The following describes the terms on which Thalmic Labs Inc. (“Thalmic”) offers you access to the MyoTM Market, through which you may obtain software to use with Thalmic’s Myo products. BY DOWNLOADING ANY SOFTWARE OR OTHERWISE USING THE SERVICES ON THE MYO MARKET SITE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. If you have any questions or concerns about the terms of this agreement, please contact us at firstname.lastname@example.org.
Thanks for your interest in Thalmic Labs Myo products and software! We are pleased to provide you with software applications for use in conjunction with the MyoTM armband, through Thalmic Labs’ web portal and through other, third party, web stores (such applications referred to herein as the “Software”). All use of Software is subject to these Software license terms, unless you have executed a separate agreement with Thalmic Labs, or unless a different set of Software license terms have been provided to you with the Software – in which case, that agreement or those terms will apply to your use of the Software.
By obtaining and using Software, you are agreeing to adhere to and be bound by these terms, and to use the Software in the manner described in the Software user documentation, and you are also signifying that you can legally be bound by these terms. If you are using Software on behalf of a third party, like your employer, you are also agreeing to these terms on their behalf and you must have the authority to bind them to these terms. If you do not or cannot agree, then we do not permit you to use, and you must not use, the Software in any way.
THE BOTTOM LINE: We like to allow our users to use our Software without a lot of restrictions (except the ones in this agreement and in the user documentation, which we believe are moderate and reasonable), which is why, in exchange for this permissiveness, all use of the Software is at your own risk, which includes you accepting liability for anything arising from your use of Software. We will only be responsible for issues relating to the Software that are wholly within our control, and then only to the limited extent that the law says that we must be responsible.
The parties to this agreement are you, on behalf of yourself as an individual and/or as a representative of an employer, company or other third party entity (being the party for whose benefit Software is being used), and Thalmic Labs Inc., an Ontario corporation with principal place of business at 24 Charles Street West, Kitchener, ON N2G 1H2 (Thalmic).
This is a software license agreement for Software (meaning the system files, redistributables, libraries, tools, APIs, sample code, documentation, and other software materials, as well as any updates to the foregoing, which are made available to you by Thalmic in connection with this agreement) for use in conjunction with the Myo armband (meaning the Myo gesture control armband).
Subject to the terms of this agreement, Thalmic grants you a limited, worldwide, royalty-free, non-assignable and non-exclusive license to use the Software in accordance with the terms of this Agreement and solely for the purposes specified in the user documentation accompanying the Software (which in all cases shall be solely to interact with the Myo armband as described in the user documentation; Thalmic is not responsible for any third party equipment or software). Your use of Software must comply with: (a) this agreement, and (b) any applicable laws, regulations or other mandatory requirements applicable to you and/or the Software (including any laws regarding the export of data or software).
Except to the extent required by applicable third party licenses, you may not:
You agree that you will not engage in any illicit or illegal activity with Software, including any activity that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party, including Thalmic.
Your license to use the Software is conditional upon your payment to Thalmic of all applicable license fees for the Software. If you fail to pay any fees associated with your use of the Software to Thalmic when due, it shall constitute a breach of this license entitling Thalmic to terminate this Agreement.
Use, reproduction and distribution of components of the Software licensed under a third party software license (including but not limited to an open source software license) are governed solely by the terms of that third party software license and not this agreement. Such licenses may be found in the documentation accompanying the Software.
You agree that Thalmic or third parties own all legal right, title and interest in and to the Software, including any intellectual property rights (patents, copyrights, trademarks, etc.) that subsist in the Software, and that you do not acquire any intellectual property or other proprietary rights under this Agreement. You agree that you will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Software. Your only rights to the Software and any part thereof shall be those rights expressly licensed or granted to you under this Agreement. Thalmic reserves all rights not expressly granted to you under this agreement.
Thalmic reserves the right to discontinue, change or remove features, or change the form and nature of the Software at any time without notice. Future versions of the Software may be incompatible with software applications used with previous versions of Software. This agreement may also be modified by Thalmic in future versions of the Software, and you are responsible for ensuring that you and your use of the Software are in compliance with the then-current version.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND FROM THALMIC. THALMIC EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT, OR ANY OTHER WARRANTY OR CONDITION ARISING BY STATUTE, CUSTOM OR USAGE OF TRADE RELATED TO THE SOFTWARE PROVIDED HEREUNDER. THALMIC SPECIFICALLY DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. In particular, you acknowledge that Thalmic does not warrant or recommend the Myo armband for use in any application (such as vehicular control) for which a failure or fault may result in death, personal injury or damage to property.
YOUR USE OF THE SOFTWARE AND ANY MATERIAL PRODUCED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH YOUR USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY PERSON OR PROPERTY OR LOSS OF DATA THAT RESULTS FROM SUCH USE.
Some jurisdictions may not allow the exclusion or limitation of implied warranties and conditions. To the extent permitted by law, any implied warranties or conditions relating to the Software, to the extent that they cannot be excluded as set out above, are limited to thirty (30) days from the date that you first download the Software.
The only type of damages that can be recovered against Thalmic arising from or related to this Agreement (including without limitation in relation to the Myo armband, the Software and your use under this Agreement thereof), shall be your direct damages, if any, to the extent arising from gross negligence of or wilful misconduct by Thalmic. In no event shall the aggregate liability of Thalmic exceed the amount paid by you for the portion of the Software that gave rise to the claim. EXCEPT FOR THE LIMITED DIRECT DAMAGES SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THALMIC BE LIABLE FOR ANY DAMAGES WHATSOEVER, TO YOU OR TO ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, COMPUTER OR MOBILE DEVICE FAILURE, PROBLEMS, LOSS OR DAMAGE ASSOCIATED WITH ANY USE OF THE SOFTWARE OR THE MYO ARMBAND, OR OTHER PECUNIARY LOSS ARISING OUT OF OR RELATED TO THIS AGREEMENT), WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN INCLUDING WITHOUT LIMITATION THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF THALMIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In order to continually improve the performance of the Software and/or the Myo armband, Thalmic may make updates to the Software and/or to the firmware on-board the Myo armband. When an internet connection is available and the Software is running, the Software may automatically check for such updates and notify you of the availability of any new update. Depending on the Software and/or the version of the Software, the Software may either directly download any such updates you select or provide you with a link to a website where such updates may be downloaded.
You agree to indemnify, defend and hold harmless Thalmic, its parents, subsidiaries, affiliates, officers and employees, including costs and attorneys' fees, from any claim or demand made by any third party due to or arising out of: (a) your access, use or misuse of the Software and/or the Myo armband, (b) any breach of this agreement by you, or (c) your violation of any third-party rights or any applicable laws. Thalmic reserves the right, at your expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Thalmic, at your expense, in asserting any available defences.
If you want to terminate this agreement, you may do so by ceasing your use of the Software. Thalmic may, at any time, terminate this agreement with you if: (A) you have breached any provision of this agreement; (B) Thalmic is required to do so by law; (C) Thalmic decides to no longer make available the Software or certain parts of the Software to users in the country in which you are resident or from which you use the Software; or (D) the provision of the Software to you by Thalmic is, in Thalmic's sole discretion, no longer commercially viable. Upon termination of this Agreement, you will cease all use of the Software and destroy and/or permanently delete all copies of the Software in your possession.
Nothing herein shall be deemed to be a substitution for any other rights and remedies that Thalmic may have in law or equity (including injunctive relief, where applicable), and Thalmic shall have no liability to you arising from Thalmic’s termination of this Agreement in accordance with this Section 11. Any provision of this Agreement which expressly states that it is to continue in effect after termination or expiration of this Agreement, or which by its nature would survive the termination or expiration of this Agreement, shall do so.
This agreement constitutes the whole legal agreement between the parties governing your use of the Software and completely replaces any prior agreement(s) between the parties in relation to Software. This agreement is governed by the laws of the Province of Ontario, Canada, without regard to conflict of laws provisions, and you agree to submit to the exclusive jurisdiction of the courts located in the Province of Ontario, Canada. The parties expressly agree that neither the United Nations Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to this agreement. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this agreement shall continue in full force and effect. You agree that if Thalmic does not exercise or enforce any legal right or remedy which is contained in this agreement (or which Thalmic has the benefit of under any applicable law), this will not be taken to be a waiver of any Thalmic rights and that those rights or remedies will still be available to Thalmic. The rights granted in this agreement may not be assigned or transferred by either party without the prior written approval of the other party. Neither party shall be permitted to delegate their responsibilities or obligations under this agreement without the prior written approval of the other party. It is the express will of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.