API License Agreement
1. Some Definitions for this Agreement
1.1. "Additional Terms" means the features, registration process, license fee, license tiers, License Seats, beta testing guidelines, and application release guidelines, and other terms and conditions applicable to Your API license, as set forth on the EMOTIV website and/or the attached [Exhibit A]{.ul}, which are incorporated herein by reference.
1.2. "API" means the EMOTIV application programming interface software which gives You access to mental commands, low resolution performance metrics, frequency bands, facial expressions and motion data, raw EEG data, or high resolution performance metrics data streams.
1.3. "API License Agreement" means this agreement, which contains the terms under which the API is licensed to You and under which You may develop Third Party Software to use with an EMOTIV headset.
1.4. "App ID" means the unique identifier for Your software application which is created when developing a new software application.
1.5. "Client ID" means the unique identifier for Your software application, similar to the function of a username, which is automatically generated by EMOTIV for each version of Your software application. A single App ID will have multiple Client IDs for a software application with multiple versions.
1.6. "Client Secret" means the unique identifier for Your software application, similar to the function of a password, which is automatically generated by EMOTIV for each version of Your software application.
1.7. "Commercial" means any organization which does not fall within the definition of Noncommercial.
1.8. "Distribution License Agreement" means a separate license agreement executed between You and EMOTIV which grants You the right to distribute Third Party Software, or any product or service incorporating the Third Party Software, outside of Your organization or in excess of Your number of License Seats.
1.9. "EMOTIV" means EMOTIV, Inc., a Delaware corporation, with its principal place of business at 490 Post Street, San Francisco, CA 94102, USA.
1.10. "Emotiv ID" means the unique identifier You must create in order to use any EMOTIV services.
1.11. "EmotivPRO" means software licensed from EMOTIV for a license fee, which displays, records and plays back EEG data.
1.12. "End User Data" means the EEG data and EEG derivative data an end user generates by using software linked to an EMOTIV headset in accordance with the terms of the EULA.
1.13. "EULA" means Your EMOTIV End User License Agreement, which is incorporated into this API License Agreement. Your EULA and any corresponding license fee will depend on the type of licensing arrangement with EMOTIV that You select.
1.14. "License Seat" means the number of different computer devices You may install the API on for development purposes with respect to Your API license.
1.15. "Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.16. "Noncommercial" means a school, university or college, a non-profit research institution or entity, or a governmental agency not engaged in any for-profit activities.
1.17. "Premium API" means the EMOTIV application programming interface software which gives You access to raw EEG data or high resolution performance metrics data streams.
1.18. "Third Party Software" means software developed by You using the API, which relies on an End User Data to function, including but not limited to enterprise, consumer, free and open source software applications.
1.19. "You" or "Your" means the individual accepting this API License Agreement or the company or other legal entity for which such individual is accepting this API License Agreement in accordance with the requirements of Section 3.4, below.
2. API License Options
2.1. If You wish to develop Third Party Software for EMOTIV headsets, You will need to generate an App ID, which may be done for free on the EMOTIV website. The App ID may be used with Your Emotiv ID to use such Third Party Software for up to three (3) License Seats, and will provide You with access to mental commands, low resolution performance metrics, frequency bands, facial expressions and motion data.
2.2. If You wish to develop Third Party Software for EMOTIV headsets, where such Third Party Software will access raw EEG data or high resolution performance metrics, You must have or obtain a license for EmotivPRO and you must apply and obtain a license for Premium API.
2.3. In the event of a conflict between the terms of this API License Agreement and the terms of any other agreement You have with EMOTIV, the terms of this API License Agreement will control over the conflicting terms of the other agreement.
3. Accepting this API License Agreement
3.1. In order to use the API, You must first accept this API License Agreement and pay the charge, if any, applicable to Your API license. You do not have to accept this API License Agreement in order to use an EMOTIV headset, but You may not use the API until You have accepted this API License Agreement and made any payment applicable to Your API license.
3.2. By signing below, You accept and agree to the terms of this API License Agreement, which creates a legally binding contract between You and EMOTIV.
3.3. You may not accept the API License Agreement and You may not use the API if You are a person barred from receiving the API under the laws of the United States or other relevant countries, including the country in which You are resident or in which You use the API.
3.4. If You are agreeing to be bound by this API License Agreement on behalf of a company or other legal entity, for example Your employer, You represent and warrant that You have full legal authority to bind that company or other legal entity to this API License Agreement. If You do not have that authority, You may not accept the API License Agreement or use the API on behalf of that company or other legal entity.
3.5. The API is not intended for children under the age of 16. By accepting this API License Agreement, You represent and warrant to EMOTIV that You are at least 16 years of age.
4. Your API License from EMOTIV
4.1. Subject to the terms and conditions of this API License Agreement, EMOTIV grants You a limited, worldwide, nonexclusive, non-transferrable, and non-assignable license to use the API, at Your cost and expense during the term of this API License Agreement, solely to: (a) develop Third Party Software; (b) if Your organization is Noncommercial, use such Third Party Software internally for up to three (3) License Seats; (c) if Your organization is Commercial, use such Third Party Software internally for one (1) License Seat; and (d) if You are a student at a school, university or college, use such Third Party Software personally for one (1) License Seat. You hereby accept such license.
4.2. You may not use the API for any other purpose, including to market, sell or distribute the Third Party Software or any product or service incorporating the Third Party Software, unless You comply with the distribution requirements set forth in Sections 6.1-6.3, below.
4.3. The terms of this API License Agreement include any Additional Terms applicable to Your API license, as well as EMOTIV's Privacy Policy and Terms of Use.
4.4. EMOTIV or third parties own all legal right, title, and interest in and to the API, including any rights under patent law, copyright law, trade secret law, trademark law, and any other proprietary rights that subsist in the API. EMOTIV reserves all rights not expressly granted to You.
4.5. You may not take any actions that may cause or result in the fragmentation of the API, including but not limited to distributing, participating in the creation of, or promoting in any way a software development kit derived from the API.
4.6. Nothing in this API License Agreement gives You the right to use any of EMOTIV's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
4.7. EMOTIV's products, services and software, including the API, are protected by several patents, including those described at https://www.emotiv.com/patents/.
5. Your Use of the API
5.1. EMOTIV obtains no ownership interest from You under this API License Agreement in or to any Third Party Software You develop using the API.
5.2. You may use the API and develop Third Party Software only for purposes that are permitted by any applicable law, regulation, or generally accepted practices or guidelines in the relevant jurisdictions, including laws regarding the export of data or software to and from the United States or other relevant countries.
5.3. If You use the API to develop Third Party Software for end users, You must protect the privacy and legal rights of those users. If the users provide You with user names, passwords, or other login information or personal information, You must make the users aware that the information will be available to Your Third Party Software, and You must provide legally adequate privacy notice and protection for those users and obtain their informed written consent. If Your Third Party Software stores personal or sensitive information provided by users, it must do so securely. If the user provides Your Third Party Software with EMOTIV account information, Your Third Party Software may only use that information to access the user\'s EMOTIV account when, and for the limited purposes for which, the user has given You informed written consent to do so.
5.4. You are solely responsible for any data, content, or resources that You create, transmit, or display through Your use of the API, and for the consequences of Your actions by doing so, including any loss or damage EMOTIV may suffer. EMOTIV has no responsibility to You or to any third party for any data, content, or resources that You create, transmit, or display through Your use of the API, or for the consequences of Your actions by doing so.
5.5. When You use the API to develop Third Party Software, You will need to mark the beginning and end of each baseline recording, as well as any other points of interest You and EMOTIV mutually agree upon in writing.
5.6. EMOTIV will permit Your Third Party Software to access certain End User Data, provided that the end user has authorized Your Third Party Software to receive the End User Data and Your current EMOTIV license permits such access, as determined by EMOTIV in its discretion. Your Third Party Software may allow You to provide EMOTIV with End User Data and other personal and non-personal information of third parties, such as that of Your employees, friends and research or study participants. You represent and warrant to EMOTIV that You have obtained the informed written consent of such third parties to: (a) provide this third party information to EMOTIV; and (b) allow EMOTIV to use and disclose this third party information to You and others in the same manner as Your information under this API License Agreement and EMOTIV's Privacy Policy. You further represent and warrant to EMOTIV that You provide appropriate safeguards and enforceable rights and effective legal remedies for such third parties who have provided You or EMOTIV with personal information.
6. Distribution of Third Party Software
6.1 If You wish to distribute Third Party Software, or any product or service incorporating the Third Party Software, outside of Your organization, You must obtain a Distribution License Agreement from EMOTIV.
6.2 If the Third Party Software will be distributed outside of Your organization as a free or open source software application, You must contact EMOTIV customer service to be added to EMOTIV's free/open source license list. If the Third Party Software is accepted by EMOTIV, any person or organization with an active API License Agreement will be able to use it to access raw EEG data on a fixed number of computer devices at no further charge by EMOTIV to You.
6.3 If the Third Party Software will be distributed outside of Your organization or in excess of Your number of License Seats, but not as a free or open source software application, You must contact EMOTIV business development and obtain a Distribution License Agreement. The Distribution License Agreement will contain the terms and conditions, including license fees, applicable to Your distribution of the Third Party Software.
7. Your EMOTIV Developer Credentials
7.1. You are responsible for maintaining the confidentiality of any developer credentials that EMOTIV may issue to You or that You may choose Yourself, and You will be solely responsible for all Third Party Software developed under Your developer credentials.
7.2. You may disclose Your App ID and Client ID to others if you wish. You are not permitted to disclose Your Client Secret to others.
8. API Support, Modifications, and Discontinuance
8.1. EMOTIV, in its sole discretion, may elect to provide You with support or modifications for the API, and may terminate support at any time without notice or liability to You.
8.2. Without prior notice or liability to You, EMOTIV may change, suspend, or discontinue the API or any aspect of the API at any time at EMOTIV's sole discretion, and future versions of the API may be incompatible with Third Party Software developed on previous versions of the API. EMOTIV may also impose limits on certain features and services or restrict Your access to parts or all of the API without notice or liability.
9. Information that May Be Collected by EMOTIV
9.1. In order to innovate and improve the API, EMOTIV may collect certain usage statistics from the software, including but not limited to a unique identifier, associated IP address, version number of the software, and information on which tools and services in the API are being used and how they are being used.
9.2. EMOTIV will examine the data collected in the aggregate to improve the API and will maintain the data in accordance with EMOTIV's Privacy Policy.
9.3. You grant to EMOTIV a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the API any suggestion, enhancement request, recommendation, correction or other feedback provided by You relating to the API.
10. Your Additional Responsibilities
10.1. You will: (a) use commercially reasonable efforts to prevent unauthorized access to or use of the API, other EMOTIV software and End User Data, and notify EMOTIV promptly of any such unauthorized access or use; (b) not share Your login credentials with any third party; and (c) be responsible for maintaining a sufficient number of License Seats to allow end users to use Your Third Party Software without interruption.
10.2. You will not: (a) sell, resell, license, sublicense, distribute, rent or lease the API; (b) use the API to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or publicity rights; (c) use the API to store or transmit Malicious Code; (d) interfere with or disrupt the integrity or performance of the API or third-party data contained therein; (e) attempt to gain unauthorized access to the API or other EMOTIV software or its related systems or networks; (f) permit direct or indirect access to or use of the API or other EMOTIV software in a way that circumvents a contractual restriction; (g) access the API in order to build a competitive product or service or to monitor the availability, performance or functionality of the API or other EMOTIV software, or for any other benchmarking or competitive purposes; or (h) reverse engineer the API or other EMOTIV software.
10.3. You shall obtain and maintain standard product liability insurance during the term of this API License Agreement with limits no less than One Million Dollars (\$1,000,000) combined single limit and a deductible not to exceed Ten Thousand Dollars (\$10,000.00) per occurrence. Such policy shall name EMOTIV as an additional insured and shall provide for thirty (30) days' prior written notice to EMOTIV in the event of any modification or termination thereof. You shall provide EMOTIV with a certificate of insurance evidencing such coverage upon EMOTIV's request.
11. Using EMOTIV APIs
11.1. Intellectual property rights owned by EMOTIV or by other parties may protect data You retrieve from EMOTIV using the API. Your use of any such API may be subject to additional terms and conditions. You may not modify, rent, lease, loan, sell, distribute or create derivative works based on such data unless allowed by the relevant terms and conditions.
11.2. Your Third Party Software may retrieve certain End User Data from EMOTIV using the API only with the end user\'s authorization, and only when and for the limited purposes for which the authorization was given.
12. Termination of the API License Agreement
12.1. This API License Agreement will continue to apply until terminated by either You or EMOTIV as set out below.
12.2. If You want to terminate this API License Agreement, You may do so by providing EMOTIV with thirty (30) days' prior written notice of termination and discontinuing Your use of the API and any developer credentials.
12.3. EMOTIV may terminate this API License Agreement with You at any time by providing You with notice of termination if:
(A) You have breached any provision of this API License Agreement, the Additional Terms, EMOTIV's Privacy Policy or Terms of Use, or any other agreement You have with EMOTIV; or
(B) EMOTIV is required to do so by law; or
(C) EMOTIV decides it will no longer provide the API to users in the jurisdiction in which You are resident or from which You use the service; or
(D) EMOTIV determines in its sole discretion that providing the API or certain API services to You is no longer commercially viable.
12.4. Upon termination of this API License Agreement, all rights and licenses granted to You by EMOTIV under this API License Agreement and under any Distribution License Agreement will cease. EMOTIV has no obligation to maintain or provide Your Third Party Software with access to End User Data following termination of this API License Agreement.
12.5. Following termination of this API License Agreement, Sections 5.1, 5.4, 9.1-9.3, 12.4, 12.5, 13.1-13.3, 14.1, and 15.1-15.7 will continue to bind You and EMOTIV.
13. EMOTIV's Disclaimer and Limitation of Liability
13.1. YOUR USE OF THE API IS AT YOUR SOLE RISK. EMOTIV PROVIDES THE API \"AS IS\" AND \"AS AVAILABLE\" WITHOUT WARRANTY OF ANY KIND. EMOTIV IS NOT RESPONSIBLE FOR ANY ASPECT OF THIRD PARTY SOFTWARE AND DOES NOT ENDORSE, RECOMMEND OR ENCOURAGE THE USE OF ANY THIRD PARTY SOFTWARE. YOUR USE OF THE API AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE API IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THAT USE, INCLUDING BUT NOT LIMITED TO DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA.
13.2. EMOTIV DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
13.3. TO THE EXTENT PERMITTED BY LAW, EMOTIV WILL NOT, UNDER ANY CIRCUMSTANCES AND NO MATTER WHAT THE LEGAL THEORY (TORT, WARRANTY, CONTRACT, OR OTHER), BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE API OR ANY THIRD PARTY SOFTWARE, INCLUDING ANY LOSS OF DATA, AND WHETHER OR NOT EMOTIV HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. UNDER NO CIRCUMSTANCES WILL EMOTIV BE LIABLE TO YOU FOR ANY AMOUNT.
14. Your Obligation To Indemnify EMOTIV
14.1. To the maximum extent permitted by law, You agree to defend, indemnify, and hold harmless EMOTIV, its affiliates, and their respective directors, officers, employees, and agents from and against any and all claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including attorneys' fees) arising out of or accruing from (a) Your use of the API, (b) any Third Party Software You develop, and (c) any failure by You to comply with this API License Agreement.
15. GENERAL TERMS
15.1. Your Relationship with EMOTIV. For all purposes of this API License Agreement and Your use of the API, You and EMOTIV are acting independently and not as the partner, joint venturer, agent, employee, or employer of the other. You do not have any authority to assume or create any obligation for or on behalf of EMOTIV, express or implied, and You will not attempt to bind EMOTIV to any contract or other obligation.
15.2. API License Agreement Amendments. EMOTIV may amend this API License Agreement on a prospective basis, and Your use of the API after an amendment constitutes Your consent to be bound by the amendment going forward.
15.3. Applicable Law and Location of Lawsuits. This API License Agreement, and Your relationship with EMOTIV under this API License Agreement, will be governed by and construed in accordance with the laws of the State of California, excluding any rules that would apply the law of another jurisdiction. You and EMOTIV agree to submit to the exclusive jurisdiction and venue of the courts located within the City and County of San Francisco, California, to resolve any legal matter arising from this API License Agreement.
15.4. No Waiver of Rights by EMOTIV. EMOTIV's failure to exercise or enforce a legal right or remedy contained in this API License Agreement will not constitute a waiver of that right or remedy.
15.5. Effect of Invalidity of Specific Terms. If a court of competent jurisdiction holds any provision of this API License Agreement to be unenforceable, the rest of the API License Agreement will be severable and remain in effect.
15.6. Assignment of Rights. You may not assign any rights or obligations under this API License Agreement without EMOTIV's advance written consent, which EMOTIV may withhold in its sole discretion. EMOTIV may assign its rights or obligations under this API License Agreement in its sole discretion.
15.7. Entire Agreement. This API License Agreement, including all documents incorporated herein by reference, along with EMOTIV's Privacy Policy and Terms of Use, constitute the entire agreement between You and EMOTIV regarding Your internal use of the API.
EXHIBIT A
ADDITIONAL TERMS
License Fees:
You will pay EMOTIV a license fee based on Your device as described on the EMOTIV website, or set forth below, or otherwise disclosed to You by EMOTIV (the "API License Fee"). [Insert amount and calculation of the API License Fee below]
Payment Terms:
You will pay EMOTIV the API License Fee on a monthly basis as described on the EMOTIV website or otherwise disclosed to You by EMOTIV.
If any amount owed to EMOTIV is not received by the due date, then without limiting EMOTIV's rights or remedies, the amount owed will accrue a carrying charge at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
If any amount owed to EMOTIV is not received by the due date, EMOTIV may, without limiting its other rights and remedies: (a) accelerate You payment obligations, in which event You will immediately pay EMOTIV all current and future amounts payable to EMOTIV under this API License Agreement, including any applicable carrying charges; and/or (b) suspend Your access to the API and other software until such amounts are paid in full.
The license fees do not include any taxes. You are solely responsible for paying all taxes associated with Your API license. If EMOTIV has the legal obligation to pay or collect taxes for which You are responsible under this API License Agreement, You will immediately pay such amount to EMOTIV upon EMOTIV's request.
You will keep and maintain accurate books of account and records covering all transactions relating to this API License Agreement. EMOTIV will have the right to audit Your books of account and records during reasonable business hours in order to verify the accuracy of all payments provided and received in connection with this API License Agreement, as well as Your compliance with the other terms of this API License Agreement. If the audit discovers a deficiency in any payment made or to be made in connection with this API License Agreement or your non-compliance with any other term of this API License Agreement, You will immediately pay any deficient amount plus interest at the highest legal rate to EMOTIV and reimburse EMOTIV for the costs of such audit.