Full Terms & Conditions of Sale
These terms and conditions of sale, together with the terms set forth in the applicable order form through which you order our products, whether via an online shopping site or a more traditional order form (the “Order Form” and collectively with these terms and conditions of sale, these “Terms”) apply to the sale of the Galea headset product (the “Product” or “Products”) and the related Software Suite (as defined in Section 3) made available by OpenBCI, Inc. (“OpenBCI”, “we”, “us” or “our”) to the applicable customer purchasing the Product and the Software Suite as designated on the Order Form (“Customer” or “you”). These Terms, together with the Order Form to which they are attached and the EULA (as defined in Section 3), comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customer's general terms and conditions of purchase or any other terms Customer may attempt to introduce regarding the subject matter herein. If there is any conflict between the terms of the Order Form and the terms and conditions of sale in this document and/or the EULA, the terms of the Order Form will govern and control.
2. PLACEMENT AND ACCEPTANCE OF ORDERS
You agree that your order is an offer to buy, under these Terms, all listed Products and/or the Software Suite in your Order Form. All orders must be accepted by us or we will not be obligated to sell the Products to you. We may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
3. OPENBCI SOFTWARE
Our proprietary software (meaning the version made available to you on the date you purchase the Product) that enables customers to track, monitor and view the activities and results of using the Product as well as our software development kit used to export data from the hardware to a variety of platforms (the “Software Suite”) is made available to You in connection with your purchase of the Product, as designated on the Order Form. Your use of the Software Suite is governed by and subject to your acceptance of and compliance with the Galea Software Suite End User License Agreement which can be found at: https://docs.galea.co/terms/software-eula (the “EULA”).
4. ADDITIONAL SOFTWARE
The Product a includes a third-party hardware component that has its own separate software program that is made available to the Customer from the third-party provider (the “Third Party Software”). Such Third Party Software program is subject to its own license terms and the applicable flow through provisions which can be found at: https://varjo.com/eula/ (“Third Party Software EULA”). If Customer does not agree to abide by the applicable Third Party Software EULA, then Customer should not use such Third Party Software.
5. SUPPORT, UPDATES AND BUG FIXES
OpenBCI will provide Customer with the support services described on the Order Form, which at a minimum will include, (i) self-help documentation and guides which will be provided via https://docs.galea.co or another URL identified by OpenBCI, and (2) support desk assistance (the “Help Desk”). All Help Desk inquiries shall be sent by contacting email@example.com. OpenBCI will reply to and assist with initial support inquiries. OpenBCI may refer Customer to partners for additional support on specific aspects of the Product. We will use commercially reasonable efforts to respond to Customer inquiries for support in a timely and complete manner. If OpenBCI creates any modifications, upgrade, fixes or other innovations it would only to the Software Suite and/or the OpenBCI firmware embedded in the Product (collectively, the “OpenBCI Software”). OpenBCI has no obligation to provide, and does not guarantee any, bug fixes or new improvements to the OpenBCI Software. If OpenBCI develops any bug fixes, improvements or updates to the OpenBCI Software that it makes generally available to all customers of the Product, OpenBCI will pass any such fixes through to Customer. If included in your Order Form, for an additional fee OpenBCI will provide additional one-on-one technical support and training generally consisting of trouble shooting in real time (“Enhanced Support”). Unless otherwise set forth on the Order Form, OpenBCI will provide Enhanced Support to Customer at OpenBCI’s then-current hourly rates and Customer is required to purchase a minimum of two hours if it elects to purchase any Enhanced Support. If desired, the parties may negotiate a more robust consulting arrangement, the terms of which would be set forth in a mutually agreed upon separate agreement.
6. PRICES & TAXES
The price(s) charged for a Product will be the price(s) in effect at the time your order is placed and will be set forth in the Order Form. Posted prices do not include taxes or charges for shipping and handling. All such taxes, shipping and handling fees will be charged to Customer at the rate applicable at the date of purchase, unless purchases are made on behalf of a tax-exempt organization. In the event Customer believes that it is exempt from obligations to pay such taxes, Customer shall send its tax-exempt certificate to firstname.lastname@example.org BEFORE placing an order; we do not refund sales tax after purchase.
7. PAYMENT TERMS & CHANGES TO ORDERS
Customer will be responsible for all fees described in Section 6, as set forth in the Order Form, which (except with respect to any subscription fees that are payable on a recurring basis, as designated in the Order Form and except as otherwise may be specified in the applicable Order Form), Customer shall pay to OpenBCI within thirty (30) days after signing the Order Form through a method acceptable to OpenBCI. An Order Form will not be considered accepted by OpenBCI, and OpenBCI will have no obligations to Customer, until OpenBCI receives such payment in full. To make a change to your order, please email email@example.com as soon as possible. We cannot guarantee that we can satisfy the request, but we will do our best if contacted in a timely fashion. Notwithstanding anything to the contrary contained herein, in the event that your Order Form gave you the option to pay a nonrefundable deposit at the time of your pre-order rather than the full price, You agree that OpenBCI shall not ship the Product to you until you have paid the remainder of the amount owed by you for such Product. If you do not pay such remainder within thirty (30) days of receipt of notice from OpenBCI that the Product is ready for shipment, then you forfeit Your deposit and OpenBCI shall have no obligation to ship the Product to you.
8. SHIPPING & DELIVERY
We will arrange for shipment of the Products to you. All OpenBCI orders ship from the US. You will pay all shipping and handling charges specified during the ordering process. Shipping is calculated based on a number of factors including the size of the package, the postage carrier selected, and the destination. Shipping charges and delivery methods will be as set forth in the Order Form or other quote provided by OpenBCI. Note that shipping charges shown at checkout do not include unforeseen delivery costs such as import duty and customs taxes. Countries outside the United States may be subject to import duties and customs taxes per the laws of your country of residence. As the customer, you are responsible for these charges. We will not intervene with customs procedures, per the import laws of your country of residence. Please be advised that Product prices do not include customs fees, taxes, brokerage fees, or any customs clearance fees. This is the responsibility of the Customer. Shipping and delivery dates are non-binding estimates only, that are subject to change, and cannot be guaranteed. OpenBCI shall in no case be liable for damages nor shall the Customer have any right to rescind an order for any delay in delivery. Title and risk of loss pass to you upon our transfer of the Products to the carrier.
9. PRODUCT WARRANTY AND DISCLAIMER
For a period of twelve (12) months starting on the date Customer receives the Product (the “Warranty Period”), OpenBCI will repair or replace, at OpenBCI’s sole discretion, any Product that is defective in material or substantially fails to perform in accordance with the specifications provided by OpenBCI. The foregoing shall be Customer’s sole and exclusive remedy for any Product defect or non-conformance. The foregoing warranty does not apply (i) in instances where the defect arises because Customer failed to follow OpenBCI’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product, or if Customer or any unauthorized third party alters or repairs the Product(s) without the prior written consent of OpenBCI; or (ii) to any Third Party Software or any other third-party component embedded within the Product. The Warranty Period may be extended for an additional six (6) months if Customer elects to purchase such extended warranty on the Order Form and pays the corresponding additional fee stated therein. Notwithstanding the foregoing, OpenBCI makes no warranty whatsoever with respect to the Products, including any (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; (c) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise. OpenBCI, Inc. provides the Products under the following conditions: OpenBCI products are not medical, clinical, or diagnostic devices (as designated by the U.S. Food & Drug Administration or otherwise), nor are they intended for medical diagnosis and are provided to you "as is," and we make no express or implied warranties whatsoever with respect to its functionality, operability, or use, including, without limitation, any implied warranties, fitness for a particular purpose, or infringement.
You may request to return Products for refunds or exchanges within thirty (30) days of the delivery date of such Product by contacting us at firstname.lastname@example.org indicating the issue or reason for return. If you request a refund, we will assess and determine a refund amount in our sole discretion based on the condition of the Product(s) and the logistics and cost of refurbishing and restocking. Shipping costs are non-refundable. For returns, we will provide the return shipping address. Send us the items in the original box (or a different box, as long as it's unmarked) to the designated address. If you received the wrong or damaged item, we will reimburse you for the return shipping and send you a replacement Product at no additional charge. For all other returns, (i) you are responsible for the cost of return shipping; (ii) all such returns are contingent on the resale-able condition of the Products; and (iii) you will be charged (and agree to pay) a restocking fee of twenty percent (20%) of the price you paid for the returned Product(s). OpenBCI is not responsible for lost shipments.
11. LIMITATION OF LIABILITY
IN NO EVENT WILL OPENBCI BE LIABLE TO CUSTOMER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE, ARISING OUT OF THE MANUFACTURE, SALE, SUPPLYING OR FAILURE OR DELAY IN SUPPLYING OF THE PRODUCTS OR SERVICES RELATED THERETO, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF OPENBCI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. UNDER NO CIRCUMSTANCES WILL OPENBCI’S TOTAL LIABILITY TO CUSTOMER FROM ANY AND ALL CAUSES (INCLUDING NEGLIGENCE) EXCEED THE TOTAL AMOUNT PAID BY END USER FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM.
(a) The Customer shall indemnify, defend and hold harmless OpenBCI and its employees, shareholders, officers, directors, affiliates, subcontractors and other agents against any and all claims, liabilities, damages, costs and expenses arising out of or relating to failure to use or operate the Products in accordance with these Terms and/or any other written instructions provided by OpenBCI.
(b) OpenBCI shall indemnify, defend and hold harmless Customer and its employees, shareholders, officers, directors, affiliates, subcontractors and other agents against any and all claims, liabilities, damages, costs, and expenses arising out of or relating to infringement or misappropriation by the Products of U.S. intellectual property rights of any third party.
13. FORCE MAJEURE
Neither party shall be liable to any person for failure to perform any of its obligations under these Terms when the failure is caused in whole or in part by the occurrence of any contingency beyond the reasonable control of such party, including but not limited to war or hostility; sabotage, insurrection, riot or other act of civil disobedience, crime, tort or other unlawful act; act of a public enemy; failure or delay in transportation; act of any government or any agency, subdivision or branch thereof; accident, fire, explosion, flood, storm or other act of God.
14. INTELLECTUAL PROPERTY
Except as otherwise provided in these Terms, Customer acknowledges that any drawings, sketches, quotations and other documents supplied by OpenBCI with the Products and the actual design and construction of the Products constitutes valuable intellectual property of OpenBCI and its licensors as applicable, which is and will remain owned by OpenBCI and its licensors as applicable, and, as such, Customer agrees not to (a) challenge, damage or otherwise threaten such rights; (b) use or disclose, directly or indirectly, such materials, design and construction to any third parties without the prior written consent of OpenBCI; or (c) copy or otherwise manufacture the Products, or any materials distributed with or otherwise relating to the Products. OpenBCI reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Products.
If Customer or any of its employees or contractors sends or transmits any communications or materials to OpenBCI by mail, email, telephone, or otherwise, suggesting or recommending changes to the Product, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), OpenBCI is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to OpenBCI on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and OpenBCI is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although OpenBCI is not required to use any Feedback.
16. CHOICE OF LAW
These Terms and your use of the Products are governed by the laws of the State of New York, United States (without regard to the conflict of laws provisions of such state). The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
17. EXCLUSIVE FORUM AND CONSENT TO JURISDICTION
Any dispute arising out of these Terms shall be adjudicated solely and exclusively in the jurisdiction of the state or federal courts in New York, New York, United States. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the courts of the State of New York.
You may not assign any of your rights or delegate any of your obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves you of any of your obligations under these Terms. The failure by us to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any right or provision will be effective only if in writing and signed by a duly authorized representative of OpenBCI. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.