THIS AGREEMENT PRESCRIBES THE TERMS AND CONDITIONS ON WHICH YOU MAY USE THE EXECUTABLE SOFTWARE PROGRAMS AND ASSOCIATED DOCUMENTATION, CONTENT AND FILES ACCOMPANYING THIS AGREEMENT (COLLECTIVELY, THE "SOFTWARE").

READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. BY DOING SO, YOU AND YOUR COMPANY (COLLECTIVELY, THE "LICENSEE") ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT. IF YOU OR YOUR COMPANY ARE NOT WILLING TO BE BOUND BY THIS AGREEMENT, DO NOT USE THE SOFTWARE.

VARIOUS PATENTS, COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY RIGHTS PROTECT THE SOFTWARE. THIS AGREEMENT IS A LICENSE AGREEMENT THAT GIVES LICENSEE LIMITED RIGHTS TO USE THE SOFTWARE AND IS NOT AN AGREEMENT FOR SALE OR FOR TRANSFER OF TITLE. NEUROSCRIPT, LLC. RESERVES ALL RIGHTS NOT EXPRESSLY GRANTED BY THIS AGREEMENT.

 

1.1      NeuroScript's software and hardware products, together with required or recommended 3rd-party hardware or software, are only meant for research and development. NeuroScript, LLC, is making NO MEDICAL-USE CLAIMS for any of its products. NeuroScript's products are not medical devices and cannot be used in the USA and other countries, where similar laws apply, as an "instrument, apparatus, implement, machine, or other similar or related article, including any component, part, or accessory, which is intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease or intended to affect the structure or any function of the body [Section 201(h) of the Federal Food, Drug and Cosmetic Act (the Act)].

1.2      On the terms and conditions of this Agreement, NeuroScript, LLC. ("Licensor") grants Licensee a nonexclusive, nontransferable license to use the Software only in encrypted, machine-readable object code form, only on one computer at any time.

 

2.1      Ownership. Licensee acknowledges that the Software, all enhancements, corrections and modifications to the Software (regardless whether made by Licensor, Licensor's suppliers, Licensee or anyone else) and all patents, copyrights, trade secrets, trademarks and other intellectual property rights protecting or pertaining to any aspect of the Software (or any enhancements, corrections or modifications) are and shall remain the sole and exclusive property of Licensor and, where applicable, Licensor' suppliers. This Agreement does not convey title or ownership to Licensee, but instead gives Licensee only the limited right to use the software set forth in Section 1.

2.2      Use Restrictions. Except as set forth in Section 1, Licensee has no right to use, make, sublicense, modify, distribute or copy originals or copies of the Software or permit anyone else to do so.

2.3      Proprietary Notices and Trademark. Licensee shall not remove any patent, copyright or trademark or other intellectual property notices that may appear on any part of the Software.

2.4      Trade Secrets. Licensee acknowledges that the Software, in its source code form, contains valuable trade secrets belonging to Licensor. Licensee may not reverse engineer, decompile, disassemble or otherwise translate any software. Licensee may not copy any concepts, ideas, or techniques demonstrated by the use of the Software.

2.5      Remedies. Licensee acknowledges that money damages may not be an adequate remedy for any breach or violation of any requirement set forth in this Section 2 and that any such breach or violation may leave Licensor without an adequate remedy at law. Licensee therefore agrees that, in addition to any other remedies at law, in equity or under this Agreement, Licensor shall be entitled to obtain injunctive relief from a court of competent jurisdiction to restrain any such breach or violation.

 

Licensor warrants that it owns or has the contractual right to license the Software to Licensee. Licensor also warrants that, in the form delivered to Licensee by Licensor, the Software shall perform substantially in accordance with the documentation for sixy days after Licensor delivers the Software/Trial to Licensee. Licensor' warranty is conditioned upon Licensee's use of the Software in accordance with the documentation and other instructions provided by Licensor and shall be null and void if Licensee alters or modifies the Software without Licensor' prior written approval, does not use the Software in accordance with the documentation and Licensor' instructions, or if the Licensed Programs fail because of any accident, abuse or misapplication. As Licensor's sole liability and Licensee's sole remedy respecting the Software's nonconformance with the limited warranty set forth in this Section 3, Licensor may at its option use reasonable efforts to correct the Software to make it conform with the specifications set forth in the documentation, replace the Software or return all license fees paid for the use of the Software upon Licensee's return of all Software and documentation. LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL OPERATE PROPERLY WITH ALL COMPUTER HARDWARE OR ALL COMPUTER SOFTWARE, THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.

 

NO OTHER WARRANTIES EXCEPT AS SET FORTH IN SECTION 3, LICENSOR IS PROVIDING THE SOFTWARE AND THE DOCUMENTATION "AS IS," AND LICENSOR SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE OR DOCUMENTATION INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT LICENSOR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) OR CONDITIONS OF TITLE OR NONINFRINGEMENT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. LICENSOR ALSO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE.

 

NEITHER LICENSOR NOR ANY OF ITS SUPPLIERS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, OR FOR ANY LOSS OF PROFITS EVEN IF LICENSOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

 

Some states' laws do not allow the disclaimer of limited warranties or the exclusion or limitation of certain damages. To the extent that those laws apply to this Agreement, the disclaimers and limitations set forth in Sections 4 and 5 will not apply. The limited warranty set forth in Section 3 grants specific legal rights. Licensee may have other rights which vary from state to state.

 

This Agreement will immediately and automatically terminate without notice upon Licensee's failure to comply with any of its terms or conditions. Upon termination, Licensee promptly shall destroy all copies of the Software and documentation in its possession and shall certify their destruction to Licensor' reasonable satisfaction. Licensor' rights and Licensee's obligations under Section 3 and all warranty disclaimers, limitations of liability and limitations of remedies set forth in Sections 5 and 6 shall survive any termination of this Agreement.

 

Licensee may transfer its rights under this Agreement as long as (a) Licensee transfers this Agreement and all copies of the Software and accompanying documentation; (b) Licensee does not retain any copies of the Software or documentation; and (c) the recipient agrees to all terms of this Agreement. All transfers must include the most recent version of the Software and all previous versions and releases.

 

The laws of the State of Arizona will govern this Agreement and its interpretation, and Licensee consents to the jurisdiction and venue of the Arizona Superior Court in Maricopa County, Arizona or the United States District Court for the District of Arizona as the exclusive forum for all disputes concerning this Agreement or the Software. The prevailing party in any action arising from this Agreement may recover its reasonable attorneys' fees and costs from the losing party. The invalidity or unenforceability of any provision in this Agreement shall not affect the validity or enforceability of the rest of this Agreement. Either party's failure to enforce any right granted by this Agreement shall not be deemed a waiver of that party's right to enforce any other right or to take action in response to any other breach.