Last updated: November 20, 2020

These NextMind DevKit Terms of Use are a binding agreement between You, an individual or a company providing software development services and Nextmind, incorporated and registered under number 823 089 031 in Paris, having its principal place of business at 4 rue Drouot, 75009 Paris. Nextmind and the Developer(s) are hereinafter individually referred to as a “Party” and collectively as “Parties”.

BY CLICKING ON THE “AGREE” BUTTON OR THE CHECKBOX YOU EXPRESSLY AGREE TO BE BOUND BY THESE TERMS OF USE FOR THE USE OF THE DEVKIT AND YOU REPRESENT THAT YOU ARE ABOVE THE AGE OF 18 AND THAT YOU HAVE THE RIGHT AND AUTHORITY TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, YOU ARE NOT ALLOWED TO USE IN ANY MANNER THE ELEMENTS OF THE DEVKIT.

“Assets”: means the materials provided by Us to You in the SDK, including the Sample Code, the Open Sample Code, the logo, graphic, or any element available to You through the SDK. If some of these materials are subject to third parties’ licenses, this information will be clearly mentioned in the applicable documentation.

“Contents”: means any written information You provide to Us regarding the DevKit such as feedbacks, comments or evaluation.

“Defended Party”: means the Party receiving the claim regarding the alleged infringement of intellectual property rights as described in Section 11.

“Defending Party”: means the Party defending the other Party against the third-party claims regarding the alleged infringement of intellectual property rights as described under Section 11.

“Developed App(s)”: the brain enabled applications/games developed by You by using the third party software Unity 3D (or any third party software) and the DevKit.

“DevKit”: means the NextMind DevKit which is composed of the Hardware and the Software. NextMind technology decodes the active focus of attention from Your brain activity and allows You to control digital interfaces directly with Your mind, in real-time.

“Documentation”: means the Manual of Use available in the DevKit and the online documentation made available to You at this address www.next-mind.com/documentation  in connection with the DevKit; including, without limitation, any and all, tutorials, help files and other files and any updates and/or upgrades to the Assets.

“Hardware”: means the NextMind Sensor that records neural activity at the back of the head.

“IPRs”: means any intellectual and industrial property rights including all rights in patents, utility models, semi-conductor topography rights; copyrights, authors’ rights, trade marks, brands, domain names, trade secrets, know-how and other rights in information, drawings, logos, plans, database rights, technical notes, prototypes, processes, methods, algorithms, any technical-related documentation, any software, registered designs and other designs, in each case, whether registered or unregistered and including applications for registration, and all rights or forms of protection having equivalent or similar effect anywhere in the world.

“Nextmind” or “We”, “Us” or “Our”: means Nextmind, incorporated and registered under number 823 089 031 in Paris, having its principal place of business at 4 rue Drouot, 75009 Paris.

“Open Sample Code”: means the Sample Code which is freely accessible to You (a certain part of the source code), except for the Stimulation Assets protected under Nextmind’s patents’ rights. You are allowed to amend the Open Sample Code under the conditions set out in Section 3.

“Patents”: means any national and regional patent or any international, national and regional patent application in force, owned by Nextmind and covering the Stimulation Assets.

“Sample Code”: means the sample code available in the Assets which is not freely accessible.

“SDK” or “Software”: means the NextMind Software Development Kit (including the Stimulation Assets) which allows You to develop your own brain-enabled applications/games and includes building blocks, tutorials and demo apps.

“Stimulation Asset(s)”: means the stimulation assets or images enabling a brain response developed specifically by NextMind in the SDK which are protected by Patents

“Terms of Use”: means this legal binding agreement between You and Nextmind.

“You”, “Your” or “Developer (s)”: means an individual or a company providing software development services.

“Your Developments”: means Your Developed App(s) and Your Sample Code.

“Your End Users”: means Your client or a user who uses Your DevKit or any elements of your DevKit and the user of any of Your Developments.

“Your Improvements”: means any patentable improvement made by You to the Stimulation Asset(s).

“Your Sample Code”: means the Open Sample Code amended by You.

ONLY THE PERSONS ABOVE THE AGE OF 18 ARE ALLOWED TO USE THE DEVKIT. MOREOVER, WE STRONGLY DISCOURAGE THE USE OF THE DEVKIT IF YOU HAVE A HISTORY OF PHOTOSENSITIVE EPILEPSY OR HAVE ANY NEUROLOGICAL DISEASE. PLEASE CONSULT YOUR MEDICAL PRACTITIONER BEFORE USING THE DEVKIT. PLEASE NOTE THAT THE DEVKIT MUST NOT BE USE IN A MEDICAL ENVIRONMENT OR FOR MEDICAL PURPOSES.

Once You received Your DevKit to the address mentioned in the order form, as described in the Terms of Sales, You shall access to the mentioned website address in order to activate Your DevKit and in particular to pair the Hardware with the Software: www.next-mind.com/developer. On this webpage You will be able to download:

(i)    the Nextmind Manager Installer in executable format;

(ii)   the SDK which is a .unitypackage file to be imported in the Unity software.

 

You won’t be able to use the Hardware if the NextMind Manager is not properly installed and more generally if You do not comply with the Documentation and the steps described above.

PLEASE NOTE THAT YOU MUST READ AND ACCEPT THE TERMS OF USE OF THE UNITY SOFTWARE OR ANY THIRD-PARTY SOFTWARE BEFORE IMPORTING THE SDK IN THE UNITY SOFTWARE. BY ACCEPTING THE TERMS OF USE OF UNITY OR OTHER THIRD-PARTY YOU ACCEPT TO BE BOUND BY AND TO COMPLY WITH UNITY OR THIRD-PARTY TERMS OF USE.

Before any use of the Hardware you must carefully read and comply with the Documentation applicable to the Hardware.

THE SOFTWARE IS LICENSED NOT SOLD.

4.1       Licenses granted to You

4.1.1. License to install and use the DevKit. As long as you strictly comply with these Terms of Use and the Terms of Sale We grant You, for the legal duration of the IPRs, a personal, non-exclusive, non-transferable, non-sublicensable, worldwide, limited right and license to install and use the DevKit for the sole internal purpose of testing and developing Your Developments, excluding any commercial purpose.

4.1.2. License to use the Assets. The Assets including the Sample Code and the Open Sample Code are available in the SDK and may help You to develop Your Developments. We grant You, for the legal duration of the IPRs, a personal, non-exclusive, non-transferable, non-sublicensable, worldwide, limited right and license to use the Assets included in the SDK. This license does not grant You any title or ownership on the Assets which remain the exclusive property of Nextmind or a third-party software company. Notwithstanding with the above, You are also allowed under these Terms of Use to use and modify some of the Open Sample code. As detailed in Section 7.2 Your Developments, You will own all rights, titles and IPRs in and to Your Developments.

4.1.3. License to use the Stimulation Assets. The Stimulation Assets are available in the SDK and may help You to develop Your Developments which can only be used for the strict purpose of developing Your Developments. We grant You, for the legal duration of the Patents, a personal, non-exclusive, non-transferable, non-sublicensable, limited right and royalty-free license to reproduce, use and modify the format and color of the Stimulation Assets exclusively to enhance Your Developments’ experience in the SDK, for countries where a Patent application is filed and/or a Patent is granted and maintained in force. This license does not grant You any title or ownership on the Stimulation Assets which remain the exclusive property of Nextmind.

4.1.4 License to use the information processed. To the extent permitted by Our Privacy policy, You grant Nextmind for the legal duration of the IPRs an irrevocable, fully-paid and royalty-free license to collect, access, process, transmit, store, copy, share, display, and use any data and information collected by Us or provided by You in connection with Your use of the DevKit for the purpose of providing and improving the elements, products and software included in Our DevKit (i.e. improving the algorithms of Our DevKit) and for its own scientific and technology research and developments purposes. For any information, consult Our Privacy Policy www.next-mind.com/privacy-policy/

4.2       License granted to Us

4.2.1. License to use, test, assess and operate Your Developments. As detailed in Section 4.1.2 You are allowed to use and modify under the conditions described above the Open Sample Code included in the SDK and to develop your Developed App(s). You agree under these Terms of Use to grant Us for the legal duration of the IPRs, for marketing and promotional purposes a personal, exclusive, transferable, sublicensable, worldwide, right and license to use, test, review Your Developments. By accepting these Terms of Use You accept that We publish, communicate, release, share, any components of Your Developments for marketing and promotional purposes and We will inform You of any publication, communication, release or share.

4.2.2. License to use Your Contents. You agree to grant Us for the legal duration of the IPRs a personal, exclusive, transferable, sublicensable, worldwide, right and license to use Your Contents (for example You allow Us to display Your Contents on Our Website).

4.2.3. License to use Your Improvements on the Stimulation Assets. For any of Your Improvements on the Stimulation Assets, in the event of a patent being filed, you agree to grant Us, for the legal duration of patent protection, a personal, non-exclusive, transferable, sublicensable and royalty-free license to use the said patent(s), for countries where a patent application is filed and/or a patent is granted and maintained in force.

Except as expressly allowed in Section 4 You are not allowed under these Terms of Use to:

(i)       publish, distribute or resell any element of the DevKit (including the Stimulation Assets protected under Nextmind’s Patents’ rights);

(ii)      modify or create derivative work of any element of the DevKit , except as expressly authorized under these Terms of Use;

(iii)     allow third parties to use any element of the DevKit (including the Stimulation Assets protected under Nextmind’s Patents’ rights) or make copies unless agreed by Us in writing;

(iv)     use any element of the DevKit for any illegal purpose or in violation of any law;

(v)      use the SDK with a hardware which is not the NextMind Sensor.

(vi)     use the Hardware without the Software;

(vii)    violate or encourage any violation of Our rights and/or intellectual property rights or any third-party rights’ and/or IPRs;

(viii)   decompile, reverse engineer and/or disassemble all or part of the Software or allow others to do so;

(ix)     disassemble or reassemble the Hardware and its components;

(x)      use the SDK or the Hardware to create any software, goods or product which is identical or similar to any element of the DevKit.

 

Failure to comply with this Section constitutes a material breach, which allow Us subject to a prior notice to suspend or immediately terminate Your license without prejudice to other rights, remedies or damages to which We are entitled under the applicable laws.

These Terms of Use will enter into force upon as you click on the checkbox during the order process or on the “Agree” button before installing the NextMind Installer and will continue for the legal duration of the IPRs. We may terminate Your license as defined in Section 4, subject to a prior notice, if You breach Sections 2, 3, 4, 5, 7, 8, 11 of these Terms of Use and fail to remedy that breach within 10 working days upon receipt of notice in writing to do so.

 

On termination of these Terms of Use for any reason:

(i)       all rights and license granted to You under these Terms of Use shall cease;

(ii)     you shall immediately pay to Us all outstanding unpaid invoices and interests;

(iii)    you must immediately stop using the DevKit;

(iv)    you must immediately remove the SDK from all computer equipment in Your possession;

(v)     the rights and remedies of the Parties shall not be affected, including the right to claim damages in respect of any breach of these Terms of Use which occurred before the date of termination or expiry; and

(vi)    provisions which expressly or by nature shall survive after termination will remain fully applicable.

Any termination of these Terms of Use by You under this Section will not affect Your right, subject to your continued compliance with Your obligations under these Terms of Use, and in particular Your obligation to contact Us before any commercialization of Your Developments  created and first distributed before termination, and will not affect the right of Your End Users to use Your Developments.

We use commercially reasonable security measures to protect ourselves against the loss, misuse and alteration of the data we collect, depending on the categories of personal data and the applicable processing activity, such as pseudonymization, encryption of transmitted and stored data, restriction of access by two-factor authentication where applicable.

 

7.1 DevKit. Notwithstanding with Section 4, these Terms of Use do not grant You any rights to, under or in, any patents, copyrights, trade secrets, trade names, trademarks (registered or not), or any other rights or licenses in respect of any elements of the DevKit. We reserve all of our IPRs in the DevKit.

7.2 Your Developments. You own all rights, titles and IPRs in and to Your Developments you create using the SDK. Notwithstanding with the above, since Your Developments are developed through the use of the SDK, You must clearly specify that Your Developments are “Made with Nextmind”.

7.3 Your Contents. You may send us Your feedbacks and comments through a form or through other means. Notwithstanding with Section 4, You remain the only owner of Your Contents and warrant that Your Contents comply with the applicable law and third parties rights and titles.

7.4 Data processed. Nextmind, as data controller, collects Your and/or Your End-Users’ Data such as connection data (session logs including flash duration) and Electroencephalography data (EEG data) for the purpose of providing and improving the elements, products and software included in Our DevKit (e. improving the algorithms of Our DevKit) and for its own scientific and technology research and developments purposes. For any information, consult Our Privacy Policy www.next-mind.com/privacy-policy.

You own all titles and rights in Your Developments You create using the SDK (except for the Stimulation Assets protected under Nextmind’s Patents’ rights). You are allowed to distribute or share within the community for free (under open source License or any other mean) Your Developments.

 

IF YOU WANT TO COMMERCIALIZE (LICENSE, SALE OR ANY OTHER MEANS) YOUR DEVELOPMENTS YOU MUST CONTACT US AT THE FOLLOWING ADDRESS PRIOR ANY DISTRIBUTION: SALES@NEXTMIND.COM, IN ORDER TO CONCLUDE AN AGREEMENT WITH US WHICH SETS OUT THE TEMS AND CONDITIONS, INCLUDING THE FINANCIAL CONDITIONS, UNDER WHICH YOU ARE ALLOWED TO COMMERCIALIZE YOUR DEVELOPMENTS .

BY USING THE DEVKIT YOU AGREE AND ACKNOWLEDGE THAT YOU MUST ACCEPT THE TERMS OF USE OF THE UNITY SOFTWARE OR THIRD-PARTY SOFTWARE BEFORE USING THE UNITY SOFTWARE OR THE THIRD PARTY SOFTWARE. THESE TERMS OF USE MAY INCLUDE A ROYALTY PROVISION SUBJECT TO THIS THIRD-PARTY TERMS AND CONDITIONS.

We have the right to audit Your use of the DevKit in order to verify that You comply with these Terms of Use. You shall permit Us to inspect and have access in remote (or on site for companies) to the computer equipment where the developments are performed or on which the DevKit is being kept or used, and have access to any records kept in connection with these Terms of Use. We shall provide a two (2) days prior written notice of Our intention to conduct such an audit. Audits shall be conducted in a manner that will result in minimal disruption to Your business operations and during normal business hours. If the audit report shows that You do not comply with Your obligations stated in these Terms of Use, the expenses related to the audit will be exclusively borne by You.

To the extent permitted by law, the DevKit is provided “as is” with no warranties of any kind. We do not warrant that the DevKit will operate without interruption or be error free or meet individual requirements. You represent and warrant that Your Content, scripts, data will be free of any virus, Trojan Horse, cancelbot, timebombs or other devices developed to disable or to erase, damage or corrupt software, hardware or data.

The Parties will defend each other against the third-party claims regarding the alleged infringement of a patent, copyright or similar rights and will pay the amount of any resulting adverse final judgment or approved settlement, provided that the party contacted by the third party:

(i)     promptly notifies in writing the other part of the claim specifying the nature of the claim in reasonable detail and;

(ii)    grants to the Defending Party the right to control the defense and any settlement of it and;

(iii)  does not make any admission of liability, agreement or compromise in relation to the claim without the prior written consent of the Defending Party (such consent not to be unreasonably conditioned, withheld or delayed);

 

The Defended Party must provide the Defending Party with all requested assistance, information, and authority, and must take all reasonable action to mitigate its losses arising from the third-party claim. This constitutes the parties’ sole remedies and entire liability for such claims.

If the third party alleges that an element of the DevKit infringes its or a third party’s intellectual property rights, we will, at our own option:

  (i)     obtain the right to continue using this element of the DevKit;

  (ii)   modify or replace the element of the DevKit so that it becomes non-infringing.

  (iii)  we shall have no liability for any claim based on or resulting from:

  (iv)  Your use of the DevKit in violation of these Terms of Use and Terms of Sales, and the Documentation provided by Us;

  (v)   Unauthorized change, modification or addition in the DevKit by You;

  (vi)  Combination, operation or use of any element of the DevKit with third party programs or equipment or hardware or any element provided by a third party;

  (vii) Use of a non-current release or version of the SDK.

This Section constitutes Your exclusive remedy and Our sole liability in respect of claims regarding the alleged infringement of intellectual property rights.

We will not be held liable for any damages resulting from (i) Your use or Your End User’s use of the DevKit (including if You or End-Users have any neurological disease or other restrictions of use) or (ii) third party materials or third party elements used with the DevKit or (iii) Your End User’s use of Your Developments or otherwise arising under or in connection with these Terms of Use including any indirect damages such as loss of profits or business, loss of business opportunity, loss of data, loss of anticipated savings and business interruption. Our cumulative, aggregate liability to You will not exceed the price paid by the Developer pursuant to the Terms of sale. The limitations and exclusions in this Section apply to all claims and causes of action arising out of or relating to these Terms of Use, excluding tort liability claims. We disclaim any liability regarding Your commercialization of Your Developments and any information that You should provide to Your End-Users’, whether they are consumers or businesses under the applicable Laws. You should respect any regulation and applicable Laws while using the DevKit for your own use or during any gaming event and/or brain-enabled applications or while commercializing Your Developments.

We reserve the right to amend these Terms of Use at any time. In the case of major changes We will require that you accept the updated version of the Terms of Use. In the case of minor changes, we will inform You of these modifications and Your continued use of the DevKit after receiving this notification of changes will constitute your acceptance of these changes. If you do not agree to the amended version of the Terms of Use, You shall cease or terminate your use of all elements of the DevKit.

These Terms of Use shall be governed by and shall be construed in accordance with French laws. Any disputes, controversy, difference or claim arising out of or relating to these Terms of Use, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by the competent Paris court.

The Parties are independent contractors excluding any partnership, joint venture or agent relationship. The rights and obligations hereunder may not be assigned or transferred, in whole or in part, without Our prior written consent. Unenforceable provisions shall not affect other provisions of this Terms of Use. The failure to exercise, or delay in exercising, a right, power or remedy provided by these Terms of Use or by law shall not constitute a waiver of that right, power or remedy. You shall obtain Our prior approval in writing before using Our trademarks or any IPRs in any manner and in no event you shall knowingly use any name, logo or icon likely to cause confusion with Our IPRs.The English language version of these Terms of Use is legally binding and prevails in case of any inconsistencies between the English version and any translations.