employees, agents, and representatives harmless from any and all judgments, awards, settlements, liabilities, damages, costs, penalties, fines and other expenses (including court costs and reasonable legal fees) incurred by them arising out of or relating to any claim: (a) with respect to the Application and/or the use or distribution of the Application in combination with any other product, service, device, system or solution (collectively, “Application Use”), including without limitation claims based on any Losses incurred in connection with Application Use or any claims based on Application Use infringing any intellectual property rights, (b) based upon Your negligence or willful misconduct or, (c) based on or arising out any breach or alleged breach of Your representations, warranties, and covenants under this Agreement.

The indemnification obligations under this Agreement are subject to the following: (a) the indemnified party promptly notifying the indemnifying party of the claim, (b) the indemnifying party shall have the sole control and exclusive conduct of the defense of such action and/or negotiations for its settlement or compromise, (c) the indemnified party shall furnish to the indemnifying party on request all information in the indemnified party’s possession or control for such defense, (d) the indemnified party will not admit any claim or make any payments with respect to any claim without the indemnifying party’s prior written consent, and (e) the indemnified party will, at the indemnifying party’s reasonable expense, cooperate with and provide all necessary assistance reasonably requested by indemnifying party in the defense of such claim.

Warranty Disclaimer.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SDK, MUSE DATA, MUSE DEVICES AND ANY TOOLS AND DOCUMENTATION ARE PROVIDED TO YOU ON AN “AS IS” BASIS AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW OR OTHERWISE, REGARDING THE SDK, MUSE DATA, MUSE DEVICES, OR ANY TOOLS OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH, AND WITHOUT LIMITING THE FOREGOING INTERAXON HEREBY EXPRESSLY EXCLUDES TO THE EXTENT POSSIBLE AT LAW ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND INCLUDING WITHOUT LIMITATION THOSE OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, DURABILITY, MERCHANTABILITY, FUNCTIONALITY, QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE..
INTERAXON DOES NOT WARRANT THAT THE SDK WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED, ERROR FREE OR SECURE BEYOND WHAT IS OTHERWISE WARRANTED HEREIN OR THAT ALL CONTENT OR DATA DELIVERED UNDER THIS AGREEMENT OR THROUGH USE OF THE SDK OR MUSE DEVICE WILL BE APPROPRIATE OR APPLICABLE FOR YOUR USE. INTERAXON DISCLAIMS ANY LIABILITY FOR ANY CONSEQUENCES DUE TO USE, MISUSE OR INTERPRETATION OF INFORMATION CONTAINED, OR NOT CONTAINED, IN THE SDK, MUSE DEVICES OR ANY TOOLS OR INTELLECTUAL PROPERTY.
INTERAXON DOES NOT WARRANT THAT THE SDK OR THE MUSE DEVICE WILL OPERATE WITH ANY APPLICATION OR PRODUCT.
MUSE DATA IS SOLELY FOR INFORMATION PURPOSES AND IS NOT TO BE USED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE, TO PRESCRIBE MEDICATION, OR AS A SUBSTITUTE FOR A MEDICAL DEVICE OR TREATMENT. IN SOME CIRCUMSTANCES, MUSE DATA MAY REPORT FALSE OR INACCURATE RESULTS.

Limitation of Liability.
EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, INTERAXON SHALL NOT BE LIABLE TO YOU OR ANY PARTY MAKING A CLAIM AGAINST INTERAXON THROUGH YOU FOR SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES OR LOSS (INCLUDING DEATH AND PERSONAL INJURY), IRRESPECTIVE OF THEIR CAUSE, NOTWITHSTANDING THAT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, NOR FOR ANY CLAIMS FOR SUCH LOSS OR DAMAGE INSTITUTED AGAINST A PARTY OR ITS CUSTOMERS BY ANY THIRD PARTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, INTERAXON ASSUMES NO LIABILITY FOR ANY LOSS OF: USE, DATA, OR THE PROVISION OF INCORRECT DATA, INCOME, BUSINESS, PROFIT, ANTICIPATED REVENUE OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS (EVEN IF INTERAXON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS). IN NO EVENT SHALL INTERAXON’S LIABILITY TO ANY PERSON OR ENTITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES PAID BY YOU TO INTERAXON UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Miscellaneous.
Records and Licensing Fees. You acknowledge and agree that Interaxon is waiving its right to collect licensing fees based on Developer’s representation and warranty that Developer will at all times satisfy the requirements of being a SME. If the SME fails to satisfy the requirements of being an SME and has not entered into a Commercial Agreement, in addition to any other remedy available to Interaxon, the waiver referenced in the preceding sentence will not apply and Developer shall within 30 days of receiving Interaxon’s invoice, pay Interaxon its standard licensing fees applicable to Developers that do not meet the criteria of being SMEs (the “Non SME Licensing Fees”). The obligation to pay the licensing fees referenced in the preceding sentence will, commencing on the Effective Date of this Agreement. As at January, 26, 2022 the Non SME Licensing Fees are USD$500 per month plus 10% of the Developer’s gross revenues connected with the licensing, use, or other commercialization or exploitation of the Application (alone or with other offerings) and includes, without limitation, revenues paid or payable to Developer from: (i) licensing the Application, use of the Application, or any in app purchases, (ii) use of the Application as part of a service offering, (iii) any products or services offered by or on behalf of the Developer with or for the Application (for example, for data collection and analysis), and (iv) use of the Application by any of Developer’s personnel, affiliates, service providers, retailers, resellers, channel partners, or customers.
Within fourteen (14) days of Interaxon’s request, Developer shall provide Interaxon in a form reasonably acceptable to Interaxon, with accurate and complete records (including financial statements) that can be used by Interaxon to satisfy itself that Developer met the requirements for a SME (“Status Related Records”) at the time of entering into this Agreement and continues to do so at the time of the request.

Developer shall maintain the Status Related Records in compliance with standard business practices to ensure that Interaxon has the necessary information to be able to conduct an inspection, reconciliation and/or audit contemplated under this Agreement.
Prior to releasing the Status Related Records to Interaxon, the Developer must ensure that an authorized signatory of the Developer has certified them to be accurate and complete.

Developer shall forthwith and continually cooperate with Interaxon in connection with its request for inspection, reconciliation and/or audit of the Developer’s records. Any and all non-public information related to Developer or its business revealed in the course of such reconciliation shall be kept confidential by Interaxon, and shall not be used for any purpose except to the extent reasonably necessary to determine Developer’s compliance with the provisions of this Agreement and/or to enforce Interaxon’s rights.

Survival.

The provisions of this Agreement that under a commercially reasonable interpretation reveal that the parties would have such provisions survive the termination of this Agreement, including without limitation, Your payment obligations under this Agreement, and Your obligations under Sections 2, 3, 4, 5, 8, 9, 10, 11, and 12 of this Agreement, and Authorized Application Approval (if applicable) will survive termination of this Agreement.

Assignment. Interaxon may assign this Agreement and any of its rights hereunder, or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, at its sole discretion. You shall not assign this Agreement or any of Your rights hereunder, nor delegate any of Your obligations under this Agreement without Interaxon’s prior written consent. Any attempted assignment or delegation by You without Interaxon’s prior written consent is void.

Waiver; Severability. The failure of the other party to enforce any rights under this Agreement will not be deemed a waiver of any rights. The rights and remedies of the parties in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.

Force Majeure. In no event will Interaxon be liable for any failure or delay in performance of this Agreement which is caused by something that is in the control of third parties or circumstances beyond the reasonable control of a party (collectively, “Force Majeure”). Force Majeure events shall include (but not be limited to) acts of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment, software or services (including the internet and telecommunication services); or material required for the performance of obligations under this Agreement. Notwithstanding the forgoing, under no circumstances will a party’s obligation to pay any amount under this Agreement be obviated by an event of Force Majeure.

Governing Law and Jurisdiction.

This Agreement shall be governed by and construed in accordance to the laws applicable in the Province of Ontario, Canada, without giving effect to the principles of conflicts of law and excluding that body of law applicable to choice of law and excluding the United Nations Convention for the International Sale of Goods, if applicable. Any claim or court proceeding brought by Interaxon in relation with this Agreement may be presented in the Province of Ontario, Canada. You agree that the courts of the Province of Ontario, Canada constitute the appropriate forum for any claim or court proceeding in relation with this Agreement and submits to the exclusive jurisdiction of such courts.

Relationship of the Parties.

This Agreement does not create any agency, partnership, or joint venture relationship between You and Interaxon.
Notice. Any notice required to be given to Interaxon hereunder must be sent to the following address: Interaxon Inc. 555 Richmond Street West, Suite 900, Toronto, Ontario M5V 3B1 Attention: CEO.
With a copy to: Interaxon Inc. Legal Department 555 Richmond Street West, Suite 900, Toronto, Ontario M5V 3B1 and to HR@interaxon.ca.
Interaxon may provide You notice under this Agreement at Your office address or by email or other electronic communication or by posting communications to its development community on developer.choosemuse.com. You consent to receive such notices in any of the foregoing manners and agree that any such notices by Interaxon will satisfy any legal communication requirements.

Entire Agreement.

This Agreement and any Authorized Application Approval issued by Interaxon in relation to the Application constitute the entire understanding of the parties with respect to its subject matter and supersedes any previous or contemporaneous communications, whether oral or written with respect to such subject matter. Any SDK license agreement and any other agreements between You and Interaxon relating to the Application (“Other Agreements”) granting you any rights to develop applications are terminated and you have no further rights (including any licenses) granted pursuant to those agreements. In connection with such Other Agreements, it is
agreed that this Agreement is deemed to replace such Other Agreements, including in connection with any use of the SDK or predecessor to the SDK prior to the date of this Agreement. To the extent that the Other Agreements granted to You rights that are not available under this Agreement, You agree that such rights are voided by this Agreement, and there are no claims or Losses arising from the voiding of such rights.

No Claims.

Without limiting any other provision, You covenant that You shall make no claims of any kind whatsoever upon or against Interaxon, either on their own account or on behalf of any third party, arising directly or indirectly out of the use of the SDK or the Application or the termination of this Agreement by Interaxon.
Counterparts/Electronic Signatures. This Agreement may be executed in two or more identical counterparts, facsimile counterparts, or electronic counterparts, each of which when executed by a Party shall be deemed to be an original and such counterpart shall together constitute one and the same agreement. This Agreement may also be executed by means of an electronic signing process.

Sample Code.
In some cases, You may wish to include Sample Code, or portions of Sample Code in Your Applications. You may use such Sample Code, solely for the purpose of development, use or distribution of Applications as specifically otherwise authorized by Interaxon pursuant to this Agreement and/or an Authorized Application Approval, and further subject to any applicable terms and conditions that are included in the source code file for the applicable Sample Code, including any attribution notices to Interaxon. If Sample Code item does not include a statement of license, contact customer support prior to your use of the Sample Code to inquire about the license that will apply.

Membership Agreement

Please read the following membership terms (the “Agreement”) carefully before commencing your membership with Interaxon Inc. (“us”, “we”, “our” or “Interaxon”).

This Agreement sets forth the legally binding terms and conditions for your membership with Interaxon (your “Membership”).

These terms apply to your access to and use of our:

(a) Software, which may be downloaded as an application, accessed online through our website, or embedded within our products – and includes any updates or upgrades we provide;
(b) Services, including content, which are for use in conjunction with our software and products; and
(c) Products, including the Muse device.

This Agreement covers important information about what is included with your Membership, any applicable charges, any future changes to this Agreement, and the duration and automatic renewal of this Agreement.

“You” and “your” refers to the person or entity who has the Membership. You may be an individual person or, if the Membership is created on behalf of an employer, company, organization, or other entity, then (i) “you” or “your” means that entity, and (ii) the person who creates the Membership confirms that they are authorized by the entity to create the Membership and to agree to this Agreement on behalf of the entity.

The use of “for example”, “includes” and “including” are not limiting and “all” includes “any” and “any” includes “all”.

By accessing and using your Membership in any manner, you are acknowledging that you have read, understood, and agree to be bound by this Agreement and our Privacy Policy (see: www.choosemuse.com/legal/privacy (“Privacy Policy). Our Privacy Policy forms part of this Agreement. You accept that we may update or amend any element of the Agreement and/or Privacy Policy from time to time. We will publish any updates or amendments to the Agreement and/or Privacy Policy on our website, and those updates shall take effect from the time they are published. Unless required by applicable law, we will not notify you in advance of any such updates or amendments.

By continuing to access or use your Membership after we update or amend the Agreement and/or Privacy Policy, you are acknowledging you have read, understood, and agree to be bound by the updated Agreement and/or Privacy Policy.

If an update or amendment to the Agreement and/or Privacy Policy has a material adverse impact on your rights and obligations you may terminate this Agreement within ten (10) days of the updated or amended Agreement and/or Privacy Policy coming into effect by notifying us in accordance with Section 16 (CONTACT), and we will provide you with a pro rata refund of any Membership Fee you have paid in advance for the period after your Membership ends.

While this Agreement and the Privacy Policy contain important terms, you should pay particular attention to the following terms:

(a) where you have an obligation to pay us (see Sections 4 (PAYMENT OF FEES AND PREPAID PERIODS) and 12 (COMPENSATION));

(b) when we may terminate this Agreement and how your Membership automatically renews (see Sections 4 (PAYMENT OF FEES AND PREPAID PERIODS)) and 10 (TERMINATION));

(c) we do not provide any medical advice (see Section 11 (NO MEDICAL ADVICE)); and

(d) what we are not responsible for and the limits on our liability (see Sections 12 (COMPENSATION) and 13 (WARRANTY;DISCLAIMER)).

INTRODUCTION

Your Membership is designed to allow you access and use our software, services and/or products and to track, manage and share wellness-related information collected through your access to and use of our software, services and/or products.

Whether you purchased a Membership or received a Membership from a third party, this Agreement will apply to your Membership.

Your Membership will begin upon payment of the Membership Fees (see Section 4(a) (Membership Fees)). Ten (10) days will be added to the end of your initial Membership term in order to account for shipping of the Muse device.
ELIGIBILITY

Memberships are only available to a person who is at least 16 years of age or who is older than the legal age to form a binding contract in the location where that person lives.

Parental consent is required for any person who is younger than 16 or who has not reached the legal age to form a binding contract in the location where that person lives (“Under Age Applicant”).

An Under Age Applicant may only access and use a Membership if their supervising parent or legal guardian acknowledges that they have read, understood, and agree to be bound by the Agreement and/or Privacy Policy on their behalf, in which case the supervising parent or legal guardian is considered to be the party to this Agreement on your behalf and is responsible for any and all activity through your Membership.

You represent and warrant that: a) you are of legal age to form a binding contract with Interaxon, and b) you are not barred from accessing or using the Membership under the laws of the United States, Canada, or other applicable jurisdiction.

We may, in our sole discretion and at any time, refuse to allow access to and use of a Membership to any person or entity, and we may change our eligibility criteria for a Membership.

Your access to and use of your Membership may be revoked (automatically or by notice) where this Agreement or your access to or use of Your Membership (or any part thereof) is prohibited by any applicable law, rule or regulation.
ACCOUNT

In order to have access to and use of your Membership, you must register and create an account (“Account”).

You agree to provide true, accurate and complete information and keep your Account information current and updated. You will only select or use a username for yourself – do not use the name of, or otherwise impersonate, any other person (unless that person has provided you with their authorization to do so).

You are solely responsible for any and all activities that occur under your Account, and for keeping your Account password confidential and secure. You must not use any other person’s account or registration information (unless that person has provided you with their authorization to do so).

You agree to notify us immediately of any: (i) change in your eligibility to access or use your Membership, or (ii) breach of security or unauthorized use of your Account or password. You should never publish, distribute or post login information for your Account.

Interaxon reserves the right to limit the number of Muse devices associated with an Account, and only one Account may be associated with a given Muse device. If Interaxon suspects that any registration data provided is inaccurate or incomplete, Interaxon may suspend or terminate the Account without notice.

You have the ability to delete your Account, either directly or through a request made to us. We are not liable for any loss or damage arising from your failure to comply with this Section.
PAYMENT OF FEES AND PREPAID PERIODS
- a. Membership Fees. In order to have access to and use of your Membership, you must pay the applicable membership fees (“Membership Fees”) when due.
  
  You may be given the opportunity to prepay your Membership Fees for a period of time (“Initial Membership Term”). At the conclusion of the prepaid period, unless you cancel at least 24 hours prior to renewal, your Membership will automatically continue to renew (See subsection 4.e (Recurring Billing)).
  
  If your payment of the Initial Membership Fee includes a Muse device, you will retain ownership of that Muse device thereafter.
- b. Payment . You agree to pay the Membership Fees as described in this Agreement and during the purchase and payment process. Any payment terms presented to you in the process of obtaining your Membership are deemed part of this Agreement and are incorporated herein by reference. Except as otherwise provided in this Agreement, all payments for Membership Fees are non-refundable.
- c. Billing. We may collect payments from you directly or we may use a third-party payment processor (“Payment Processor”) to bill you through a payment account linked to your Account (your “Billing Account”) for your Membership. The processing of payments by a Payment Processor will be subject to the terms, conditions and privacy policies of such Payment Processor in addition to this Agreement. We are not responsible for any errors by a Payment Processor. By choosing to purchase a Membership, you agree to pay us, either directly or through a Payment Processor, all Membership Fees and other charges at the prices then in effect and in accordance with the applicable payment terms, and you authorize us, through a Payment Processor, to charge your chosen payment provider (your “Payment Method”). You agree to make payment using your selected Payment Method. We reserve the right to correct any errors or mistakes that we or a Payment Processor make even if we or a Payment Processor have already requested or received payment.
- d. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through a Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand. Members can update their credit card information through the “Account” section of the app or by going to “Account Settings” at https://museaccount.choosemuse.com.
- e. Recurring Billing. The Membership payment terms may consist of an Initial Membership Term, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Membership Fees have an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY, SEMI-ANNUALLY, ANNUALLY, OR EVERY TWENTY-FOUR MONTHS, DEPENDING ON THE MEMBERSHIP PERIOD YOU SELECT) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, GO TO ACCOUNT SETTINGS AT https://museaccount.choosemuse.com/.
- f. Current Information Required. YOU MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR YOUR BILLING ACCOUNT. YOU MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP YOUR BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND YOU MUST PROMPTLY NOTIFY US OR OUR PAYMENT PROCESSOR IF YOUR PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF YOU BECOME AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF YOUR USERNAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS AT https://museaccount.choosemuse.com. IF YOU FAIL TO PROVIDE ANY OF THE FOREGOING INFORMATION, YOU AGREE THAT WE MAY CONTINUE CHARGING YOU FOR ANY MEMBERSHIP FEES UNDER YOUR BILLING ACCOUNT UNLESS YOU HAVE TERMINATED YOUR MEMBERSHIP AS SET FORTH ABOVE.
- g. Auto-Renewal. Members will have the option of choosing an Initial Membership Term of: (i) three (3) months, (ii) twelve (12) months, or (iii) twenty-four (24) months. Members can upgrade or downgrade to a different Membership Term through the “Settings” menu in the “Account” section in the app or by going to “Account Settings” at https://museaccount.choosemuse.com. Unless you notify us otherwise (as described below), your Membership will be automatically renewed at the end of the each Membership Term for:
  - (i) successive three (3) month periods if you have purchased a three (3) month membership,
  - (ii) successive twelve (12) month periods if you have purchased a twelve (12) month membership, or
  - (iii) successive twenty-four (24) month periods if you have purchased a twenty-four (24) month membership.
    
    In the case of a three (3) month, twelve (12) month or twenty-four (24) month Membership, we will notify you by email at least fifteen (15) days prior to such automatic renewal taking effect (or such other notice period as required by applicable law). Unless otherwise specified by us in the notice, the renewal period Membership Fees will be at a twenty percent (20%) discount off of the then-existing non-promotional price for your Membership category.
    
    To change or terminate your Membership, go to “Settings” in the app and follow the prompts under the “Manage My Plan” section. Alternatively, you can go to “Account Settings” at https://museaccount.choosemuse.com/ . If you terminate your Membership, you may continue to use your Membership until the end of the current Membership period that you have paid for, and your Membership will not be renewed once that period ends.
    
    If you do not want to continue to be charged on a recurring basis, you must cancel or terminate your Membership at least 24 hours before the end of the current Membership period. Your Membership cannot be terminated before the end of the Membership period for which the Membership Fees have already paid, and except as expressly provided in this Agreement, we will not refund any amounts that you have already paid.
- h. Reaffirmation of Authorization. Your non-termination or continued use of your Membership reaffirms that we are authorized to charge your Payment Method for that Membership. We may submit those charges for payment, and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Membership Fees may be payable in advance or as otherwise described when you select to purchase or renew your Membership.
- i. Outstanding Amounts. If any Membership Fees are outstanding for a period of three (3) days or more, your Account will go into an inactive state. If you make appropriate payment within seven (7) days of your Membership Fee due date, your Account will be reactivated, and you will be able to utilize the full functionality of the Membership. If your outstanding Membership Fees are not paid within seven (7) days, this Agreement will be terminated in accordance with Section 10 (Termination), and you will be unable to use your Muse device.
- j. Return Policy. If, for any reason, you are unsatisfied with the Membership, we offer full refunds, including any shipping fees, within thirty (30) days from payment of the Membership Fees for your Initial Membership Term. Please email members@choosemuse.com to request a refund. To return the Muse device, you must contact Interaxon via choosemuse.com/pages/contact to obtain a Return Material Authorization (RMA) number, shipping address, and instructions. You must: (i) ensure that the Muse device is not damaged, (ii) comply with the requirements of this Policy, (iii) provide proof of purchase, (iv) package the Muse headband in the original, unmarked packaging including, accessories, manuals, and documentation, (v) include the RMA number on and in the packaging, and (iv) prepay all shipping charges. Shipping fees, handling fees, and customs duties are at your expense and will not be refunded to you. Interaxon reserves the right to refuse or return headbands not sent in compliance with this Policy and charge you processing, shipping and handling charges.
SUPPORT

If you require support with your Membership, please contact us at http://choosemuse.com/pages/contact.
CONTENT

We may make certain Content available for you to access and use during your Membership and subject to this Agreement.

“Content” may include, without limitation, software, text, graphics, images, video, audio, data and other material. We may own the Content, or it may be owned by others, including other members or our partners, sponsors, or affiliates. Content is protected by intellectual property rights, including copyright under United States and other laws. As between you and Interaxon, Interaxon retains all right, title, interest, ownership and intellectual property rights in and to the Content.

During your Membership, you are allowed to access and use (i.e., download and display locally) the Content for your personal use only and may not be used in connection with any commercial endeavors. You are not allowed to:
- (i) use, copy, modify, distribute, store, sell, or license any Content for any purposes other than as part of your Membership;
- (ii) collect usernames and/or email addresses of other members by electronic or other means for the purpose of sending unsolicited email or other communications;
- (iii) use any of our software, services or products in a manner which, in our sole judgment, degrades the reliability, speed, or operation of our software, services or products;
- (iv) use web scraping, web harvesting, or web data extraction methods even if the Account owner gives permission; and
- (v) use any of our software, services or products in a manner that violates any copyright or trademark, is unlawful or is in violation of this Agreement.
Your access to and use of your Membership may be revoked (automatically or by notice) if you do not comply with this Section 6 (CONTENT) – if your Membership is revoked, you must cease using the Content and delete or destroy any copies you have made of the Content.

If we determine that you are not using the Membership responsibly, we have the right (but not the obligation) to remove, edit, block or delete your transmissions, User Content, or use of the Membership. If Interaxon, in its sole discretion, believes that you have engaged in or facilitated practices that: (i) are in breach of this Agreement, (ii) are offensive, illegal or violate the rights of others or Interaxon, (iii) violate any terms of use or guidelines established by Interaxon, or (iv) could result in liability for Interaxon, then Interaxon has the right (but not the obligation), without notice, to terminate your access to and/or use of all or a portion of the Membership, or delete posted or stored information.
THIRD-PARTY CONTENT

Various company, product, and service names displayed on our software, services or products may be trademarks or service marks owned by others (the “Third-Party Trademarks”). Your Membership does not give you any license or right to use any Third-Party Trademark.

Your Membership may give you access to links to, and content and data from, third-party websites (“Third Party Content”). We do not endorse any of the Third Party Content. Use of the Third Party Content may be subject to separate legal terms and conditions between you and the third parties.

Our services may permit access to content posted, stored, or displayed at the direction of other members – we do not accept any responsibility or liability for any such member content.
USER CONTENT

You may submit certain User Content when you access and use our software, services and/or products during your Membership. You are solely responsible for your User Content. You must comply with our User Content Policy – which is located at: www.choosemuse.com/legal .

You must make sure that:
- (a) all User Content is accurate, complete, up-to-date, and compliant with all applicable laws, rules and regulations; and
- (b) you either own all User Content and all intellectual property and proprietary rights in the User Content or your are permitted by the owner of the User Content to use, and to allow us to use, the User Content in the manner contemplated by our software, services and products and by this Agreement – this may include having consent from any person who is identifiable in the User Content.
“User Content” may include, without limitation:
- (a) text, graphics, photographs, images, software, music, video, audio, data, messages and other material,
- (b) user profile information or personally identifiable information that you submit and make publicly available,
- (c) any information collected by our software, services or products such as, but not limited to, statistics and measurements, wellness information and recovery scores, and
- (d) any information submitted by you to “tag” any activities recorded through the software, services or products.
We do not guarantee the confidentiality of any User Content that you submit and make available to others.

When you submit User Content, you are permitting us (and our affiliates, successors and sub-licensees) to edit, modify, truncate, aggregate, use, reproduce, distribute, prepare derivative works of, modify, display, perform, publish, share on social media platforms (i.e., posting User Content to Twitter or Facebook if enabled in your Account’s sharing settings), share with business partners and licensees for informational and analytical purposes, and otherwise commercially exploit all or any portion of the User Content in connection with our provision of our software, services and products and our business using any media format and through any media channel. We may do so during your Membership period and after your Membership ends without any fee or amount payable to you.

We may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required or permitted by law.
PERSONAL DATA

To the extent any personal data is submitted by you or we otherwise collect, such personal data is subject to our Privacy Policy ( www.interaxon.com/privacy ) and to applicable privacy and data protection laws and regulations. What is considered to be personal data is described further in the Privacy Policy and may be defined by applicable privacy and data protection laws and regulations. Generally, personal data is any data related to a natural person who is identified or identifiable – personal data may include the person’s name, email or other address(es), phone number(s), photographs, or other data that could identify the person or be used with other data to identify the user.

If you share information generated through or as part of your Membership with a third party such as a Professional or your employer, you may be able to do so by providing your consent to such third party and/or Interaxon. You may take back or revoke your consent (unless Interaxon has already acted based on it) by submitting a specific revocation request in writing to Interaxon through http://choosemuse.com/pages/contact , specifying that you revoke your consent to share information generated through your Membership with the specified third party. Your revocation will take effect, when Interaxon actually receives and processes your request. Interaxon cannot give it retroactive effect, so it will not affect any use or disclosure that occurred in Interaxon’s reliance on your consent prior to revocation. We are not responsible for any use or disclosure of your information by the Professional or another third party.
TERMINATION

We may terminate your Membership if you do not comply with this Agreement. Subject to applicable law, we do not have to provide you notice of such termination: your access to your Account and to our software, services and products may be revoked automatically or otherwise.

Subject to applicable law, we may also terminate your Membership and this Agreement at any time and for any reason by providing notice to you, in which case we will provide you with a pro rata refund of any Membership Fees you have paid in advance for the period after the effective termination of your Membership.

You must pay the Membership Fees when due in order to maintain an active Membership and to access and use our software, services and products (including the Muse device). If, due to a failure to provide up-to-date payment information, or for any other reason, any Membership Fees are outstanding for a period of seven (7) days, this Agreement shall automatically terminate.

You may renew your Membership for additional Membership periods by paying the applicable Membership Fee. Except as otherwise stated in this Agreement, we will not provide any refunds during the Membership period for which you have paid Membership Fees, even if you cancel or stop using your Membership.

If you have obtained a free Membership , your free Membership shall continue until: (a) the end of the applicable free Membership period, (b) you cancel your free Membership, (c) you upgrade to a paid Membership, or (d) we modify or discontinue, temporarily or permanently, your free Membership, which we may do at any time.

Upon cancellation or termination of your Membership for any reason, all licenses granted to you herein shall terminate automatically, your Muse device will be non-functional and you will be unable to use it. You will be unable to upload data or access: (i) historical data; (ii) your Account; (iii) our software; (iv) our services; and (v) any other offerings we may provide in connection with your Membership.
NO MEDICAL ADVICE

Content generated or found through your Membership, our products, services or software is for general informational purposes only and is not intended to replace the relationship between you and your physician, healthcare provider, coach or other professional you are working with (collectively, “Professional”). The Muse device is not a medical device, and we are not a licensed medical or healthcare provider and have no expertise in diagnosing, examining, or treating medical conditions of any kind. Further, you understand that any information generated from or through your Membership, or our software, services, or products is not medical information, and you are responsible for ensuring that medical information or other personal health information is not uploaded to our services or software.
COMPENSATION

You agree to compensate and reimburse us on demand for any losses or damages we suffer arising from or resulting from: (i) your User Content, (ii) your breach of this Agreement, (iii) your misuse of our Content or our software, services or products, and (iv) your violation of applicable laws or regulations. We reserve the right to assume the exclusive defense and control of any matter which is subject to this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
WARRANTY; DISCLAIMER

As a consumer, you have certain rights under law, and nothing in this Agreement can, or is intended to, limit or remove these rights. We don’t exclude or limit our responsibility to you for loss or damage where it would be unlawful to do so, including for faulty or misdescribed goods.

Our standard limited warranty for our products can be found here ( www.choosemuse.com/legal ). The warranty period will begin at the earlier of: (i) the point the Muse device is paired to the app; or (ii) thirty (30) days from shipment of the Muse device. Should damage to your Muse device not be covered under warranty, or covered under the upgrade policy in accordance with Section 17, and you have an active Membership, you can buy a replacement with preferential pricing.

We have taken every reasonable care in the provision of our software, services and products. However, subject to applicable law, our software, services and products and any content are provided on an “as is” and “as available” basis without any express or implied warranties or conditions of any kind. Subject to applicable law, we hereby disclaim all implied warranties and conditions (whether statutory or collateral) including, but not limited to, any warranty or condition of quality, durability, merchantability, quiet enjoyment, accuracy, non-infringement of third parties’ rights, and fitness for particular or general purpose.

Subject to applicable law, we do not, and our affiliates and partners do not:
- (a) make any warranties or representations about the content (including our Content, User Content or any content of third parties) or our software, services or products including, but not limited to, accuracy, reliability, completeness, timeliness, or reliability,
- (b) take any responsibility or liability for the truth, accuracy, or completeness of any information conveyed to user of our software, services or products or any content, or for errors, mistakes or omissions therein or for any delays or interruptions of the data or information stream from any cause,
- (c) make any warranty that our software, services or products or any content will be available error free, free of viruses or similar contamination or destructive features, and
- (d) provide replacement or repair services for your equipment or data and are not responsible for any such costs.
If you require the replacement or repair of any equipment or data, and you are not covered by an applicable warranty for the equipment or data in accordance with this Agreement, and subject to applicable law, you are solely responsible for any costs associated with the replacement or repair of the equipment or data.
OUR LIABILITY

If you suffer any losses or damages associated with or resulting from our services, software or products or from any content, and we are responsible for such loss or damage, we shall compensate and reimburse you up to a maximum of the amount of Membership Fees you have paid to us in the six (6) months prior to your claim even if the amount of your loss or damage is greater.

In some jurisdictions, consumer protection laws may not allow certain disclaimers or exclusions or limitations of liability and consequently some of the disclaimers, exclusions and limitations of liability in this Agreement may not apply in whole or in part.

We do not seek to exclude or limit our liability for death or personal injury caused by our negligence, or for any other liability that cannot be excluded or restricted by applicable law.
CHANGES

We may make changes to our software, services and products and to any content. We may suspend or discontinue our software, services and/or products (or any part thereof). We may introduce new features or impose limits on certain features or restrict access to our software, services and/or products (or any part thereof).

We may give you notice of when we make changes (including by updating our website or as otherwise required by applicable law), but you acknowledge that it is not always practical for us to provide notice. We may remove any Content or User Content at any time for any reason (including, but not limited to if someone alleges any User Content violates this Agreement, an applicable law or their or a third party’s rights) – we can solely make this decision and we may or may not provide you with notice.
GENERAL
- a. Assignment. You are not allowed to transfer or assign this Agreement, or any rights and licenses granted hereunder, to anyone else. We may transfer or assign this Agreement and, in which case, this Agreement will enure for the benefit of our successor or the assignee.
- b. Governing Law; Venue. This Agreement, and any disputes arising out of or in connection with them (including non-contractual disputes), are governed by and construed in accordance with the laws as specified below, excluding any conflicts of laws provisions (“Governing Law”). Where your primary address is located in:
  - (i) Canada, Caribbean, South America, or any other region or country not listed in subsections (ii) – (iii) inclusive below: the Governing Law of this Agreement is the laws of the Province of Ontario, Canada and the courts of the city of Toronto, Ontario, Canada shall have exclusive jurisdiction;
  - (ii) United States of America: the Governing Law of this Agreement is the laws of the State of New York and the courts of the county of New York, New York, U.S.A. shall have exclusive jurisdiction; and
  - (iii) Europe (including Greenland), the Russian Federation, Middle East or Africa: the Governing Law of this Agreement is English law and the courts of the city of London, England shall have exclusive jurisdiction.
    
    If there is any uncertainty or disagreement about the location of your primary address, then sub-section (i) shall apply.
    
    The United Nations Convention on Contracts for the International Sale of Goods are hereby excluded. The parties waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement.
    
    You cannot bring any action or claim against us more than one (1) year after the cause of action first arises.
- c. Severability. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
- d. Non-Waiver. Failure by us to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
- e. Entire Agreement. Except as expressly agreed by us and you, this Agreement, the Privacy Policy, the User Content Policy, Apple-Enabled Software Supplement, constitute the entire agreement between you and us with respect to the subject matter, and supersede all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. In the event of any inconsistency or conflict between this Agreement and any other terms presented to you in relation to your Membership, this Agreement will prevail to the extent of such inconsistency or conflict.
- f. Headings. The section headings are provided merely for convenience and shall not be given any legal import.
- g. Survival. All sections of this Agreement that, by their nature, should survive termination will survive termination, including, without limitation, the sections entitled User Content, Compensation, Warranty; Disclaimer, Our Liability, and General.
- h. Third-Party Distribution Channels. Our software may be made available through the Apple App Store, the Google Play Store or other distribution channels (“Distribution Channels”). If you obtain our software through a Distribution Channel, you may be subject to additional terms via the Distribution Channel. This Agreement is between you and us only, and is not with the Distribution Channel. To the extent that you utilize any other third party content, software, products and/or services in connection with your use of our software, services or products, you agree to comply with all applicable terms of any agreement of such third party.
- i. Apple-Enabled Software. Use of software on Apple products. In addition to this Agreement, and notwithstanding anything to the contrary in this Agreement or otherwise in relation to any of our software, services or products, you agree that the terms of the Apple-Enabled Software Supplement shall apply in relation to any of our software that is made available for your use in connection with an Apple-branded products. The Apple-Enabled Software Supplement is located at [www.choosemuse.com/legal](http://www.choosemuse.com/legal).
- j. Force Majeure. Our software, services and products may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. We are not responsible for any delays, delivery failures, or other damages resulting from such problems. Neither of us is liable to the other for any failure or delay in performance which are caused by something that is in the control of third parties or circumstances that are beyond your or our reasonable control (collectively, “Force Majeure”). Force Majeure events shall include epidemic or pandemic; acts of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, labour shortage, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment, software or services (including the internet and telecommunication services) or materials or something else required for the performance of obligations under this Agreement. Notwithstanding the forgoing, under no circumstances will your obligation to pay any amount to us be obviated by an event of Force Majeure.
- k. Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais. If these terms are translated in a language other than English, to the extent of any conflict between the English version and the translated version, the English version will prevail.
CONTACT

Notwithstanding anything to the contrary in this Agreement, but subject to applicable law, notice will be sufficiently given to you if provided by us to you via any email address provided to us or through the Muse Service, or by posting communications on http://www.choosemuse.com .

Addresses for the purpose of giving notice may be set forth on the applicable form of invoice or subscription.

Copies of any notice given by you to us must also be delivered to: Interaxon Inc. Attention Legal Department, Suite 900, 555 Richmond Street West, Toronto, Ontario, Canada M5V 3B1.

A party’s address for notice may be changed by that party providing notice to the other party in accordance with this Section.

If you require support with your Membership, please contact us at http://choosemuse.com/pages/contact .
HEADBAND REPLACEMENT AND UPGRADE POLICY

As part of your Membership, you may be eligible to receive a replacement Muse headband (without the pod) to account for possible wear and tear of the headband’s material and electrodes. We reserve the right to determine, in our sole discretion, your eligibility to receive a replacement headband, which will be based on: (i) the time elapsed since you received the headband; (ii) the condition of your headband; and (iii) other factors that we may rely on in our sole discretion. To determine your eligibility for a replacement headband, we reserve the right to request information from you regarding the usage of the headband, which may include: (i) a description of the headband; (ii) photographs of the headband; and (iii) shipment of the headband to us for a physical inspection.