NEUROSTEER WEBSITE AND PRODUCTS – TERMS OF SERVICE

BY ACCESSING OR USING THIS WEBSITE AND/OR NEUROSTEER’S PRODUCTS, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS IN THEIR ENTIRETY.

THIS WEBSITE AND THE NEUROSTEER PRODUCTS MAY COLLECT AND USE PERSONAL INFORMATION ABOUT YOU AND/OR ANY OTHER USER OF THE PRODUCTS. BY ACCESSING OR USING THIS WEBSITE AND/OR NEUROSTEER’S PRODUCTS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THIS, AND THAT NEUROSTEER WILL OWN SUCH DATA AND MAY USE AND SHARE IT IN CONNECTION WITH ITS NON-PUBLIC PORTAL AND ITS PRODUCTS WITHOUT LIMITATION. SEE PARAGRAPH 9, BELOW, FOR ADDITIONAL PRIVACY, HIPAA, AND GDPR PROVISIONS.

IN ALL CASES HEREIN, ACCESS TO NON-PUBLIC PORTIONS OF THE NEUROSTEER WEBSITE (IN ACCORDANCE WITH THESE TERMS OF SERVICE) IS AVAILABLE AND PERMITTED ONLY IF AND TO THE EXTENT PURCHASED BY OR ON BEHALF OF YOU, AND ACCESS TO NEUROSTEER’S PRODUCTS (IN ACCORDANCE WITH THESE TERMS OF SERVICE) IS AVAILABLE ONLY AS TO PRODUCTS PURCHASED BY OR ON BEHALF OF YOU, IF ANY.

1. LEGAL AGREEMENT: Neurosteer Inc., its affiliates, agents, and employees, and all persons acting on its or their behalf (collectively, “Neurosteer”) provide access to this website (the “Website”) and/or Neurosteer’s Products (as defined below), subject to these terms of service (“Terms”) and any additional written agreement (if any) between you and Neurosteer. The Terms constitute a legal agreement between you and Neurosteer and govern all use of the Website and the Products, including but not limited to all content, information, software, and services relating to the Website and/or the Products. By accessing or using the Website and/or Products, you acknowledge that you have read, understood, and agree to be bound by these Terms in their entirety. Neurosteer may update these Terms at any time, with or without notice to you. Each time you access the Website, you agree to be bound by the Terms then in effect, which will be available for review via a link on the Website’s home page or other conspicuous location. If you do not agree to these Terms, please do not use the Website or the Products, or any content, information, software, or services relating to the Website and/or Products. Neurosteer reserves the right to deny access to the Website or Products to, and/or terminate the account or sub-account of, anyone in its sole discretion, including without limitation anyone who violates these Terms or who, in Neurosteer’s sole judgment, interferes with the ability of others to enjoy the Website or Products, acts maliciously with respect to the Website or Products, infringes the rights of others, violates these Terms, or fails to pay any fees that may be required to keep their account or sub-account current.
   
   
2. NEUROSTEER PORTAL: As used herein, “Neurosteer Portal” means the non-public portion of the Website or other online presence of Neurosteer containing, among other things, an interface with other Products, Neurosteer technology, Neurosteer Data (as defined below) and/or other confidential information, accessible only by Neurosteer and/or by authorized persons with active Neurosteer accounts or sub-accounts by using a username and password. As used herein, “Neurosteer Data” means all measurements and/or other data made, generated, processed, interpreted, concluded, or hypothesized in whole or in part with, using, contained in, and/or resulting from the Website and/or Products (or any portion thereof), including but not limited to EEG data, physiological data, stimulation data, and/or environmental data. Neurosteer Data specifically includes not only the raw, unprocessed measurements and/or other data, but also any generated measurements and/or other data, processed measurements and/or other data, interpreted measurements and/or other data, biomarkers and measurements and/or other data relating to biomarkers, and assessment reports derived from the foregoing.
   
   
3. PRODUCTS: As used herein, “Products” means, individually and collectively, the following interconnected components and materials: (a) the sensing electrodes (the “Sensing Electrodes”), which electronically connect to (b) a sensor front end, which electronically connects to (c) a sensor back end, which transmits a signal to (d) a gateway, which transmits a signal to the cloud for (e) storage, processing and/or interpretation by a Neurosteer server, which displays (f) the interpreted data on (g) the Neurosteer Portal and/or other Neurosteer browser-based dashboard or any other web-enabled display and/or the Neurosteer application running on a local device.
   
   
4. REQUIREMENTS FOR USE OF THE WEBSITE AND PRODUCTS: In order for you to access and use any non-public portions of the Website (if purchased by you or on your behalf), including but not limited to all content, interpreted brain activity data, information, software, and services relating thereto, you must first: (a) have a registered account or sub-account in your name with Neurosteer (an “Account”); (b) agree to these Terms Of Service, which may change from time to time (with each use subject to the then-current Terms Of Service); and (c) obtain, in an authorized manner, a sensor from Neurosteer linked to your Account. Your Account is specific to you and cannot be transferred in any way to any other person or entity without the advance, express, written permission of Neurosteer in its sole discretion. Your Account authorizes you to view the data that was recorded by the sensor linked to your Account for the duration that it is assigned to you. Access to the Website and the Neurosteer Portal is subject to change from time to time by Neurosteer. In order for you to use any Products, such Products must be validly purchased from Neurosteer by you or on your behalf and you must agree to use, and use, such Products only in accordance with these Terms. If you purchase any Website access and/or Products for use by persons other than you, prior to or in connection with providing such Website access or Products to such persons you shall inform such persons of these Terms and that such Website access and Products are only to be used only in accordance with these Terms.
   
   
5. PERMITTED USAGE AND PROHIBITED CONDUCT: You shall use the Website and Products solely for the non-medical research purpose of observing interpreted brain activity as provided by Neurosteer algorithms and/or processing. The Website and Products, and any data and interpretation resulting from their use, are not intended to be used, and must not be used, for any medical purpose or diagnosis, and you shall not use them in any such prohibited manner. You shall not recreate, generate, reverse engineer, translate, disassemble, decompile, decipher, reproduce, map out, unlock, reverse compile, modify, create derivative works, or otherwise attempt to derive source code for any portion of the Website or Products in whole or part, or perform or subject to any kind of data analysis any of the Website or Products in whole or part. You shall not claim any portion or derivation of the Website or Products, in whole or in part, as your own intellectual or other property or seek to obtain any intellectual property or other rights having the effect of blocking or limiting the use by Neurosteer or others of any of the Website or Products in whole or in part. You shall not use the Website or Products, or any information associated therewith, in a manner contrary to or in violation of any applicable international, national, federal, state, or local law, rule, or regulation having the force of law. You shall not use the Website or Products, or any information associated therewith, in any manner that could harm, infect, take over, disable, overburden, or otherwise impair any of Neurosteer’s computer systems, including, but not limited to, the servers, networks, and other components connected to or used for the Neurosteer Portal. You shall not interfere with any other person or entity’s use and enjoyment of the Website or Products. You shall not use the Website or Products, or any information associated therewith, to diminish the value of Neurosteer’s rights in such materials. You shall not disclose to any third party any non-public information obtained or derived from the Neurosteer Portal or the Products. Any Products made available to you by Neurosteer are made available solely for use by you and/or for people under your control or authority, and you are responsible for all uses by others of any Products made available to you and/or uses of the Website through sub-accounts to your Account as though the use was by you directly. You shall not use any non-public portion of the Website, or any Product, the use of which has not been validly purchased from Neurosteer by you or on your behalf.
   
   
6. NEUROSTEER’S COMPLETE OWNERSHIP OF INTELLECTUAL PROPERTY AND DATA: Title to and ownership of the Website, Products, and Neurosteer Data, each component thereof, all copies, enhancements, upgrades, and derivations thereof, all related appearances and designs therein, all related user interfaces and user experiences therein, and all related technical know-how (regardless of the individuals or entities that discover, create, or otherwise generate such components, copies, enhancements, upgrades, and derivations, appearances, designs, user interfaces, user experiences, and/or knowhow), and all rights therein, including all rights in patents, copyrights, trademarks, and trade secrets applicable thereto, belongs to and at all times remains with Neurosteer. Title to and ownership of any and all Neurosteer Data (regardless of the individuals or entities that discover, create, or otherwise generate that data), and any and all Neurosteer Data and/or other data of any kind stored by you or other users on Neurosteer’s servers or other equipment, belongs to and at all times remains with Neurosteer. Nothing in these Terms, nor your use of the Website and/or Products, constitutes a sale or transfer of any intellectual property or other technology relating thereto. Neurosteer has the complete and unlimited right to use any and all Neurosteer Data and/or any other data stored by you or other users on Neurosteer’s servers or other equipment for any and all commercial purposes, including but not limited to research and development of new algorithms or other intellectual property of any kind, which is deemed to be, and will be, Neurosteer’s sole property and with respect to which Neurosteer has no obligation to you of any kind.
   
   
7. NEUROSTEER’S DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY: Neurosteer makes no warranty, representation or guarantee regarding the suitability of the Website and/or Products for any particular purpose, nor does Neurosteer assume any liability whatsoever arising out of the use of the Website and/or Products. Neurosteer is not in any way providing or offering any medical, legal, or other advice in connection with making available the Website and/or Products, or otherwise. Neurosteer does not claim to have obtained any or all applicable regulatory approval(s) for the sale of medical products and/or devices. In particular, you hereby acknowledge that Neurosteer has not obtained CE marking, or FDA, CFDA, or any other regulatory approval or accreditation, or ISO, GMP, or any other approval or accreditation for the Website or Products in whole or in part. THE WEBSITE AND PRODUCTS ARE PROVIDED “AS IS” AND NEUROSTEER DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS NOT ACTUALLY KNOWN TO NEUROSTEER, INCLUDING INTELLECTUAL PROPERTY RIGHTS NOT ACTUALLY KNOWN TO NEUROSTEER. NO MEDICAL CONCLUSIONS WHATSOEVER CAN BE DRAWN FROM YOUR USE OF THE WEBSITE AND/OR PRODUCTS AND/OR ANY PORTION OF THEM, OR FROM ANY DATA OBTAINED FROM OR GENERATED BY THEM. You hereby acknowledge that your use of the Website and Products is voluntary and at your own risk, and that Neurosteer cannot be held responsible or liable for any consequences (including, but not limited to, health problems, discomfort, personal injury or death) to you or any third party that result from your use of (or inability to use) the Website and/or Products, including without limitation where such consequences result from technical, internet or telecommunications problems (including without limitation slow connections, internet traffic congestion, overload of Neurosteer’s or third party servers, or service outages, electrical malfunction, and/or lightning). IN NO EVENT SHALL NEUROSTEER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF USE, DATA, GOODWILL, BUSINESS, PROFITS, USE OF MONEY, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, FINES OR OTHER PENALTIES FOR NONCOMPLIANCE ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE WEBSITE AND/OR PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, CONFIDENTIAL INFORMATION, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT NEUROSTEER (AND ITS LICENSORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. Neurosteer does not have any obligation to store any recorded data for any period of time, or to back it up or otherwise protect it or try to recover it in case of loss. The Website and Products, which include the Neurosteer Portal, might not be available for periods of time due to circumstances beyond Neurosteer’s reasonable control or for commercially reasonable reasons within Neurosteer’s control (including but not limited to scheduled maintenance). Neurosteer has the right, in its sole discretion and for any reason, to block access to any or all data at any time. Neurosteer’s total cumulative liability arising from all causes of action and under all theories of liability in connection with or arising out of your use of the Website and/or Products is limited to and cannot exceed the total amount you have at that time paid to Neurosteer in connection with the Website, an amount that you acknowledge is reasonable taking into account all circumstances, or replacement of any Products provided to you by Neurosteer that materially varied from manufacturing specifications at the time they were provided by Neurosteer (in the event such variance can reasonably be shown and that you promptly provided Neurosteer notice of such variance).
   
   
8. INDEMNIFICATION: You agree to indemnify, defend, and hold Neurosteer harmless from and against all claims, losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from any violation of these Terms by you or anyone acting on your behalf or for your benefit, and/or from the use of the Website or Products by you or anyone acting on your behalf (unless in such case such claims, losses, expenses, damages, and costs result from the gross negligence of Neurosteer).
   
   
9. PRIVACY, HIPAA, and GDPR: Neurosteer respects the privacy of its customers. Privacy matters relating to your use of the Website and Products are covered by the then-current privacy policy linked on the Neurosteer Portal, as updated from time to time, which is incorporated herein in its entirety by reference. In the course of your use of the Website and/or Products, and/or other interactions with Neurosteer, you may receive access to Personal Health Information relating to third-party clients or patients. As used herein, the term “Personal Health Information” (“PHI”) refers to medical records, billing and financial records, any individually identifiable health information, raw and processed medical data (whether or not individually identifiable), or ID and account numbers and names, PINs, and passwords, and the term “Proprietary Information” includes such PHI. PHI is also protected by the Health Insurance Portability and Accountability Act (“HIPAA”). HIPAA permits access to PHI on a “need to know” basis. Therefore, unless authorization has been granted, any intentional accessing of PHI or other Proprietary Information, or circumvention of PHI security protocols, is prohibited, and you may not make use of or disclose PHI in violation of HIPAA. Your obligations with respect to PHI and other Proprietary Information shall continue in perpetuity. Neurosteer is subject to the European Union’s General Data Privacy Regulation [Regulation (EU) 2016/679, as may be updated and amended from time to time] (the “GDPR”) when Neurosteer is a “controller” or “processor” of “personal data” from an individual “data subject” located in the European Union, as those terms are defined in the GDPR. You acknowledge and agree that you are acting as a “processor” of “personal data” for Neurosteer under this Agreement and that all applicable requirements of the GDPR are incorporated by reference as material terms of this Agreement. You represent and warrant that: (a) you are aware of, understand, and shall comply with your compliance obligations as a “processor” under GDPR; (b) IF YOU WILL BE COLLECTING ANY PERSONAL DATA OF ANY OTHER PERSON, YOU HAVE ADOPTED AND SHALL COMPLY WITH A GDPR COMPLIANCE POLICY/PROGRAM, A COPY OF WHICH HAS BEEN PROVIDED TO NEUROSTEER, THAT FULLY COMPLIES WITH YOUR GDPR OBLIGATIONS, INCLUDING BUT NOT LIMITED TO OBTAINING ADVANCE, WRITTEN, EXPRESS, GDPR-COMPLIANT INFORMED CONSENT FROM ANY PERSON FROM WHOM YOU PLAN TO, OR DO, OBTAIN PERSONAL DATA, INCLUDING ADVANCE, WRITTEN, EXPRESS, GDPR-COMPLIANT INFORMED CONSENT THAT SUCH PERSONAL DATA CAN BE DISCLOSED TO AND OWNED BY NEUROSTEER AND USED AND SHARED WITHOUT LIMITATION IN CONNECTION WITH THE NEUROSTEER PORTAL AND PRODUCTS; (c) you will process “personal data” only in accordance with Neurosteer’s instructions; and (d) with regard to its obligations under this Agreement, you shall comply with all applicable requirements of the GDPR to the same extent as required for Neurosteer. Additionally, you shall indemnify, defend, and hold Neurosteer, its affiliated entities, and its and their respective officers, directors, agents and employees harmless from and against any claims, demands, suits, damages, penalties, fines, or costs arising from any violation of GDPR by you. Your obligations with respect to personal data as that term is defined in the GDPR shall continue in perpetuity.
   
   
10. GOVERNING LAW AND JURISDICTION; ATTORNEY’S FEES: These Terms are governed by and to be construed in accordance with the laws of the State of California. Any dispute, claim, or controversy arising out of or relating to these Terms or the violation, application, enforcement, interpretation, or validity thereof, and/or the use of the Website, Products, and/or data generated or stored therefrom, including but not limited to the determination of the scope, applicability, or right to arbitrate, will be resolved by arbitration in Los Angeles, California before a single arbitrator. The arbitration will be administered by JAMS (or its successor) pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having jurisdiction. This clause does not in any way preclude the seeking of provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The prevailing party in the arbitration will be awarded reimbursement of its reasonable expenses and attorney’s fees incurred in connection with the arbitration.
    
    
11. SEVERABILITY: If any provision of these Terms is deemed unlawful, void, or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability.
    
    
12. OPPORTUNITY FOR REVIEW BY COUNSEL: You acknowledge that you had unlimited opportunity to have these Terms reviewed by counsel of your choosing prior to using the Website or the Products, and to ask for any additional information (if any) you believe might be useful, and that you are wholly voluntarily undertaking and accepting the Terms in their entirety. If you have any questions about these Terms, or about the content, information, or services on the Website or the Products, you may contact Neurosteer using the contact information provided through the Website.
    
    
13. ENTIRE AGREEMENT: These Terms (together with any written, mutually signed purchase agreement, proposal, confidentiality agreement, license agreement, or similar agreement between you and Neurosteer) constitute the entire agreement between you and Neurosteer with respect to the subject matter hereof, and supersede and extinguish any and all previous discussions, communications, and understandings between them relating to that subject matter. Each party acknowledges that no representations or statements not set forth herein were relied upon by that party in entering into these Terms. These Terms cannot be modified except (a) by a writing signed by both parties expressly referring to and modifying such Terms, or (b) in accordance with Paragraph 1 above.