TERMS OF USE

PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING OR USING THE SITE, YOU AGREE TO BE BOUND BY THE TERMS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SITE.

These Terms of Use (“Terms”) apply to your access to, and use of, the websites of NEURONYTICS, INC. and its subsidiaries and affiliated companies (“NEURONYTICS,” “we” or “us”), including www.NEURONYTICS.io and www.STO.NEURONYTICS.io (collectively, the “Site”). These Terms do not apply to the NEURONYTICS client software or the NEURONYTICS distributed accessed through that software (collectively, “NEURONYTICS Technology”), which may be accessed via our Site. Additionally, these Terms do not alter the terms or conditions of any other agreement you may have with NEURONYTICS for products, services or otherwise

NEURONYTICS reserves the right to change or modify the terms and conditions contained in these Terms or any policy or guideline of the Site, at any time and in its sole discretion. We will provide notice of these changes by posting the revised Terms to the Site and changing the “Last Revised” date at the top of the Terms, or by providing other means of notice as NEURONYTICS will determine each time in its sole discretion. Using a particular form of notice in some instances does not obligate us to use the same form in other instances. Any changes or modifications will be effective immediately upon posting the revisions to the Site and will apply to your subsequent use of the Site. You waive any right you may have to receive specific notice of such changes or modifications. Your continued use of this Site will confirm your acceptance of such changes or modifications; therefore, you should review the Terms and applicable policies whenever you use the Site to understand the terms that apply to such use. The most current version of the Terms can be reviewed by clicking on the “Terms of Use” hypertext link located at the bottom of our web pages. If you do not agree to the Terms in effect when you access or use the Site, you must stop using the Site.

ELIGIBILITY

By accessing or using the Site, you represent and warrant that you have not previously been suspended or removed from the Site. You represent and warrant that you are not: (a) located in, under the control of, or a national or resident of any country to which the United States has embargoed goods or services; (b) identified as a “Specially Designated National”, or (c) placed on the Commerce Department’s Denied Persons List. You further represent and warrant that you will not use the Site if the laws of your country prohibit you from doing so in accordance with these Terms.

REGISTRATION AND ACCOUNT

In order to access and use certain features on the Site, you may have to create an account with NEURONYTICS (“Account”). You agree to: (a) provide accurate, current and complete information when creating or updating an Account; (b) maintain and promptly update your Account information; (c) maintain the security and confidentiality of your login credentials and restrict access to your Account and your computer; (d) promptly notify NEURONYTICS if you discover or otherwise suspect any security breaches related to the Site; and (e) take responsibility for all activities that occur under your Account and accept all risks of unauthorized access.

PRIVACY POLICY

Please refer to our Privacy Policy for information about how NEURONYTICS collects, uses and discloses information about its users.

COPYRIGHT AND LIMITED LICENSE

Unless otherwise indicated on the Site, the Site and all content and other materials on the Site, including, without limitation, the NEURONYTICS logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “NEURONYTICS Materials”) are the proprietary property of NEURONYTICS or its licensors or users and are protected by U.S. and international copyright laws.

You are granted a limited, non-sublicensable license to access and use the Site and NEURONYTICS Materials; subject to these Terms. Except as expressly permitted on the Site, in these Terms or otherwise in writing by NEURONYTICS, such license does not include: (a) any resale or commercial use of the Site or the NEURONYTICS Materials; (b) the distribution, public performance or public display of any NEURONYTICS Materials; (c) modifying or otherwise making any derivative uses of the Site and the NEURONYTICS Materials, or any portion thereof; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Site, the NEURONYTICS Materials or any information contained therein; or (f) any use of the Site or the NEURONYTICS Materials other than for its intended purpose. Any use of the Site or the NEURONYTICS Materials other than as specifically authorized herein, without the prior written permission of NEURONYTICS, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.

REPEAT INFRINGER POLICY

In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, NEURONYTICS has adopted a policy of terminating, in appropriate circumstances and in NEURONYTICS’s sole discretion, users who are deemed to be repeat infringers. NEURONYTICS may also, in its sole discretion, limit access to the Site and/or terminate the Account of any user who infringes any intellectual property rights of others, whether or not there is any repeat infringement.

COPYRIGHT COMPLAINTS

If you believe anything on the Site infringes upon any copyright which you own or control, you may contact us at [email protected]

TRADEMARKS

“NEURONYTICS,” “NEURONYTICS, INC.” and the NEURONYTICS logos and any other NEURONYTICS product or service name, logo or slogan contained in the Site are trademarks or service marks of NEURONYTICS (the “NEURONYTICS Marks”) and may not be copied, imitated or used, in whole or in part, except as expressly permitted in these Terms or on the Site or with the prior written permission of NEURONYTICS. You may not use any metatags or any other “hidden text” utilizing any NEURONYTICS Marks without our prior written permission. In addition, the look and feel of the Site, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of NEURONYTICS and is part of the NEURONYTICS Marks and may not be copied, imitated or used, in whole or in part, without our prior written permission except as expressly permitted herein or on the Site. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Site are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the written permission of the applicable trademark holder. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.

THIRD PARTY CONTENT

NEURONYTICS and its users may provide third party content on the Site and may provide links to web pages and content that are not owned or controlled by NEURONYTICS, including but not limited to NEURONYTICS Technology and any third party advertisements or promotions (collectively the “Third Party Content”) as a service to those interested in this information. NEURONYTICS does not control, endorse or adopt any Third Party Content and makes no representation or warranties of any kind regarding the Third Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that NEURONYTICS is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review any Third Party Content. Users use such Third Party Content contained therein at their own risk. Your business dealings or correspondence with, or participation in promotions of, any third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third parties. NEURONYTICS is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or promotions or as the result of the presence of such Third Party Content on the Site.

FEEDBACK

You acknowledge and agree that any materials, including but not limited to questions, comments, feedback, suggestions, ideas, plans, notes, drawings, original or creative materials or other information, regarding NEURONYTICS or the Site (collectively, “Feedback”) that are provided by you, whether by email, posting to the Site or otherwise, are non-confidential and will become the sole property of NEURONYTICS. NEURONYTICS will own exclusive rights, including all intellectual property rights, and will be entitled to the unrestricted use and dissemination of such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

INDEMNIFICATION

You agree to defend, indemnify and hold harmless NEURONYTICS, its independent contractors, service providers and consultants, and their respective directors, employees and agents, from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) your use of the Site; (b) any User Content or Feedback you provide; (c) your violation of these Terms; (d) your violation of any rights of another; or (e) your conduct in connection with the Site. Some jurisdictions limit consumer indemnities, so some or all of the indemnity provisions above may not apply to you. If you are obligated to indemnify us, we will have the right, in our sole and unfettered discretion, to control any action or proceeding and determine whether we wish to settle it, and if so, on what terms.

DISCLAIMER OF WARRANTIES

NEURONYTICS PROVIDES NO GUARANTEE AS TO THE PERFORMANCE OR THE UNINTERRUPTED AVAILABILITY OF THE SITE OR THE NEURONYTICS MATERIALS. THE SITE AND NEURONYTICS MATERIALS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEURONYTICS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITE AND THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. NEURONYTICS DOES NOT REPRESENT OR WARRANT THAT NEURONYTICS MATERIALS OR THE SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR- FREE. WHILE NEURONYTICS ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE SITE SAFE, NEURONYTICS CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY- RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.

NEURONYTICS reserves the right to change any and all content contained in the Site at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by NEURONYTICS.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THE DISCLAIMERS IN THIS SECTION MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY

IN NO EVENT WILL NEURONYTICS, ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SITE, THE NEURONYTICS MATERIALS OR THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM NEURONYTICS, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO NEURONYTICS’S RECORDS, PROGRAMS OR SITE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF NEURONYTICS, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO NEURONYTICS FOR ACCESS TO OR USE OF THE SITE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY IN CONTRACTS WITH CONSUMERS, SO SOME OR ALL OF THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

MODIFICATIONS TO THE SITE

NEURONYTICS reserves the right to modify or discontinue, temporarily or permanently, the Site or any features or portions thereof without prior notice. You agree that NEURONYTICS will not be liable for any modification, suspension or discontinuance of the Site or any part thereof.

APPLICABLE LAW AND VENUE

These Terms and your use of the Site will be governed by and construed in accordance with the laws of Delaware, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Terms not subject to arbitration (as set forth below), will be filed only in the state and federal courts located in Delaware and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Terms.

ARBITRATION

PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH NEURONYTICS AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF.
You and NEURONYTICS agree to arbitrate any dispute arising from these Terms or relating to the Site, except that you and NEURONYTICS are not required to arbitrate any dispute in which either party seeks equitable or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A
JURY TRIAL. You and NEURONYTICS agree that you will notify each other of any dispute within thirty (30) days of when it arises, that you will attempt informal resolution prior to any demand for arbitration, that any arbitration will occur in Delaware and that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of Privacy Shield. You and NEURONYTICS also agree that the state or federal courts in Delaware have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. In any arbitration, the parties will not seek discovery from each other, and the arbitrator shall not allow parties to engage in discovery; rather, each party shall disclose the evidence supporting their positions at some mutually agreeable time and date prior to the final hearing. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by these Terms. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person, if NEURONYTICS is a party to the proceeding. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then that language shall be deemed to have been dropped from the Terms and the remaining obligations relating to arbitration shall continue in full force and effect.

TERMINATION AND SUSPENSION

Notwithstanding any of these Terms, NEURONYTICS reserves the right, without notice and in its sole discretion, to terminate or suspend your right to use the Site, and to block or prevent your future access to, and use of, the Site.

SURVIVAL

Sections 4 (Assumption of Risk with NEURONYTICS), 6 (User Content), 9 (Trademarks),11 (Third Party Content), 12 (Feedback), 13 (Indemnification), 14 (Disclaimer of Warranties), 15 (Limitation on Liability), 17 (Applicable Law), 18 (Disputes), this Section 20 (Survival) and Section 21 (Severability) will survive any termination or expiration of these Terms.

SEVERABILITY

If any provision of these Terms is deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.

QUESTIONS & CONTACT INFORMATION

Questions or comments about the Site or these Terms may be directed to NEURONYTICS by emailing [email protected]

Last Revised: [11/18/2018]