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Software License Agreements (EULAs)

Mindtooth EEG App: Software End User License Agreement

This Software License Agreement (the “Agreement”) is entered by and between BrainSigns Srl a company with offices located at Via Tirso, Rome (“BrainSigns“) and Licensee. BrainSigns and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party“, and agree that the following terms and conditions apply to the services provided under this Agreement.

WHEREAS, Licensor desires to license the Software described in Exhibit A attached hereto to Licensee; and

WHEREAS, Licensee desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions

(a) “App1” means the Application Mindtooth EEG App, as described in Exhibit A.

(b) “Documentation” means user manuals, handbooks, training material and installation guides relating to the Software provided by BrainSigns to Licensee electronically for the use and operation of the Software.

(c) “Mindooth Tablet” means the tablet included in the purchase of the App1, on which the Software is installed, and which will be delivered to and owned by Licensee.

(d) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights, and all similar or equivalent rights or forms of protection, in any part of the world.

(e) “Support Services” means the support and maintenance services provided by BrainSigns to Licensee pursuant to this Agreement and Exhibit B.

(f) “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that BrainSigns may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version.

(g) “New Version” means any new version of the Software that BrainSigns may from time to time introduce and market generally as a distinct licensed product (as may be indicated by BrainSigns’ designation of a new version number), and which BrainSigns may make available to Licensee at an additional cost under a separate written agreement.

(h) “Order Form” means the document by which Licensee purchases the Application Mindtooth EEG App.

(i) “Software” means the Mindtooth Software described in Exhibit A in object code format, including any updates provided by BrainSigns to Licensee pursuant to this Agreement.

(j) “Term” shall mean the duration of the present License Agreement.

(k) “Upgrades” means any updates, bug fixes, patches, or other error corrections to the Software that BrainSigns makes available.

2. Grant of License

2.1 During the Term, subject to and conditioned on compliance with all other terms and conditions of this Agreement, Licensee will receive a non-exclusive, non-sublicensable, and non-transferable, worldwide license of the Software solely for your internal business operations.

2.2 Licensee acknowledges that BrainSigns will not be delivering copies of the Software to Licensee but only one copy of the Software already installed into the Mindtooth Tablet.

3. Use Restrictions

Licensee shall not, and shall not permit anyone to, use the Software or Documentation for any purposes beyond the scope of this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, correct, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or the Documentation; (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or any other applicable law; (vi) use the Software for purposes of: (a) benchmarking or competitive analysis of the Software; (b) developing, using, or providing a competing software product or service; or (c) any other purpose that is to BrainSigns’ detriment or commercial disadvantage; and (vii) use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage.

4. Reservation of Rights

BrainSigns reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software.

5. Delivery and Access

BrainSigns shall deliver to Licensee one copy of the Software, installed on the Mindtooth Tablet. The access of the SaaS Services is provided by BrainSigns with characteristics and corresponding prices described on the website https://shop.brainproducts.com (or shared via email upon request) at the time and manner established in the Order Form.

6. Licensee Responsibilities

(a) General. Licensee is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.

(b) Compliance with Laws. Licensee shall comply with all applicable local, state, national and foreign laws in connection with its use of the Software, including those laws related to data privacy, international communications, and the transmission of technical or personal data.

(c) Unauthorized Use; False Information. Licensee shall report to BrainSigns immediately and use reasonable efforts to stop any unauthorized use of the Software that is known or suspected by Licensee and not provide false identity information to gain access to or use the Software.

(d) Third-Party Products. BrainSigns may use certain Third-Party Products with the Software. For purposes of this Agreement, such Third-Party Products are subject to their own license terms through provisions referred to in Exhibit A.

7. Support and Maintenance releases

(a) BrainSigns shall provide Licensee with the support and maintenance services described on Exhibit B.

(b) For at least 10 (ten) years starting from the Effective Date, Licensor will provide Licensee with all Maintenance Releases (including updated Documentation) that Licensor may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases provided by Licensor to Licensee are deemed Software. Licensee will install all Maintenance Releases as soon as practicable after receipt. Licensee does not have any right hereunder to receive any New Versions of the Software that Licensor may, in its sole discretion, release from time to time. Licensee may license any New Version at Licensor’s then-current list price and subject to a separate license agreement, provided that Licensee is in compliance with the terms and conditions of this Agreement.

8. Fees

The use of the Software version including APP 1 will be granted by the purchase price specified in the Order Form, without the payment of any further fee by Licensee. In order to also obtain the right to use APP2, Licensee shall pay BrainSigns the fees set forth in Exhibit A.

9. Confidential Information

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information[, whether orally or in written, electronic, or other form or media/in written or electronic form or media], [ that is/ and whether or not] marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

10. Intellectual Property

10.1. Ownership

(a) Licensee acknowledges that BrainSigns owns all right, title, and interest, including all intellectual property rights, in and to the Software and the Documentation.

(b) Licensee hereby unconditionally and irrevocably assigns to BrainSigns its entire right, title, and interest in and to any Intellectual Property Rights that Licensee may now or hereafter have in or relating to the use of the Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

(c) Feedback. If Licensee or any of its employees or contractors sends or transmits any communications or materials to BrainSigns by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), BrainSigns is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to BrainSigns on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and BrainSigns 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 BrainSigns is not required to use any Feedback.

10.2 Licensee Cooperation and Notice of Infringement. Licensee shall, during the Term:

(a) safeguard the Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;

(b) at BrainSigns expense, take all such steps as BrainSigns may reasonably require to assist BrainSigns in maintaining the validity, enforceability and BrainSigns ownership of the Intellectual Property Rights in the Software and Documentation;

(c) promptly notify BrainSigns in writing if Licensee becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of BrainSigns Intellectual Property Rights in or relating to the Software or Documentation; or (ii) any claim that the Software or Documentation, including any production, use, marketing, sale or other disposition of the Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and

(d) fully cooperate with and assist BrainSigns in all reasonable ways in the conduct of any action by BrainSigns to prevent or abate any actual or threatened infringement, misappropriation or violation of BrainSigns rights in, and to attempt to resolve any actions relating to, the Software or Documentation, including having Licensee’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.

10.3 No Implied Rights

Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software or Documentation.

11. Limited Warranties and Warranty Disclaimer

(a) BrainSigns represents and warrants that (i) the Software will perform materially as described in the Documentation; and (ii) at the time of delivery the Software does not contain any virus or other malicious code that would cause the Software to become inoperable or incapable of being used in accordance with the Documentation. THE FOREGOING WARRANTIES DO NOT APPLY, AND BRAINSIGNS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. BRAINSIGNS DOES NOT GUARANTEE THAT THE SOFTWARE WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT BRAINSIGNS WILL CORRECT ALL SOFTWARE ERRORS. LICENSEE ACKNOWLEDGES THAT BRAINSIGNS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY BRAINSIGNS (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. BRAINSIGNS OR ANY OF ITS SERVICE PROVIDERS SHALL NOT BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF LICENSEE’S OR ANY LICENSEE’S DATA, FILES, OR PROGRAMS.

(b) The warranties set forth in Section 11(a) do not apply and become null and void if Licensee breaches any provision of this Agreement, or if Licensee, or any other person provided access to the Software by Licensee or any Authorized Licensee, whether or not in violation of this Agreement: (i) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by BrainSigns in writing; (ii) modifies or damages the Software; or (iii) misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by BrainSigns in writing.

(c) If, during the period specified in Section 11(a), any Software fails to comply with the warranty in Section 11(a), and such failure is not excluded from warranty pursuant to Section 11(b), BrainSigns shall, subject to Licensee’s promptly notifying BrainSigns in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Licensee provides BrainSigns with all information BrainSigns reasonably requests to resolve the reported failure, including sufficient information to enable the BrainSigns to recreate such failure. The remedies set forth in this Section 11(c) are Licensee’s sole remedies and BrainSigns’ sole liability under the limited warranty set forth in Section 11(a).

(d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(a), BRAINSIGNS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BRAINSIGNS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(a), BRAINSIGNS MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

12. Indemnification

(a) Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at BrainSigns option, defend BrainSigns from any and all losses, damages, liabilities, and costs (“Losses”) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) based on Licensee’s, or any Authorized Licensee’s: (i) negligence or willful misconduct; or (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment or technology not provided by BrainSigns or authorized by BrainSigns in writing; (iv) use of the Software or Documentation against privacy laws, defamation laws, or any other applicable provision of law; (v) modifications to the Software not made by BrainSigns; or (vi) use of any version other than the most current version of the Software or Documentation delivered to Licensee. Licensee may not settle any Third-Party Claim against BrainSigns unless such settlement completely and forever releases BrainSigns from all liability with respect to such Third-Party Claim or unless BrainSigns consents to such settlement, and further provided that BrainSigns will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(b) Sole Remedy. THIS SECTION 12 SETS FORTH LICENSEE’S SOLE REMEDIES AND BRAINSIGNS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY PRIVACY OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

13. Limitations of Liability

IN NO EVENT WILL BRAINSIGNS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BRAINSIGNS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BRAINSIGNS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED 2 TIMES THE TOTAL AMOUNTS PAID TO BRAINSIGNS PURSUANT TO THE ORDER FORM.

14. Term and Termination

(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions and has an indefinite term.

(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) BrainSigns may terminate this Agreement, effective on written notice to Licensee, if Licensee breaches any of its obligations under Section 3, Section 4, Section 6, Section 9 or Section 10;
(ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Licensee’s obligations under Section 9, Licensee shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to the Licensor that the Software and Documentation has been deleted or destroyed.

(d) Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(d), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

15. Miscellaneous

(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page on the Order Form of the Software (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s]reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, hostilities terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions in effect on or after the date of this Agreement.

(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of Italy without giving effect to any choice or conflict of law provision or rule that would require or permit the application of other laws. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the Court of Milano and each Party irrevocably submits to the [exclusive] jurisdiction of such courts in any such suit, action, or proceeding.

(g) Assignment. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of BrainSigns, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

(h) Publicity. BrainSigns may include Licensee’s name and logo in its Licensee lists and on its website.

(i) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date. Agreement to be formally accepted by the Licensee before the payment.

EXHIBIT A

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.

1. DESCRIPTION OF SOFTWARE:

The Mindtooth Lite System has been developed and tested within the FTI-H2020 Mindtooth project 950998. The Software of Mindtooth Lite System includes two versions of the product.

The present License Agreement includes:

1) Mindtooth App1

Application developed for:

  • acquisition and display of the EEG signal from the Mindtooth Touch headset
  • saving data locally
  • EEG data streaming via Lab Streaming Layer protocol
EXHIBIT B

SUPPORT AND MAINTENANCE SERVICES

The Schedule sets out the terms on which the BrainSings will provide Support and Maintenance Services to the Licensee for at least 10 (ten) years starting from the Effective Date.

1. BrainSigns shall provide to Licensee the following:

  • Licensee manual in English and video tutorials both linkable within the APP
  • Assistance service that can be activated via email, with reply in 3 working days to understand and classify the problem and subsequent management of the problem in pre-established times.

2. Where the Licensee considers on reasonable grounds that the Software is not materially performing in conformity with the Documentation, BrainSigns may:

a) provide email support in the form of consultation, assistance and advice; and
b) use reasonable efforts to assist in the resolution of the issue (taking into account the nature and severity of the issue).

3. The provision of support maintenance services by BrainSigns under art. 7 of the Agreement is conditional on the Licensee:

a) first using reasonable efforts to resolve the issue by referring to the Documentation; and
b) contacting BrainSigns during Business Days and hours (Monday to Friday from 9:00 to 18:00 by Email: sw.assistance@brainsigns.com

4. BrainSigns may, at its discretion, from time to time provide the Licensee with Upgrades, which shall be installed by BrainSigns.

Mindtooth Neurometrics App: Software as a Service License Agreement

PLEASE READ THIS AGREEMENT BEFORE USING BRAINSIGNS’S SERVICES. BY ACCESSING OR USING BRAINSIGNS’ MINDTOOTH LITE SOFTWARE SERVICES, YOU (“the Customer”) SIGNIFY ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.

This Software as a Service Agreement (the “Agreement“), is entered by and between BrainSigns Srl a company with offices located at Via Tirso, Rome (“BrainSigns“) and Customer. BrainSigns and Customer may be referred to herein collectively as the “Parties” or individually as a “Party“, and agree that the following terms and conditions apply to the services provided under this Agreement.

1. Definitions

(a) “Affiliate” of an entity means any other company/entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.

(b) “App2” means the Application Mindtooth Neurometrics App as described in Exhibit A, object of this software as-a-service license.

(c) “Documentation” means User manuals, handbooks, training material and installation guides relating to the Software provided by BrainSigns to Customer electronically for the use and operation of the SaaS Services.

(d) “Effective Date” means the date on which BrainSigns has made the SaaS Services, or any part thereof, accessible to Customer.

(e) “Cloud” means the cloud platform, licensed and operated by BrainSigns or its subcontractors, on which the backend of the Software is installed,.

(f) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights, and all similar or equivalent rights or forms of protection, in any part of the world.

(g) “Maintenance Services” means the support and maintenance services provided by BrainSigns to Customer pursuant to this Agreement and Exhibit B.

(h) “Order Form” means the document by which Customer purchases the SaaS Services pursuant to a purchase order of the APP 2 (Mindtooth Neurometrics App).

(i) “Personal Data” means the data and bio signals of human beings measured by the Neurometrics through the use of the SaaS Services, stored by Customer in a pseudo-anonymized manner in the Cloud.

(j) “SaaS Services” means BrainSigns’ online software-as-a-service solution provided to Customer via internet, as specified in Exhibit A.

(k) “Software” means any proprietary application version of the Software of the Mindtooth Lite System described in Exhibit A in object code format, including any Upgrades provided by BrainSigns to Customer pursuant to this Agreement.

(l) “Subscription Term” shall mean that period specified in the Order Form.

(m) “Upgrades” means any updates, bug fixes, patches, or other error corrections to the Software that BrainSigns makes available during the Subscription Term free of charge to all Customers of the SaaS Services.

2. SaaS License

2.1 Subject to and conditioned upon compliance with all terms and conditions of this Agreement, Customer will receive a non-exclusive, non-sublicensable, and non-transferable, worldwide license to access and use the SaaS Services according to the specifications of the Order Form. Upon expiration or termination of the Subscription Term, the rights and license granted hereunder will automatically terminate, and Customer may not continue to use the APP2 object this SaaS Agreement.

2.2 Customer acknowledges that BrainSigns will not be delivering copies of the Software to Customer as part of the SaaS Services.

2.3 The SaaS Services include all Upgrades of the Software which may incorporate major new features or enhancements that increase the core functionality of the SaaS Services.

2.4. BrainSigns may make any changes in the SaaS Services, that BrainSigns determines in its sole discretion to be necessary and/or desirable including, without limitation, changes in computer hardware, systems, and/or applications software, programming languages, data communications and Customer identification procedures. In the event of any such changes that, in BrainSigns’s reasonable determination, would materially change the operation of the Service, BrainSigns will notify Customer in writing of such changes. BrainSigns reserves the right to charge Customer for any reintegration work required to make customizations compatible with future versions/releases of the SaaS Service.

3. Use Restrictions

Customer may use the SaaS Services solely for its own personal purposes, in compliance with applicable law, and shall not at any time, directly or indirectly: (i) permit any third party to access the SaaS Services except as permitted herein, (ii) copy, modify, correct, or create derivative works of the Software or the SaaS Services, in whole or in part; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, the SaaS Services or the Documentation; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software or the SaaS Services, in whole or in part; (v) remove any proprietary notices from the Software, the SaaS Services or the Documentation; (vi) use the SaaS Services and/or the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vii) use the SaaS Services and/or the Software for purposes of: (a) benchmarking or competitive analysis of the Software; (b) developing, using, or providing a competing software product or service; or (c) any other purpose that is to BrainSigns detriment or commercial disadvantage; and (viii) use the SaaS Services and/or the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the SaaS Services and/or the Software could lead to personal injury or severe physical or property damage.

4. Reservation of Rights

BrainSigns reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement 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 Software and/or to the SaaS Services.

5. Delivery and Access

The access of the SaaS Services is provided by BrainSigns with characteristics and corresponding prices described on the website https://shop.brainproducts.com (or shared via email upon request) at the time and manner established in the Order Form. At the starting of the Subscription Term BrainSigns makes available to the Customer:

i) activation of the service which includes the configuration of a personal database on the Cloud and access credentials to the SaaS Services.
ii) assistance by sending emails to the Mindtooth Support, as provided for in Exhibit B.
iii) Documentation for the use and operation of the SaaS Services.

6. Customer Responsibilities

(a) General. Customer is responsible and liable for all uses of the SaaS Services and Software resulting from access by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions committed though the access with its credentials.

(b) Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that BrainSigns exercises no control over the Personal Data transmitted and stored by Customer in the Cloud through the SaaS Services.

(c) Unauthorized Use; False Information. Customer is solely responsible for maintaining the confidentiality of each username and password used with Customer accounts. Customer shall: (a) notify BrainSigns immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to BrainSigns immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer and (c) not provide false identity information to gain access to or use the SaaS Services.

(d) Assistance. Customer shall provide assistance as reasonably requested by BrainSigns in connection with the installation/implementation and configuration of the SaaS Services including, if requested, timely providing BrainSigns with access to Customer’s network, hardware and software, reasonably requested by BrainSigns in order to provide the Upgrades and the Maintenance Services.

(e) Third-Party Products. BrainSigns may use certain third-party products with the Software. For purposes of this Agreement, such third-party products are subject to their own license terms through provisions referred to in Exhibit A.

(f) Connectivity. Customer is responsible for acquiring and maintaining internet connectivity in order to access the service and use the SaaS Services, and Customer acknowledges that problems with the internet, including equipment, software, or network failures, impairments, or congestion, may prevent, interrupt, or delay Customer’s access to the Services. Customer shall thus be responsible for ordering, installing, maintaining the proper functioning of, and paying for any internet connection at Customer’s terminals or other access devices.

(g) Compliance. Customer agrees to comply with all technical specifications and with all security and operating guidelines, procedures, and protocols provided to Customer by BrainSigns.

7. Support and Maintenance

(a) BrainSigns shall provide Customer with the support and maintenance services described on Exhibit B during the Subscription Term and, thereafter, solely if Customer renews the subscription for additional Term(s).

(b) BrainSigns and its authorized subcontractors may access Customer’s account and Personal Data as necessary to identify or resolve technical problems or respond to complaints about the SaaS Services or as may be required by law. BrainSigns shall also have the right, but not the obligation, to monitor the SaaS Services to determine Customer’s compliance with the terms and conditions of this Agreement.

8. Fees and Payment

In order to license the use of the SaaS Services, Customer shall duly provide with the payment to BrainSigns of the fees (“Fees“) set forth in the Order Form.

9. Confidential Information

From time to time during the Subscription Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, in written, electronic, or other form or media/in written or electronic form or media, that is/ and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information“).

The Parties agree to hold all Confidential Information in confidence and agree to use Confidential Information solely for the purpose of this SaaS Agreement and not to disclose such Confidential Information, except as expressly permitted in this SaaS Agreement, to anyone other than their employees, advisors and service providers, with a bona fide need to know, who shall be governed by a parallel confidentiality of equal or greater force. Additionally, each Party agrees to use at least that degree of care which it uses to protect its own information of a similar proprietary nature, but in no event less than reasonable protection.

Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

10. Intellectual Property

10.1. Ownership

(a) Customer acknowledges and agrees that all right, title, and interest in and to the SaaS Services, the Software, and the Documentation, including, without limitation, all modifications, enhancements, and intellectual property rights thereto, belong solely to BrainSigns and/or its applicable licensors.

(b) Customer exclusively owns all right, title, and interest in and to the Personal Data and Customer Confidential Information. In the event of termination or expiration of this Agreement, and if legally permissible and requested by Customer, within sixty (60) days of such termination or expiration, BrainSigns agrees to: (i) return to Customer the Personal Data; or (ii) destroy or permanently erase the Personal Data. After such 60-day period, BrainSigns will have no other further obligation to maintain or provide access to Personal Data and shall have the right to destroy the Personal Data and permanently erase the Personal Data without any liability to Customer.

(c) Notwithstanding anything to the contrary, BrainSigns shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the SaaS Services provided to Customer and related systems and technologies, and BrainSigns will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the services and for other development, diagnostic and corrective purposes in connection with the services and other BrainSigns offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

(d) If Customer or any of its employees or contractors sends or transmits any communications or materials to BrainSigns by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), BrainSigns is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to BrainSigns on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and BrainSigns 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 BrainSigns is not required to use any Feedback.

10.2 Customer Cooperation and Notice of Infringement. Customer shall, during the Term:

(a) safeguard the SaaS Services, the Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;

(b) at BrainSigns’ expense, take all such steps as BrainSigns may reasonably require in maintaining the validity, enforceability and BrainSigns ownership of the Intellectual Property Rights in the Software and Documentation;

(c) promptly notify BrainSigns in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of BrainSigns Intellectual Property Rights in or relating to the SaaS Services, the Software or Documentation; or (ii) any claim that the SaaS Services, the Software or Documentation, including any production, use, marketing, sale or other disposition thereof, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person.

10.3 No Implied Rights

Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement 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 any of the Software or Documentation.

11. Limited Warranties and Warranty Disclaimer

(a) BrainSigns represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards and that the SaaS Services will perform substantially in accordance with the Documentation. For any beach of a warranty, Customer’s exclusive remedy shall be as provided in Section 14, Term and Termination. THE FOREGOING WARRANTIES DO NOT APPLY, AND BRAINSIGNS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. BRAINSIGNS DOES NOT GUARANTEE THAT THE SAAS SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT BRAINSIGNS WILL CORRECT ALL SAAS SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT BRAINSIGNS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SAAS SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY BRAINSIGNS (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT. NEITHER BRAINSIGNS NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THE OPERATION OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE, NOR SHALL BRAINSIGNS OR ANY OF ITS SERVICE PROVIDERS BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S OR ANY CUSTOMER’S DATA, FILES, OR PROGRAMS.

(b) The warranties set forth in Section 11(a) do not apply and become null and void if Customer breaches any provision of this Agreement, or if Customer, or any other person provided access to the SaaS Services by Customer, whether or not in violation of this Agreement: (i) uses the SaaS Services or the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by BrainSigns in writing; (ii) modifies or damages the Software; or (iii) misuses the SaaS Services and/or the Software, including any use of the SaaS Services other than as specified in the Documentation or expressly authorized by BrainSigns in writing.

(c) If, during the period specified in Section 11(a), the SaaS Services fails to comply with the warranty in Section 11(a), and such failure is not excluded from warranty pursuant to Section 11(b), BrainSigns shall, subject to Customer’s promptly notifying BrainSigns in writing of such failure, at its sole option, either: (i) repair or replace the SaaS Services, provided that Customer provides BrainSigns with all information BrainSigns reasonably requests to resolve the reported failure, including sufficient information to enable the BrainSigns to recreate such failure; or (ii) refund the Fees paid for such Software, subject to Customer’s ceasing all use of and, if requested by BrainSigns, returning to BrainSigns all copies of the Software. If BrainSigns repairs or replaces the SaaS Services, the warranty will continue to run from the Effective Date and not from Customer’s receipt of the repair or replacement. The remedies set forth in this Section 11(c) are Customer’s sole remedies and BrainSigns’s sole liability under the limited warranty set forth in Section 11(a).

(d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(a), CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SAAS SERVICES, THE SOFTWARE AND OTHER LICENSED MATERIALS, THIRD PARTY SOFTWARE, AND SERVICES ARE PROVIDED BY BRAINSIGNS “AS IS” AND THAT EXCEPT AS MAY BE SPEICIFICALLY WARRANTED IN THIS SECTION 11, BRAINSIGNS AND ITS LICENSORS AND SUPPLIERS HAVE MADE NO REPRESENTATIONS, AND HAVE EXPRESSLY DISCLAIMED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OR REPRESENTATIONS OF EVERY KIND OR NATURE, EITHER EXPRESS, IMPLIED, OR STATUTORY, AS TO THE LICENSED MATERIALS AND ANY ANCILLARY OR RELATED PRODUCTS OR SERVICES INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(a), BRAINSIGNS MAKES NO WARRANTY OF ANY KIND THAT THE SAAS SERVICES, THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

12. Indemnification

(a) Customer Indemnification. Customer shall indemnify, hold harmless, and defend BrainSigns from and against and all claims, demands, losses, liabilities, actions or causes of action, assessments, damages, fines, Taxes, interest, and penalties (“Losses”) asserted by any person against BrainSings or against any of BrainSigns licensors and suppliers, resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) based on Customer’s: (i) negligence or willful misconduct; or (ii) use of the SaaS Services or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the SaaS Services and/or the Software in combination with data, software, hardware, equipment or technology not provided by BrainSigns or authorized by BrainSigns in writing; (iv) violation of any privacy laws, intellectual property laws, defamation laws, or any other applicable provision of law arising from the use of the SaaS Services and/or the Software; (v) modifications to the Software not made by BrainSigns; or (vi) use of any version other than the most current version of the Software or Documentation delivered to Customer. Customer may not settle any Third-Party Claim against BrainSigns unless such settlement completely and forever releases BrainSigns from all liability with respect to such Third-Party Claim or unless BrainSigns consents to such settlement, and further provided that BrainSigns will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(b) Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND BRAINSIGNS’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY PRIVACY OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

13. Limitations of Liability

IN NO EVENT WILL BRAINSIGNS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BRAINSIGNS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BRAINSIGNS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED 2 TIMES THE TOTAL AMOUNTS PAID TO BRAINSIGNS UNDER THIS AGREEMENT IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

14. Term and Termination

(a) Term. The initial term of this Agreement begins on the Effective Date and will have the duration established in the Order (the “Subscription Term“).

(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) BrainSigns may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount established in the Order Form, and such failure continues more than 30 days after BrainSigns’ delivery of written notice thereof; or (B) breaches any of its obligations under Section 3, Section 4, Section 6 or Section 10;
(ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business..

(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Customer’s obligations under Section 6, Section 9 and Section 10, Customer shall cease using the SaaS Services. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. The Customer shall be able to access by mean of its username and password the data produced through the use of the SaaS Services for two months after the Termination of this Agreement. After two months BrainSigns will delete, destroy all the data pertaining to the Customer and still stored in the cloud platform.

15. Personal Data

(a) In relation to all Personal Data stored by Customer in the Cloud, Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws such as EU GDPR n. 2016/679 that regulate the processing of Personal Data and special categories of data as such terms are defined in that Regulation. Customer will be responsible for the Personal Data processing, and agrees to obtain all necessary consents of the Data Subjects and make all necessary disclosures before including Personal Data in content processed though the SaaS services.

(b) Customer shall store the Personal Data in a pseudo-anonymized manner. Customer acknowledges and agrees that if the Personal Data is not pseudo-anonymized, BrainSigns will not be able to access such data and perform the Maintenance Services.

(c) Customer shall obtain and maintain any rights, consents, and approvals required to grant BrainSigns and authorized third parties the right to access and use the pseudo-anonymized Personal Data for the purposes of Maintenance Services of the SaaS Services.

16. Miscellaneous

(a) Non-Exclusive Service. Customer acknowledges that SaaS Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict BrainSigns’ ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.

(b) Personal data of Customer. Customer hereby acknowledges and agrees that BrainSigns’ performance of this SaaS Agreement may require BrainSigns to process, transmit and/or store Customer’s personal data or the personal data of Customer employees and Affiliates. By submitting personal data to BrainSigns, Customer agrees that BrainSigns or its subcontractors may process, transmit and/or store personal data only to the extent necessary for, and for the sole purpose of, enabling BrainSigns to perform its obligations to under this SaaS Agreement.

(c) BrainSigns Personal Data Obligations. In performing the SaaS Services, BrainSigns will comply with the BrainSigns Privacy Policy, which is available at https://brainsigns.com/en/privacy-policy and incorporated herein by reference. The BrainSigns Privacy Policy is subject to change at BrainSigns’ discretion; however, BrainSigns policy changes will not result in a material reduction in the level of protection provided for Customer data during the period for which fees for the services have been paid. BrainSigns reserves the right to provide the SaaS Services from host locations, and/or through use of subcontractors, worldwide.

(d) Entire Agreement. This SaaS Agreement, together with the Order Form, the Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

(e) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and addressed to the Parties at the addresses set forth on the first page on the Order Form of the SaaS Services (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(f) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s]reasonable control, including but not limited to: (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, hostilities terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions in effect on or after the date of this Agreement.

(g) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(h) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(i) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of Italy without giving effect to any choice or conflict of law provision or rule that would require or permit the application of other laws. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the Court of Milano and each Party irrevocably submits to the [exclusive] jurisdiction of such courts in any such suit, action, or proceeding.

(j) Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of BrainSigns, which consent shall not be unreasonably withheld, conditioned, or delayed]. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

(k) Publicity. BrainSigns may include Customer’s name and logo in its customer lists and on its website.

(l) Independent Contractor. The parties have the status of independent contractors, and nothing in this SaaS Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this SaaS Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel.

(m) Statistical Information. BrainSigns may anonymously compile statistical information related to the performance of the SaaS Service for purposes of improving the SaaS Service, provided that such information does not identify Customer’s data or include Customer’s name.

(n) Signatures. This SaaS Agreement may be executed by accepting the terms and conditions of this SaaS Agreement and Customer receives the confirmation email of the activation of the services. Delivery of an executed counterpart of a signature page of this SaaS Agreement by facsimile or other electronic transmission (including via pdf) will be effective as delivery of a manually executed counterpart.

Agreement to be formally accepted by the Customer before the payment.

EXHIBIT A

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.

1. DESCRIPTION OF SOFTWARE:

The Mindtooth Lite System has been developed and tested within the FTI-H2020 Mindtooth project 950998. The Software of Mindtooth Lite System includes two versions of the product:

1) App1

Application developed for:

  • acquisition and display of the EEG signal from the Mindtooth Touch headset
  • saving data locally
  • EEG data streaming via Lab Streaming Layer protocol

2) App2

Application developed for:

  • acquisition of the EEG signal from the Mindtooth Touch headset
  • cloud processing of this signal in order to obtain “EEG neurometric” indicators relating to mental states (at now: stress, workload and vigilance in a few months approach/withdrawal and mental effort) with time resolution in seconds
  • database of recordered EEG data and neurometrics
  • Customer and session database management
  • visualization of summary reports of neurometrics

2. THIRD-PARTY PRODUCTS: Cloud Service Linode – Legal terms at: https://www.linode.com/legal/

EXHIBIT B

SUPPORT AND MAINTENANCE SERVICES

The Schedule sets out the terms on which the BrainSings will provide Support and Maintenance Services to the Customer for the duration of the SaaS license Agreement.

1. BrainSigns shall provide to Customer the following:

  • Customer manual in English and video tutorials both linkable within the 2 APPs
  • Assistance service that can be activated via email, with reply in 48 hours to understand and classify the problem and subsequent management of the problem in pre-established times.

2. Where the Customer considers on reasonable grounds that the SaaS Service is not materially performing in conformity with the Documentation, BrainSigns must:

a) provide email support in the form of consultation, assistance and advice; and
b) use reasonable efforts to assist in the resolution of the issue (taking into account the nature and severity of the issue).

3. The provision of support maintenance services by BrainSigns under art. 7 of the Agreement is conditional on the Customer:

a) first using reasonable efforts to resolve the issue by referring to the Documentation; and
b) contacting BrainSigns during Business Days and hours (Monday to Friday from 9:00 to 18:00 by one of the following methods:
Email: sw.assistance@brainsigns.com

4. BrainSigns may, at its discretion, from time to time provide the Customer with Upgrades, which shall be installed by BrainSigns.