NEUROCATCH END USER LICENSE AGREEMENT

NeuroCatch® Incorporated

Last updated: March 21, 2023

Please review this end user license agreement (this “Agreement”) carefully. This Agreement constitutes a legal agreement between You (either an individual or single entity, such as a company) (“You”) and NeuroCatch Inc. (“NeuroCatch”). By clicking on the applicable “I agree” button, activating or otherwise using the software loaded or pre-installed in devices, equipment, or products leased by or purchased from NeuroCatch (the “NeuroCatch Software”), You do so with the intent to be bound by this Agreement. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, You have no right to use the NeuroCatch Software and You should return the leased/purchased product to NeuroCatch or the applicable reseller or distributor from whom You obtained the product.
  1. License Uses and Restrictions. Subject to the terms and conditions of this Agreement, NeuroCatch grants to You a personal, revocable, limited, non-exclusive, non-transferable (except as otherwise permitted) license to use the NeuroCatch Software in object code format in association with NeuroCatch products. No right to copy any NeuroCatch Software is granted under this Agreement. This Agreement does not grant You any other rights, and You have no rights to use any aspect of the NeuroCatch Software. You may not distribute or make the NeuroCatch Software in any manner, including making the NeuroCatch Software available over a network where it could be accessed, downloaded, or used by others. You will not modify, rent, lease, loan, sell, make available, re-sell, offer for re-sale, distribute, sublicense, or create derivative works based on, the NeuroCatch Software, in any manner, and You will not exploit the NeuroCatch Software in any unauthorized manner whatsoever. You will only use the NeuroCatch Software and any portions thereof in accordance with this Agreement and all applicable laws and regulation. NeuroCatch may make available updates and upgrades to the NeuroCatch Software (the “Software Updates”) from time to time solely at NeuroCatch’s option. The Software Updates may come with its own terms and conditions, provided however that if it does not, You may only use and install such Software Updates under the terms and conditions of this Agreement.
  2. Confidentiality. You acknowledge and agree that the NeuroCatch Software constitute confidential information and trade secrets of NeuroCatch or its licensors. This Agreement gives You no right to any source code form of the NeuroCatch Software, and You will not, directly or indirectly, copy (except as expressly permitted by this Agreement), reverse-compile or decompile, analyze, reverse-engineer, reverse-assemble or disassemble, unlock or otherwise attempt to discover the source code or underlying algorithms, or decrypt, any of the NeuroCatch Software or attempt to do any of the foregoing in relation to the NeuroCatch Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by licensing terms governing use of open-sourced components included with the NeuroCatch Software).
  3. Intellectual Property Ownership. NeuroCatch’s name, trademarks, logos, and graphics used in connection with the NeuroCatch Software are trademarks, whether registered or unregistered, of NeuroCatch or its licensors. Other trademarks, graphics, and logos used in connection with the NeuroCatch Software may be the trademarks of their respective owners. NeuroCatch grants You no rights or license with respect to any of its trademarks and any use of such trademarks. The NeuroCatch Software contains copyright protected materials, trade-secrets, and other proprietary materials. You will not, and will not attempt to, at any time, before or after termination of this Agreement, remove any proprietary rights or copyright notices or identification which indicates ownership of the NeuroCatch Software by NeuroCatch and its licensors. NeuroCatch and its licensors retain exclusive ownership in all right, title, and interest, including, without limitation, all intellectual property rights, in and to the NeuroCatch Software, and NeuroCatch reserve all rights not expressly granted to You under this Agreement. You agree that nothing in this Agreement will adversely affect any rights and recourse to any remedies, including, without limitation, to injunctive relief, that NeuroCatch may have under any applicable laws relating to the protection of NeuroCatch's intellectual property or other proprietary rights.
  4. Term. This Agreement will be effective upon Your agreement to be bound by the terms and conditions of this Agreement and will continue in effect until the earlier of: (i) for any leased NeuroCatch products, You cease to lease NeuroCatch products containing the NeuroCatch Software; (ii), for any purchased NeuroCatch products, the useful life of the purchased NeuroCatch products has ended; and (iii) otherwise terminated in accordance with the terms and conditions of this Agreement.
  5. Termination. If You breach this Agreement, NeuroCatch may terminate this Agreement with respect to the NeuroCatch Software that You have licensed pursuant to the terms and conditions of this Agreement upon notice. NeuroCatch may also terminate this Agreement, without any liability to You, if any law, regulations, orders, or legal requirements prohibits NeuroCatch’s provision or licensing of the NeuroCatch Software to You. Provisions in this Agreement, which by their nature extend beyond termination of this Agreement, will remain in effect until fulfilled. If You breach, misappropriate or otherwise infringe NeuroCatch’s confidential information, intellectual property or other proprietary rights (collectively, “IP Breach”) and a court in Your country is unable or unwilling to grant an injunctive order to stop such IP Breach, You acknowledge that NeuroCatch will have the right to receive liquidated damages from You in the amount of US $5,000 per day during the period of such IP Breach.
  6. Indemnification. You will indemnify, hold harmless, and defend NeuroCatch, its licensors, and their respective employees, agents, and distributors against any and all claims, proceedings, demands and costs resulting from or in any way connected with Your use of the NeuroCatch Software and/or the and arising of Your breach of this Agreement.
  7. Disclaimer of Warranties.
    • SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR DISCLAIMER OF WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS OR THE LIMITATION OF REMEDIES IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THESE EXCLUSIONS MAY NOT APPLY TO YOU.
    • TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEUROCATCH AND ITS LICENSORS HEREBY DISCLAIMS AND EXCLUDES ALL WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED.
    • To the extent any implied warranties, conditions, endorsements, guarantees, or representations relating to the NeuroCatch Software cannot be excluded but can be limited under applicable laws, NeuroCatch hereby limits such implied warranties, conditions, endorsements, guarantees, or representations to ninety (90) days from the date: (i) You first installed the NeuroCatch Software; (ii) for any NeuroCatch products You purchased with the NeuroCatch Software pre-installed, the date of such purchase if the NeuroCatch Software is preinstalled on such products; or (ii) for any NeuroCatch products You leased with the NeuroCatch Software pre-installed, the date You leased NeuroCatch.
  8. Limitation of Liability.
    • SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL, INDIRECT OR OTHER DAMAGES IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THE LIMITATIONS OR EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU.
    • TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL NEUROCATCH, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, PRINCIPALS, SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING FROM YOUR USE OF ANY OF THE NEUROCATCH SOFTWARE, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE NEUROCATCH SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, OR CONFIDENTIAL OR OTHER INFORMATION, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR LOSS OF PRIVACY ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE NEUROCATCH SOFTWARE OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE NEUROCATCH SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) AND EVEN IF NEUROCATCH OR ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    • In no event will NeuroCatch's total liability to You for all damages UNDER THiS Agreement exceed the amount of ONE hundred dollars (CAD $100).
    • The foregoing limitations in SECtion 8(B) to 8(c) will apply even if the above stated remedy fails of its essential purpose.
    • Nothing in this Section 8 limits NeuroCatch’s liability to You in the event of: (i) death or personal injury to You; or (ii) any intentional fraudulent act, intentional fraudulent omission, or gross negligence of NeuroCatch.
  9. Export Control. You may not use or otherwise export or re-export the NeuroCatch Software. You represent and warrant that You are not located in any Canadian or U.S. government embargoed, restricted, or prohibited countries or in any country on Canada’s Area Control List.
  10. Entire Agreement & English Language. This Agreement constitutes the entire agreement between You and NeuroCatch relating to the NeuroCatch Software and supersedes all prior or contemporaneous understandings regarding such subject matter. You may also be subject to additional terms and conditions that may apply when You use affiliated services, third-party content, or third-party software relating to or connected with the NeuroCatch Software.
  11. Amendment. This Agreement may be amended at any time upon mutual agreement by the parties. To the maximum extent permitted under applicable law, NeuroCatch further reserves the right to make changes to this Agreement on a prospective basis, either to reflect changes in or required by law (including, without limitation, changes to ensure the enforceability of this Agreement) or changes in business practices, by providing You with reasonable notice of the change either electronically or by posting notice of the change at NeuroCatch’s website and You should regularly review that website for changes. If You continue to use the NeuroCatch Software more than sixty (60) days after notice of the change has been given, then You will be deemed to have accepted this change.
  12. Severability. To the extent any section, clause, provision or sentence or part thereof ("Part") of this Agreement is determined to be illegal, invalid or unenforceable by a competent authority in any jurisdiction, then such determination of that Part will not affect: (i) the legality, validity or enforceability of the remaining Parts of this Agreement; or (ii) the legality, validity or enforceability of that Part in any other jurisdiction, and that Part will be limited if possible and only thereafter severed, if necessary, to the extent required to render the Agreement valid and enforceable.
  13. Waiver. The failure by NeuroCatch to insist on strict compliance with any provision of this Agreement will not be deemed to be a waiver of such provision, and a waiver of any provision of this Agreement at any one time or times will not be deemed to be a waiver for any other time. The failure of NeuroCatch to assert its rights in a timely fashion for any of its rights or remedies under the provisions of this Agreement will not be interpreted as a novation or a waiver of any subsequent or continuing breach and will not serve to modify, alter or restrict the right of NeuroCatch to assert any rights at any time thereafter.
  14. Enurement. These terms and conditions and the rights and obligations set forth in this Agreement will be binding upon You and enure to the benefit of NeuroCatch and its successors and assigns.
  15. Governing Law. This Agreement will be governed by and interpreted in accordance with the provincial and federal laws (procedural and substantive) applicable in the province of British Columbia, Canada without regard to the conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to this Agreement or to the transactions contemplated by this Agreement. Your use of the NeuroCatch Software may also be subject to other local, state, national or international laws.
  16. Dispute Resolution. Any controversy, question, claim or other dispute arising out of or relating to this Agreement must be conclusively settled by submission to arbitration (the “Arbitration”). If You are domiciled in Canada, the Arbitration will be conducted in accordance with the rules of arbitration of the British Columbia Arbitration Act. The language of the Arbitration shall be English.
  17. Injunctive Relief. Notwithstanding anything else in this Agreement and without prejudice to the right of the parties to submit the matter to arbitration in accordance with this Agreement, NeuroCatch (in its sole discretion) will have the right to seek injunctive relief or equitable relief against You, and the parties agree that if NeuroCatch seeks injunctive or equitable relief in the courts of the province of British Columbia, Canada then the courts of the province of British Columbia, Canada will have jurisdiction to resolve such injunctive or equitable proceedings.
  18. Assignment. You may not assign Your rights, duties or obligations under this Agreement, without the prior written consent of NeuroCatch.