NEUROTRACK TERMS OF USE
Last updated October 20, 2022
These terms and conditions apply to the use of services provided by Neurotrack Technologies, Inc. (“Neurotrack”). References to “you” and similar terms refers to you as the individual user of any Neurotrack Service. “We” and similar terms refer to us, Neurotrack. When you accept and use any services we provide (“Services”), you are agreeing to these terms and conditions as a binding contract (this “Agreement”) and you are accepting the provisions of our Privacy Policy which is incorporated here by reference. If you do not accept this Agreement and the Privacy Policy, you are not authorized to use the Services.
IMPORTANT DISCLAIMER: NEUROTRACK AND NEUROTRACK SERVICES DO NOT AND CANNOT DIAGNOSE ANY HEALTH CONDITION, PROVIDE A MEDICAL OPINION, AND/OR SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE AND THERAPIES. The Neurotrack Services provide only educational information and resources for personal use, and not as medical advice or treatment. You acknowledge and agree that it is Your responsibility to consult with a medical doctor or other appropriately licensed professionals for any diagnosis, treatment, questions, or concerns you may have about your physical or mental health.
THESE TERMS INCLUDE A PROVISION FOR MANDATORY ARBITRATION OF ANY DISPUTES ON AN INDIVIDUAL BASIS, WITHOUT CLASS ACTIONS OR JURY TRIALS. These Terms require both parties to solve any disputes related to Neurotrack Services through mandatory arbitration procedures. Please see the section “Mandatory Arbitration” below for more details.
Your Rights to Use the Services. Subject to the terms and conditions of this Agreement, we grant you a limited, non-exclusive, non-transferable right and license access and use one or more of our Services as may you select in an online ordering process (your “Order”). This right and license is a limited time subscription as stated in your Order, and you are authorized to use the Services solely for your own personal educational and informational purposes. You are not authorized to use the Services to diagnose or treat any physical or health condition, but you may share results and use the Services under the supervision and responsibility of a licensed medical doctor.
Special Terms for Coaching Services. In addition to other provisions in this Agreement that apply to all our Services, the following special terms apply to our Coaching Services: Coaching Services are not for use to diagnose, treat, or cure any physical or mental health condition, and Coaching Services are not a substitute for professional counselling, psychotherapy, psychoanalysis, or other medical or mental health care. Our Coaching staff are trained in use of Neurotrack technologies, but they are not part of any licensed professional group. Instead, they are part of the unregulated coaching services industry helping individuals with personal coaching needs, such as establishing and tracking goals for personal or professional development. No outcome or results are assured or guaranteed in your use of Coaching Services. We will protect your personal confidential information obtained through your use of the Coaching Services as we do for our other Services as described in Section 6 (“How We Protect Your Data”), but as with our other Services we may disclose information if we are required to do so by law, or if we or if we reasonably believe it is necessary to prevent harm to yourself or to others, although we undertake no duty to monitor our records for such purposes.
You May Not Misuse the Services. You agree that you and anyone you authorize to access the Services for you will not: (i) rent, lease, lend, sublicense, sell, or otherwise transfer rights to use the Services to any third party; (ii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of our technologies; (iii) remove or alter without authorization any logos, trademarks, links, copyright or other notices, legends or markings from the Services or documentation; (iv) attempt to bypass or tamper with the security, operation, or access control technology of the Services; (v) attempt to access the accounts or data of any other customer or third party; (vi) use the Services to analyze its workings and features for the purpose of developing competitive Services; (viii) use the Services in violation of applicable export control laws; (ix) use the Services in a manner that interferes with the use or enjoyment of it by others; (x) use the Services in violation of any applicable acceptable use policy posted; or (xi) use the Services in a way that violates applicable law or the legal rights of others or is use we consider abusive of others or otherwise inappropriate. In the event of a violation of this Section, then in addition to any other remedies we may have, we reserve the right to immediately suspend your access to the Services until the violation of this section is cured.
You Are Responsible for Protecting Passwords and Unique Credentials. You are solely responsible for selecting secure account and user passwords, changing passwords frequently, maintaining the confidentiality of user logins and passwords, any restricting access to these and any other unique credentials you are assigned. We assume no responsibility for damage or loss arising from unauthorized access to the Services and information in your account due to your failure to protect your account and credentials through proper security measures.
We Have the Right to Use Feedback. We encourage you to provide suggestions, proposals, ideas, recommendations, or other feedback regarding the Services. To the extent you provide such feedback, you grant us an unrestricted and perpetual right to incorporate that feedback into Services and use it in our business for any purpose. We will not, however, use your name or identify you when using feedback for marketing or promotional purposes unless we have asked for and received your consent.
How We Protect Your Data. We will maintain appropriate administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of the data you provide to us through the Services, in accordance with our Privacy Policy available at www.neurotrack.com/privacy-policy. Without your prior consent or instructions, we will not disclose your data to a third party except as needed to perform the Service, such as to our trusted hosting providers and data processing vendors, or to your designated health professionals who have your consent. We will disclose your information if we are required to do so by law, or if we reasonably believe it is necessary to prevent harm to yourself or to others, although we undertake no duty to monitor our records for such purposes. Without your prior consent or instructions, we will not otherwise access your data in our systems except to provide the Services you requested and as we may need to do so in order to maintain our systems or to prevent or address technical problems. California residents: WE DO NOT SELL YOUR DATA as that phrase is used in the California Consumer Privacy Act of 2018.
How We Protect Your Protected Health Information. In any situation, such as in-clinic use of our Services, when we receive protected health information about you from a treatment provider, insurer, or any “Covered Entity” under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), we act as a “Business Associate” to the Covered Entity and we comply with all applicable HIPAA requirements and regulations, including the HIPAA Privacy Rule. If you provide data to us that is not covered by HIPAA, we still protect your data and restrict its use as described in Section 6 (“How We Protect Your Data”).
We May Retain and Use Aggregated and Anonymous Data From Our Systems. You acknowledge and agree that we may collect, use, and disclose aggregate and anonymized information from our systems and may do so for any purpose, as long as such information contains no personally identifying information and cannot be traced back in any way to identify you or others identified in your data. This information we derive from our systems is important to us for a number of reasons including to maintain and improve our Services and to promote our solutions and their performance. You further acknowledge and agree that the Services may now or in the future utilize or rely on artificial intelligence components and other forms of machine learning and data analytics as used by Neurotrack and its suppliers. You acknowledge and agree that Neurotrack may use any information gained through its use of artificial intelligence and machine learning (which is not personally identifiable information) for any purpose, and that, as between you and Neurotrack, Neurotrack will exclusively own all such information and all Intellectual Property rights therein.
You Agree to Pay All Fees When Due. You agree to pay all charges due, if any, associated with your use of the Services as specified when you place your Order (“Fees”). Unless otherwise stated in the Order, Fees for subscriptions and other flat-fee charges are due in advance, and Fees paid are non-cancellable and non-refundable. You agree to pay applicable sales, use, value added or similar taxes, if any, we may be required to collect related to your Order. All payments must be in U.S. dollars.
You Authorize Us to Charge Your Payment Account when Payments are Due. Unless another payment method is specified in your Order, you will pay any Fees due through a payment card and third-party processor, or through a supported intermediate payment system you specify (your “Payment Account”). You hereby authorize us or our authorized agents to charge your Payment Account for all payments under this Agreement as they come due.
If Your Payment is Late Your Account May Be Suspended. If your payment is late or your Payment Account declines the charges, we may suspend the Services until you establish a new Payment Account and pay all amounts due. You are responsible for keeping all Payment Account information accurate and up to date, including information needed by us to charge your Payment Account.
You Will Contact Us First If You Dispute Any Charges. If you dispute all or part of the charges to your Payment Account, you agree to notify us within thirty (30) days of the due date for the disputed charge, and work with us in good faith to resolve the issue before seeking a refund through your Payment Account. If we agree a refund is due, we will promptly refund the disputed amount. You agree that for any variable or per-use charges, our system reports on usage are the system of record for payment purposes.
The Duration of This Agreement. This Agreement is effective when you accept these terms by accessing, installing, signing up, ordering, or otherwise using our Services, and unless otherwise stated in your Order, this Agreement continues month-to-month until terminated by one party or the other as provided in this Agreement or the Order. If you have more than one Order with us, the termination of an Order will not affect other Orders, but if a party terminates the entire Agreement, then all Orders terminate.
You May Terminate at Any Time for Any Reason. Unless otherwise specified in an Order, you may terminate one or more Orders or this entire Agreement at any time, for any reason or no reason, by contacting us at help@neurotrack.com_. The termination will be effective once we are notified, however you will not be entitled to a refund of any pre-paid Fees, and any unbilled charges accrued through the date of termination will become immediately due and payable and charged to your Payment Account.
We May Terminate if You Breach This Agreement, or For Any Reason With 30 Days’ Notice. We may terminate any Order, or this entire Agreement, by giving you notice of non-payment, or if you violate a provision of this Agreement and do not remedy it, if it can be remedied, within two (2) weeks of our notice. Your access to Services may be suspended during this time. We may also terminate an Order or this entire Agreement at any time and for any reason or no reason by giving you thirty (30) days’ prior notice.
All Services and Access End Upon Any Termination of this Agreement. Immediately upon any termination of an Order or this Agreement, you will cease use of the terminated Services, and you will be charged in full all Fees due, if any, at the time of termination. You will no longer have access to the Services including your account or your data from our systems. All provisions of this Agreement which by their nature should survive cancellation or termination of this Agreement shall survive cancellation or termination. Be sure to download and store any of your data available from our Services before termination occurs since your account and related data may no longer be available after termination.
We Will Defend and Indemnify You if Our Services Infringe Intellectual Property Rights. We will defend, indemnify, and hold you harmless from and against all claims, lawsuits, and other actions brought by a third party against you to the extent based on allegations that our Services infringe that third party’s patent, copyright, trademark, or trade secrets rights. This indemnification right does not apply to the extent the allegations are based on your data or any other materials you provided, modifications you made to the Services, unauthorized use of the Services, or combination of our Services with other goods or services we did not provide. If we believe that any portion of the Services may be subject to such an infringement claim, then we may, at our sole option and at no additional expense to you: (i) obtain for you the right to continue using the Service; (ii) modify or replace the infringing portions of the Service to allow for your continued use; or (iii) if these alternatives are not commercially reasonable, refund to you any unused, prepaid Fees and terminate this Agreement. THIS SECTION CONTAINS OUR SOLE OBLIGATIONS AND YOUR SOLE REMEDIES IN THE EVENT OF THIRD-PARTY INFRINGEMENT CLAIMS.
You Will Defend and Indemnity Us and our Vendors For Misuse of Services or Your Breach of Your Obligations to Others. You agree to defend, indemnify, and hold us and our vendors harmless from and against all claims, lawsuits, and other actions brought by a third party against us or our vendors to the extent based allegations that would constitute a breach by you of your obligations in Section 3 (“Prohibitions on Misuse of Services”), or a breach by you of your obligations to that third party that was not caused by any breach of our obligations to you under this Agreement.
Limited Warranty, Your Exclusive Remedies, and Warranty Disclaimers. We warrant for duration of your authorized use of the Services that they will be available in substantial conformance with the specifications and documentation we publish when the Services are used in normal operating conditions. Your exclusive remedy for breach of this warranty is to notify us in writing in reasonable detail of the non-conforming aspect of the Services during the warranty period, and upon receipt of such notice, we, at our option, will either use commercially reasonable efforts to modify and provide an update to the Services so that it is in conformance with this warranty requirement, or provide a commercially reasonable work-around within a reasonable period of time, not to exceed thirty (30) days. If we are unable to do so, we will provide you with a refund of any pre-paid Fees that apply to the period following your report of the non-conformity. THIS SECTION SETS FORTH YOUR EXCLUSIVE RIGHTS AND REMEDIES AND OUR SOLE LIABILITY IN CONNECTION WITH THIS LIMITED WARRANTY. THE SERVICES (INCLUDING THE SITE(S) AND THE NEOTRACK CONTENT) ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEUROTRACK DISCLAIMS ALL WARRANTIES REGARDING THE SERVICES (INCLUDING THE SITES AND THE NEUROTRACK CONTENT), WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEUROTRACK DOES NOT MAKE ANY REPRESENTATION OR PROVIDE ANY WARRANTY RELATING TO RESULTS OF USING THE SERVICES. Your access to and use of the Services is at Your own risk. All of the foregoing disclaimers apply to the maximum extent permitted by applicable law. If applicable law requires any warranties with respect to the Services, all such warranties are limited in duration to the longer of thirty (30) days from the date of Your first use or the minimum duration allowed by law; but some jurisdictions do not allow limitations on how long an implied warranty lasts, so this limitation may not apply to You. You may also have other rights which vary by jurisdiction, and which are not modified by this clause to the extent that doing so would breach such applicable law.
Mutual Limitation of Liability. NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, WHETHER OR NOT FORESEEABLE AND EVEN IF SUCH PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR YOUR PAYMENT OBLIGATIONS, EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, AND ANY CLAIMS BASED ON GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, A PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED A SUM EQUAL TO THE AMOUNTS PAID OR PAYABLE UNDER THIS AGREEMENT BY YOU TO US. IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY OR IF GREATER, $1,000. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
Modifications We Make to this Agreement Will Apply to New Orders and Renewed Orders. We reserve the right, at our discretion, to modify or replace any part of this Agreement by (i) posting a revised Agreement on our site with a new revision date, or (ii) providing notice to you of the change and revision date in the App(s) or by email. Modifications will be applicable to new Orders placed after the revision date of the modification and will also apply to existing Orders at the next renewal, which is the start of the next month following the notice or posting date for month-to-month plans, however if you elect to terminate this Agreement and notify us within thirty (30) days of the revision date (or the date of notice in-App or by email), the modifications will not apply.
We Are Independent Contractors. The parties to this Agreement are independent contractors and no agency, partnership, joint venture, employment or similar relationship exists between them. Neither party has the authority to bind the other or incur any obligation on its behalf.
This Agreement is Governed by New York Law, and Both Sides Agree Arbitration of Disputes is Mandatory, with No Class Actions or Trial by Jury. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to its conflict of laws provisions. For any dispute with us you agree to first contact us and attempt to resolve the dispute with us informally in good faith. In the unlikely event that we have not been able to resolve a dispute with you within thirty (30) days’ of such notice, then any controversy or claim arising out of or relating to this Agreement or the breach hereof may be pursued on an individual basis only and not on behalf of a class, and shall be settled by binding confidential arbitration by the American Arbitration Association (“AAA”) pursuant to their Consumer Arbitration Rules available at www.adr.org. Any award shall be final, binding, and conclusive. A judgment upon the award rendered may be entered in any court having jurisdiction thereof. Nothing in this Section shall be deemed as preventing either party from seeking a preliminary injunction or other preliminary equitable relief from a court of competent jurisdiction in appropriate cases.
Time Limitation on Bringing Claims. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISNG OUT OF OR RELATED TO YOUR USE OF THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE, OR ELSE YOU WAIVE THE RIGHT TO PURSUE ANY SUCH CLAIM AND THAT CLAIM OR CAUSE OF ACTION WILL BE BARRED FOREVER.
These Terms Cannot Be Assigned or Transferred to Another User. Neurotrack Services provide personalized information and is not intended for simultaneous use by multiple users, and therefore you may not assign or transfer your right to Services to any other party. Neurotrack may assign this Agreement in the event of a merger, acquisition, sale of substantially all the assets of Neurotrack or any similar transaction. This Agreement shall be binding upon and shall inure to the benefit of the parties, their heirs, executors, personal representatives, successors, and permitted assigns.
Electronic Communications Qualify as “Written” Notices. Information communicated through the Site(s) as part of the Services constitutes an electronic communication. When You communicate with Neurotrack through the Site(s) or other forms of electronic media, such as e-mail, You are communicating with Neurotrack electronically. You agree that Neurotrack, on behalf of itself and others who may be involved with delivering the Services, may communicate electronically by e-mail and/or may make communications available to You by posting them on the Site(s), and that such communications, as well as notices, disclosures, agreements and other communications that we provide to You by such means are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by Neurotrack.
These Terms, Including accompanying your Orders and our Privacy Policy form the Entire Contract Between You and Us. Unless you have a signed, written contract with us that says this Agreement does not apply, this Agreement, along any referenced exhibits, your Order(s) and our Privacy Policy, constitute the entire understanding and agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements or understandings.
Notice for California Residents. The provider of the Services is: Neurotrack Technologies, Inc. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254