Terms & Conditions
Appendix A
General Terms and Conditions
These General Terms and Conditions (“Terms,” and together with the applicable Order Form(s) and any applicable
Statement of Work (“Order(s)”), collectively, the “Agreement”) set forth the terms and conditions pursuant to
which BrainCheck, Inc., a Delaware corporation (“BrainCheck”), shall provide a SaaS-based platform for
conducting certain cognitive assessments, care planning and other related remote processing services (as modified
from time to time, the “BrainCheck Platform”) through its website located at braincheck.com or its mobile app
(the “BrainCheck App”) to measure and track information about cognitive health as more particularly described in
the applicable Order (as modified from time to time, collectively, the “Cognitive Testing Services”). Each Order is
subject to these Terms. BY CLICKING “I AGREE”, USING, OR ACCESSING THE BRAINCHECK
PLATFORM, THE BRAINCHECK APP OR THE COGNITIVE TESTING SERVICES, OR OTHERWISE
SIGNIFYING YOUR ACCEPTANCE OF THESE TERMS AND THE ORDERS, YOU REPRESENT AND
WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS AGREEMENT FOR AND ON
BEHALF OF YOURSELF (AND YOUR ORGANIZATION), AND ARE DOING SO, (B) YOU (AND YOUR
ORGANIZATION) CAN LEGALLY ENTER INTO THIS AGREEMENT AND (C) YOU HAVE READ
AND UNDERSTAND AND AGREE THAT YOU (AND YOUR ORGANIZATION) AND EACH USER
SHALL BE BOUND BY THESE TERMS AND BRAINCHECK’S PRIVACY POLICY
(HTTPS://BRAINCHECK.COM/PRIVACY-POLICY/) (THE “PRIVACY POLICY”) AND ALL
MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE TO THESE TERMS,
THE ORDERS OR THE PRIVACY POLICY, YOU ARE NOT AUTHORIZED TO USE THE
BRAINCHECK PLATFORM, THE BRAINCHECK APP OR THE COGNITIVE TESTING SERVICES.
1. DEFINITIONS. Capitalized terms in these Terms have the meanings set forth or referred to in this Section
1 or the Order.
1.1. “Administrator” means the representative(s) of Customer who have been authorized to
administer the access and use of the Cognitive Testing Services and the BrainCheck Platform.
1.2. “Additional Services” “means any additional services to be provided by Brain Check as provided
in the applicable Order.
1.3 “Affiliate” means a corporate entity that directly or indirectly controls, is controlled by, or is
under common control with a party, where “control” means ownership of more than 50% of the outstanding shares
or securities representing the right to vote for the election of directors or other managing authority of such corporate
entity.
1.4 “Authorized End User” means any Patient or other user (excluding any Authorized User) who
has been authorized by the Administrator to access and use the Cognitive Testing Services through the BrainCheck
Platform.
1.5 “Authorized User” means any Service Provider who has been authorized by the Administrator to
access and use the Cognitive Testing Services through the BrainCheck Platform.
1.6 “Business Day” means a day other than a Saturday, Sunday or any federal, state or holiday of
BrainCheck.
1.7 “Documentation” means text and/or graphical documentation related to the Cognitive Testing
Services, the BrainCheck Platform or the BrainCheck App, in printed format, or otherwise that describes the
features, functions and restrictions of the BrainCheck Materials, which materials are designed to facilitate use of
and which are made available by BrainCheck to the Customer.
1.8 “Fees” means, individually and collectively, the Subscription Fees and the Additional Services
Fees and any other fees charged by BrainCheck in connection with this Agreement.
1.9 “Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether
patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain
names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including
computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential
information, and (e) all other intellectual property rights, in each case whether registered or unregistered and
including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms
of protection in any part of the world.
1.10 “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty,
common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or
political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
1.11 “Losses” means all claims, demands, losses, injuries (including personal injury, sickness, or
death), damages (including property damage), liabilities, deficiencies, actions, judgements, interest, awards,
penalties, fines, costs or expenses of whatever kind, and other liabilities of any kind or nature, whether sounding in
contract, tort, strict liability or otherwise, including reasonable attorneys’ fees and experts’ fees and the cost of
enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.12 “Maintenance Release” means any update, upgrade, release or other adaptation or modification
of the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck App, including any updated
Documentation, that BrainCheck may provide to Customer 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 Cognitive Testing Services, the
BrainCheck Platform and/or the BrainCheck App.
1.13 “Order” means BrainCheck’s order form or other document that includes the Subscription Fees,
the payment terms and other information related to the Cognitive Testing Services and the BrainCheck Platform.
1.14 “Patient” means a patient of Customer.
1.15 “Patient Data” means the information about cognitive health that is collected about any of the
Patients by the Cognitive Testing Services.
1.16 “Representatives” means, with respect to a party, that party’s and its Affiliates’ employees,
officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and
legal and financial advisors.
1.17 “Service Provider” means any of Customer’s doctors or other healthcare providers with a
“National Provider Identifier” number who would have access to, and use, the Cognitive Test Services.
1.18 “Third-party Materials” means materials and information, in any form or medium, including any
open source software, documents, data, content, specifications, or components of or relating to the Cognitive Testing
Services, the BrainCheck Platform or the BrainCheck App and that are not proprietary to BrainCheck.
2. COGNITIVE TESTING SERVICES
2.1. Right to Use. Subject to the terms of this Agreement, including the applicable Order, BrainCheck
grants to Customer and its Authorized Users and Authorized End Users, a limited, non-exclusive, non-transferable,
non-sublicensable, royalty-free, revocable right to access and use the Cognitive Testing Services during the Term in
both cases in accordance with the terms of this Agreement and the applicable Documentation (collectively, the
“Right to Use”).
2.2. Limited License. Subject to and conditioned on Customer’s and its Authorized Users’ and
Authorized End Users’ compliance with the terms and conditions of this Agreement, BrainCheck grants to Customer
and its Authorized Users and Authorized End Users a limited, non-exclusive, non-transferable, non-sublicensable,
royalty-free revocable right and license during the Term to download the BrainCheck App onto mobile devices and
use the BrainCheck App for use in connection with the Cognitive Testing Services (the “License”).
2.3. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms
and conditions of this Agreement and the Authorized End Users’ compliance with the Terms of Use, BrainCheck
shall use commercially reasonable efforts to provide to Customer and the Authorized Users and Authorized End
Users access and use of the Cognitive Testing Services and the BrainCheck Platform during the Term.
2.4. Use Restrictions. None of Customer, the Administrator, any Authorized User or any Authorized
End User shall:
● translate, reverse engineer, de-compile or disassemble the Cognitive Testing
Services, the BrainCheck Platform or the BrainCheck App, except to the extent that applicable law
explicitly prohibits this contractual restriction
● use or permit the use of the Cognitive Testing Services, the BrainCheck
Platform or the BrainCheck App in violation of any Federal, state or local laws, statutes, rules,
regulations or ordinances
● defeat, circumvent or disable any copy protection mechanism or mechanism in
the or the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck App used to
limit use duration or access to excluded functionality or capacity
● interfere with or disrupt the integrity or performance of the Cognitive Testing
Services, the BrainCheck Platform, the BrainCheck App or the or any data contained therein
● use, access, display and run the BrainCheck Platform or the BrainCheck App
except in accordance with the terms of this Agreement and the applicable Order
● except as specifically permitted under the terms of this Agreement, rent, lease,
lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the
Cognitive Testing Services or the BrainCheck Platform to any third party, including on or in
connection with the internet or any time-sharing, service bureau, software as a service, cloud or
other technology or service other than the Authorized Users and Authorized End Users as
permitted under this Agreement
● except as specifically provided under the terms of this Agreement, delete or in
any manner alter the copyright, trademark, and other proprietary rights notices of BrainCheck
appearing on any of the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck
App or any other services or products
● access or use the Cognitive Testing Services, the BrainCheck Platform or the
BrainCheck App in any manner or for any purpose that infringes, misappropriates or otherwise
violates any Intellectual Property Rights or other rights of any third party, or that violates any
applicable law
● use the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck
App for purposes of: (a) benchmarking or competitive analysis of the Cognitive Testing Services
or the BrainCheck Platform; (b) developing, using or providing a competing or service; or (iii) any
other purpose that is to BrainCheck’s detriment or commercial disadvantage
● use the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck
App in any manner or for any purpose or application not expressly permitted by this Agreement.
2.5. Additional Services. If Customer has engaged BrainCheck to provide any Additional Services,
such Additional Services shall be provided subject to, and in accordance with, the terms of the Agreement and the
terms and conditions set forth in Exhibit B. If there is any conflict between these Terms and the terms and
conditions set forth in Exhibit B regarding the Additional Services, then the terms and conditions of Exhibit B
shall prevail
2.6. Privacy and Security Laws. Each party will comply with all applicable federal and state laws
governing the privacy and security of personal and/or protected health information (“PHI”), including but not
limited to 42 U.S.C. 1320d (“HIPAA”) and 42 U.S.C. 17902 (“HITECH”), their implementing regulations at 45
CFR parts 160, 162 and 164, and chapters 70.02 and 19.255 RCW (collectively “Privacy and Security Laws”). The
parties will execute a business associate agreement (as amended, “BAA”) substantially in the form provided by
BrainCheck or as otherwise agreed by the parties in writing. The BAA shall be amended to ensure compliance with
the Privacy and Security Laws as mutually agreed by the parties.
2.7. Medical Disclaimer. THE COGNITIVE TESTING SERVICES, THE BRAINCHECK
PLATFORM AND THE BRAINCHECK APP DO NOT PROVIDE MEDICAL SERVICES OR ADVICE.
BRAINCHECK PROVIDES THE COGNITIVE TESTING SERVICES, THE BRAINCHECK PLATFORM AND
THE BRAINCHECK APP TO MEASURE AND TRACK INFORMATION ABOUT COGNITIVE HEALTH.
CLINICAL APPLICATION OF THE INFORMATION OBTAINED BY USE OF THE COGNITIVE TESTING
SERVICES, THE BRAINCHECK PLATFORM AND THE BRAINCHECK APP IS THE SOLE
RESPONSIBILITY OF CUSTOMER. THE COGNITIVE TESTING SERVICES DO NOT CONTAIN OR
CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS MEDICAL ADVICE OR OPINION.
BRAINCHECK DOES NOT PROVIDE MEDICAL SERVICES OR RENDER MEDICAL ADVICE. NOTHING
CONTAINED IN THE COGNITIVE TESTING SERVICES, THE BRAINCHECK PLATFORM OR THE
BRAINCHECK APP IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL
ADVICE, DIAGNOSIS OR TREATMENT. ANY INFORMATION CONTAINED IN THE COGNITIVE
TESTING SERVICES, THE BRAINCHECK PLATFORM AND THE BRAINCHECK APP SHOULD NOT BE
RELIED UPON AS THE BASIS OF ANY HEALTH-CARE DECISION. By using the Cognitive Testing Services,
the BrainCheck Platform and the BrainCheck App in a clinical setting or while providing any type of medical care to
any Patient or other third party, Customer represents and warrants that only trained Service Providers will access
and use the Cognitive Testing Services and Customer acknowledges that BrainCheck assumes no liability regarding
the use of information obtained from the Cognitive Testing Services and the BrainCheck Platform.
3. CUSTOMER OBLIGATIONS
3.1. Invitations and User Accounts. Administrator shall be solely responsible for enabling Service
Providers to access and use the Cognitive Testing Services through the BrainCheck Platform.
3.2. Compliance with Applicable Law. Customer, Administrator and each Authorized User and
Authorized End User shall comply with all applicable Federal, state and local laws related to the Cognitive Testing
Services and the BrainCheck Platform, including all privacy laws.
3.3. Patient Authorization. Customer shall be responsible for obtaining all necessary consents and
approvals from its Patients (or their guardians or other person having authority to act on behalf of the Patients) to
collect, store, use, display and share the Patient Data in accordance with the terms of this Agreement and otherwise
use such Patient Data as contemplated under Section 4.4.
3.4. Terms of Use. Access and use of the Cognitive Testing Services, the BrainCheck Platform and the
BrainCheck App by the Authorized End Users shall be subject to BrainCheck’s Terms of Use (as modified, the
“Terms of Use”). The current version of the Terms of Use are located at [https://braincheck.com/terms-of-use]
Customer shall inform its Authorized End Users of the Terms of Use and shall ensure that each such accepts or
otherwise manifest its agreement to be bound by the Terms of Use. Customer shall be responsible for any breaches
of the Terms of Use by its Authorized End Users. BrainCheck reserves the right to modify the Terms of Use on at
least thirty (30) days’ prior written notice to Customer.
3.5. Compliance and Medical Record Custodianship Issues. ’In the event that any Patient of Customer
requests results from BrainCheck, they will be referred back to Customer. If Customer desires assistance with
transferring test result reports into its EMR, BrainCheck may charge additional fees associated with such transfer,
provided such fees and assistance are agreed upon in writing by the parties.
3.6. Billing for Cognitive Testing. Customer shall have the sole right and responsibility to bill and
collect for any services related to the Cognitive Testing Services. BrainCheck makes no representations or
guarantees of whether the Cognitive Testing Services is billable. BrainCheck shall not be involved with any billing
and collection activities of Customer and shall not be responsible for any coding or billing errors that may occur.
4. INTELLECTUAL PROPERTY AND PATIENT DATA.
4.1. BrainCheck’s Intellectual Property Rights. The Cognitive Testing Services, the BrainCheck
Platform and the BrainCheck App and the Documentation and the associated copyrights and other Intellectual
Property Rights are protected by law and international treaties. All right, title and interest in and to the Cognitive
Testing Services, the BrainCheck Platform, the BrainCheck App and the Documentation, including all Intellectual
Property Rights therein, are and will be owned by BrainCheck and the respective rights holders in the Third-party
Materials. None of Customer or its Authorized Users or Authorized End Users has any right, license or authorization
with respect to the Cognitive Testing Services, the BrainCheck Platform, the BrainCheck App or the Documentation
(including Third-party Materials) except as expressly set forth in Sections 2.1 and 2.2, in each case subject to the
restrictions in Section 2.4. All other rights in and to the Cognitive Testing Services, the BrainCheck Platform, the
BrainCheck App and the Documentation (including Third-party Materials) are expressly reserved by BrainCheck
and the respective third-party licensors
4.2. Feedback. If Customer provides BrainCheck any feedback, comments, or suggestions with respect
to the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck App or the related Intellectual
Property Rights (collectively, the “Feedback”), Customer hereby grants to BrainCheck a non-exclusive, worldwide,
fully paid-up, royalty-fee, non-terminable, perpetual, irrevocable right and license to use, disclose, modify,
reproduce, license, distribute, commercialize and otherwise freely exploit any Feedback without restriction of any
kind and without any right of accounting.
4.3. Patient Data. Customer acknowledges that each Patient shall own all right, title and interest in and
to his or her Patient Data, subject to the rights and permissions granted in Section 4.4.
4.4. Permitted Use. Customer hereby grants and agrees to grant to BrainCheck a non-exclusive,
transferable, sublicensable, royalty free right and license during the Term to use the Patient Data to use and process
the Patient Data in connection with the Cognitive Testing Services and for any other use purpose permitted by
BrainCheck’s privacy policy through the Patients’ consents and approvals obtained under Section 3.3. Customer
acknowledges that such usage may incidentally improve the Cognitive Testing Services, the BrainCheck Platform
and/or the BrainCheck App. In addition, Customer hereby grants to BrainCheck a non-exclusive, irrevocable,
perpetual, worldwide, royalty-free and fully paid license to use the Patient Data to compile and synthesize
aggregated and/or de-identified information (“De-Identified Data”). Notwithstanding anything in these Terms to
the contrary, to the extent that BrainCheck collects or generates De-Identified Data, such De-Identified Data will be
owned solely by BrainCheck. BrainCheck shall ensure that Customer is not, and no Patients are, identified or
identifiable as the source of any such De-Identified Data. Customer agrees and acknowledges that it may not have
access to the De-Identified Data. BrainCheck will never sell any PHI.
4.5. Security Obligations. BrainCheck shall employ commercially reasonable security measures to
protect the Patient Data in accordance with good industry practice and all applicable laws.
5. SUBSCRIPTION AND OTHER FEES.
5.1. Subscription Fees. The Subscription Fees for the right to access and use the Cognitive Testing
Services and the BrainCheck Platform during the applicable Subscription Term are set forth in, and shall be paid in
accordance with, the applicable Order.
5.2. Additional Services Fees. The fees for the Additional Services (as modified, the “Additional
Services Fees”) are set forth in, and shall be paid in accordance with, the applicable Order.
6. SUPPORT AND MAINTENANCE.
6.1. BrainCheck shall provide technical and other support as specified in the applicable Order and
Exhibit A.
6.2. BrainCheck shall also provide Customer with all Maintenance Releases (including updated
Documentation) that BrainCheck may, in its sole discretion, make generally available to its customers at no
additional charge. All Maintenance Releases, on being provided by BrainCheck to Customer hereunder, are deemed
to a part of the Cognitive Testing Service, the BrainCheck Platform and/or the BrainCheck App, subject to the Right
to Use and the License and all applicable terms and conditions in this Agreement.
7. WARRANTIES AND DISCLAIMER.
7.1. Mutual Warranties. Each party represents that it is a corporation that is duly organized, validly
existing, and in good standing in the jurisdiction in which it is incorporated, and that it has the requisite corporate
power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this
Agreement. Each party represents and warrants that it has no outstanding agreement or obligation that is in conflict
with any of the provisions of this Agreement, or that would preclude it from complying with the provisions hereof.
7.2. Service Level Warranty. BrainCheck shall use commercially reasonable efforts to provide the
Cognitive Testing Services, the BrainCheck Platform and the BrainCheck App in accordance with the Service Level
Agreement attached as Exhibit A.
7.3. Customer Warranty. Customer warrants that it has all necessary rights to provide the Patient Data
to BrainCheck to be used in accordance with Section 4.4.
7.4. Disclaimer. THE FOREGOING CONSTITUTES BRAINCHECK’S ONLY WARRANTIES
CONCERNING THIS AGREEMENT, THE COGNITIVE TESTING SERVICES, THE BRAINCHECK
PLATFORM AND THE BRAINCHECK APP, AND ANY OTHER SERVICES PROVIDED BY BRAINCHECK
AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, AVAILABILITY, MERCHANTABILITY, INFORMATIONAL CONTENT, ACCURACY OF
RESULTS, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR
OTHERWISE. CUSTOMER SHALL NOT AND HAS NO AUTHORITY TO MAKE ANY WARRANTY ON
BEHALF OF BRAINCHECK TO ANY USER CONCERNING THE SERVICE.
8. CONFIDENTIALITY.
8.1. Definition. “Confidential Information” means any proprietary information, customer
information, product plans, inventions, technical data, trade secrets, know-how, or other business information, in
each case disclosed by a disclosing party hereunder. Without limiting the foregoing, BrainCheck’s Confidential
Information includes, without limitation, the Cognitive Testing Services, the BrainCheck Platform and the
BrainCheck App and any related intellectual property, and the terms and conditions of this Agreement.
8.2. Exclusions. Confidential Information does not include information that the receiving party can
demonstrate by written or other documentary records: (a) was rightfully known to the receiving party without
restriction on use or disclosure prior to such information’s being disclosed or made available to the receiving party
in connection with this agreement; (b) was or becomes generally known by the public other than by the receiving
party’s Representatives’ noncompliance with this agreement; (c) was or is received by the receiving party on a non-
confidential basis from a third party that, to the receiving party’s knowledge, was not or is not, at the time of such
receipt, under any obligation to maintain its confidentiality; or (d) the receiving party can demonstrate by written or
other documentary records was or is independently developed by the receiving party without reference to or use of
any Confidential Information.
8.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or
access to Confidential Information, the receiving party shall during the Term and for five (5) years thereafter: (a) not
access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under
and in accordance with this Agreement, (b) except as may be permitted under the terms and conditions of Section
8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know
such Confidential Information for purposes of the receiving party’s exercise of its rights or performance of its
obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the
Confidential Information and the receiving party’s obligations under this Section 8; and (iii) are bound by written
confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set
forth in this Section 8, (c) safeguard the Confidential Information from unauthorized use, access or disclosure using
at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable
degree of care, (d) promptly notify the disclosing party of any unauthorized use or disclosure of Confidential
Information and take all reasonable steps to prevent further unauthorized use or disclosure and (e) ensure its
Representatives’ compliance with, and be responsible and liable for, any of its Representatives’ non-compliance
with, the terms of this Section 8. It is understood that any Confidential Information shall remain the sole property of
the disclosing party.
8.4. Disclosure Required by Law. Notwithstanding the foregoing, the receiving party may disclose the
disclosing party’s Confidential Information pursuant to a valid order issued by a court or government agency or as
otherwise required by law, provided that (a) the receiving party provides the disclosing party with prior written
notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (b) the receiving
party only discloses such Confidential Information as is required to comply with such order or law (as advised by
competent counsel) and (c) no such disclosure shall otherwise exempt such Confidential Information from being
treated as confidential under this Section 8.
9. TERM AND TERMINATION.
9.1. Term. This Agreement will commence on the Subscription Commencement Date and unless
terminated as set forth herein, will renew as provided in the applicable Order (collectively, the “Term”).
9.2. Termination. This Agreement, the Right to Use and the License may be terminated for cause upon
the occurrence of any of the following: (a) by BrainCheck, effective on written notice to the other party, if Customer
breaches a payment obligation under this Agreement and such breach remains uncured ten (10) days after
BrainCheck provides Customer with written notice of such breach (b) by a party, effective on written notice to the
other party, if such other party breaches any non-payment obligation or term under this Agreement and such breach:
(i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party
provides the breaching party with written notice of such breach, or (c) by a party, effective immediately, if the other
party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is
generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary
bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a
general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee,
receiver or custodian for a substantial part of its property.
9.3. Effect of Expiration or Termination. On the expiration or termination of this Agreement for any
reason:
(a) all rights and authorizations granted to Customer and its Authorized Users and
Authorized End Users hereunder, including the Right to Use and the License will immediately terminate
and Customer shall: (i) immediately cease all use of and other activities with respect to the Cognitive
Testing Services, the BrainCheck Platform, the BrainCheck App and the Documentation, (ii) within fifteen
(15) days, deliver to BrainCheck, or at BrainCheck’s written request destroy, and permanently erase from
all devices and systems Customer directly or indirectly controls, the BrainCheck App, the Documentation
and BrainCheck’s Confidential Information, including all documents, files and tangible materials (and any
partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether
or not modified or merged into other materials; and (c) certify to BrainCheck in a written instrument signed
by an executive officer that it has complied with the requirements of this Section 9.3(a).
(b) Customer shall pay all amounts due to BrainCheck of any kind under this Agreement no
later than ten (10) days after the effective date of the expiration or termination of this Agreement.
(c) BrainCheck shall: (A) within fifteen (15) days, deliver to Customer, or at Customer’s
written request destroy, and permanently erase from all devices and systems BrainCheck directly or
indirectly controls, Customer’s Confidential Information, including all documents, files and tangible
materials (and any partial and complete copies) containing, reflecting, incorporating or based on
Customer’s Confidential Information, whether or not modified or merged into other materials and (B)
certify to Customer in a written instrument signed by an executive officer that it has complied with the
requirements of this Section 9.3(c). In addition, upon Customer’s request within 30 days of the expiration
or termination of this Agreement, BrainCheck shall make available all final reports containing PHI to
Customer as soon as commercially reasonable. After such thirty (30) day period, BrainCheck may destroy
such reports; provided that BrainCheck may continue to use any De-Identified Data in accordance with this
Agreement, its Privacy Policy and applicable law.
9.4. Survival. Sections 1, 2.6, 2.7, 4, 5 (with respect to amounts accrued or payable prior to
termination), 7.4, 8, 9.3, 10, 11 and 12 and this Section 9.4 shall survive any expiration or termination of this
Agreement. All other rights and obligations shall cease and be of no further force or effect.
10. LIMITATION OF LIABILITY.
10.1. DISCLAIMER OF DAMAGES. EXCEPT FOR LIABILITIES RESULTING FROM A PARTY’S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR BREACH OF SECTIONS 2.1, 2.2, 2.4, 4 OR 8, IN
NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOSSES OR EXPENSES
(INCLUDING BUT NOT LIMITED TO BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, OR
LOST SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE.
10.2. MAXIMUM LIABILITY. EXCEPT FOR LIABILITIES RESULTING FROM PARTY’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, OR A BREACH OF SECTIONS 2.1, 2.2, 2.4, 4, 5 OR 8, IN NO
EVENT SHALL EITHER PARTY’S LIABILITY HEREUNDER (WHETHER IN CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) IN THE AGGREGATE
EXCEED THE FEES RECEIVED BY BRAINCHECK HEREUNDER FOR THE 12 MONTHS PRECEDING THE
APPLICABLE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
10.3. Allocation of Risk. The allocations of liability in this Section 10 represent the agreed and
bargained-for understanding of the parties and voluntary allocation between them of the risk associated with
Customer’s use of the Cognitive Testing Services, the BrainCheck Platform and the BrainCheck App and, but for
this provision, BrainCheck would not have made the Cognitive Testing Services, the BrainCheck Platform or the
BrainCheck App available to Customer hereunder. BrainCheck’s compensation reflects such allocations, and the
limitations and exclusions will apply notwithstanding the failure of essential purpose of any limited remedy
contained herein.
11. INDEMNIFICATION.
11.1. By BrainCheck. BrainCheck shall defend Customer from and against any claim, demand, or
action in any form brought by a third party against Customer, and indemnify and hold Customer harmless from any
Losses, in each case that are finally awarded to the third party by a court of competent jurisdiction or otherwise
owed in any settlement, in each case to the extent arising from or related to any allegation that the Cognitive Testing
Services, the BrainCheck Platform or the BrainCheck App, as provided to Customer and used within the scope of
these Terms, infringes any U.S. patent, copyright, or trade secret (an “Infringement Claim”). Notwithstanding the
forgoing, BrainCheck will have no liability for any Infringement Claim of any kind to the extent that the
Infringement Claim results from:
(a) modifications made other than by BrainCheck;
(b) unauthorized or unlicensed use;
(c) any third-party applications or services;
(d) the combination, operation or use of any component of the Cognitive Testing Services, the
BrainCheck Platform and/or the BrainCheck App with any hardware, systems, platforms or devices or
software not supplied by BrainCheck, to the extent such a claim would have been avoided if the Cognitive
Testing Services, the BrainCheck Platform and/or the BrainCheck App was not used in such combination;
(e) use of information, materials, reports, Patient Data or marks provided to BrainCheck to the
extent used in accordance with this Agreement;
(f) use of the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck App after
BrainCheck’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or
other violation of a third party’s rights or
(g) or compliance by BrainCheck with designs, plans or specifications furnished by or on behalf of
Customer.
11.2. By Customer. Customer shall defend BrainCheck from and against any claim, demand, or action
in any form and indemnify and hold BrainCheck harmless from any Losses in each case arising from or related to:
(a) unauthorized or illegal use of the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck App
by Customer or any Authorized User or Authorized End User; (b) use of any Patient Data in accordance with these
Terms; or (c) violation of Law.
11.3. Rights Upon Infringement. If Customer’s use of the Cognitive Testing Services, the BrainCheck
Platform and/or the BrainCheck App is, or in BrainCheck’s opinion is likely to be, enjoined due to the type of
infringement specified in Section 11.1, BrainCheck may, at its sole option and expense: (a) procure for Customer
the right to continue using the same under the terms of this Agreement; (b) replace or modify the same so that it is
non-infringing; or (c) if options (a) and (b) above cannot be accomplished despite BrainCheck’s commercially
reasonable efforts, then BrainCheck may terminate Customer’s rights and BrainCheck’s obligations hereunder with
respect to the use of the affected part of the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck
App after BrainCheck’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or
other violation of a third party’s rights and refund a pro-rated portion of any pre-paid Fees paid therefor, based upon
Customer’s use to date.
11.4. Infringement Procedures. Each party shall promptly notify the other party in writing of any claim
for which such party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2. The party
seeking indemnification (the “Indemnified Party”) shall cooperate with the other party (the “Indemnifying
Party”) at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall immediately take control
of the defense and investigation of such claim and shall employ counsel reasonably acceptable to the Indemnified
Party to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The Indemnified Party’s
failure to perform any obligations under this Section 11.4 will not relieve the Indemnifying Party of its obligations
under this Section 11 except to the extent that the Indemnifying Party can demonstrate that it has been materially
prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its
own cost and expense with counsel of its own choosing.
11.5. Sole Remedy. The provisions of this Section 11 sets forth BrainCheck’s sole and exclusive
obligations, and Customer’s sole and exclusive remedies, with respect to infringement of any proprietary or
Intellectual Property Rights of any kind.
12. GENERAL.
12.1. Entire Agreement. These Terms, including the Order(s) and any schedules and/or attachments
referenced herein or issued hereunder constitute the entire agreement of the parties with respect to the subject matter
contemplated herein, and supersede any prior representations, agreements, negotiations, or understandings between
them, whether written or oral, with respect to the subject matter hereof, provided that with respect to Confidential
Information disclosed thereunder this Terms shall not affect any surviving provision of any non-disclosure
agreement or other agreement by and between the parties. No waiver, alteration, or modification of any of the
provisions of these Terms shall be binding unless in writing and signed by duly authorized representatives of the
parties hereto.
12.2. Governing Law and Dispute Resolution. This Agreement will be governed by and construed in
accordance with the laws of the State of Texas without regard to any conflict of law principles. The parties expressly
agree to exclude the application of the U.N. Convention on Contracts for the International Sale of Goods (1980) to
this Terms and the performance of the parties contemplated herein, to the extent that such convention might
otherwise be applicable. Any legal suit, action or proceeding arising out of or related to this Agreement, an Order,
the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck App, or the transactions contemplated
hereby (a “Dispute”) will be instituted exclusively in the federal or state courts located in Harris County, Texas, and
each party irrevocably submits to the exclusive jurisdiction of such courts in any such Dispute. Service of process,
summons, notice or other document by mail to such Party’s address set forth herein will be effective service of
process for any suit, action or other proceeding brought in any such court. EACH PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
DISPUTE. In the event that either party institutes any legal suit, action or proceeding (collectively, a “Legal
Proceeding”) against the other party arising out of or related to a Dispute, the prevailing party in such Legal
Proceeding shall be awarded, in addition to any other damages it may be entitled to, its actual attorneys, expert
witness and accountants’ fees and out-of-pocket expenses, and court costs incurred in conducting the Legal
Proceeding.
12.3. Relationship of Parties. The parties are independent contractors and this Agreement will not
establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.
Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other
party’s prior written consent. BrainCheck reserves the right to utilize subcontractors; provided that BrainCheck shall
be responsible for the breach of these Terms by any such subcontractor.
12.4. Equitable Relief. The parties agree that a breach of Section 2.1, 2.2, 2.4, 4 or 8 by a party would
cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees
that, in the event of any such breach or threatened breach, the other party will be entitled to equitable relief,
including a restraining order, an injunction, specific performance and any other relief that may be available from any
court, without any requirement to post a bond or other security, or to prove actual damages or that monetary
damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that
may be available at law, in equity or otherwise.
12.5. Force Majeure. The obligations of a party (other than payment) will be suspended by the
occurrence of any event beyond its reasonable control and not caused by its negligence, that renders its performance
impossible including, acts of God, war, fire, flood, accident, strike, casualty, power failures, internet interruption,
governmental acts, orders or restrictions or inability to obtain suitable and sufficient labor and materials. The party
invoking force majeure shall (a) send written notice thereof to the other within a reasonable time after the invoking
Party knew or should have known that performance would be delayed or prevented due to the force majeure and (b)
take reasonable steps to limit the duration and effect of any such force majeure.
12.6. Government Use. The use, duplication, reproduction, release, modification, disclosure, or transfer
(“use”) of the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck App, no matter how received
by the United States Government, is restricted in accordance with the terms and conditions contained this
Agreement. All other use is prohibited. Further, the Cognitive Testing Services, the BrainCheck Platform and the
BrainCheck App were developed at BrainCheck’s private expense and is commercial in nature. By using or
receiving the Cognitive Testing Services, the BrainCheck Platform or the BrainCheck App, any Government user
agrees to the terms and conditions contained in these Terms including the terms and conditions contained in this
Section 12.6.
12.7. Assignment. Neither party may assign all or any part of this Agreement without the express
written consent of the other Party, except that a party may freely assign this Agreement without the consent of the
other party in connection with a merger, acquisition or sale of all or substantially all or substantially all of its assets
so long as the assignee agrees in writing to assume the assigning Party’s obligations of this Agreement and the
assigning party provides prior written notice of such assignment. Any purported assignment in violation of this
Section 12.7 shall be null and void. The Terms shall be binding on all permitted successors and assigns.
12.8. Severability. The invalidity or unenforceability of any provision hereof, or any terms thereof,
shall not affect the validity of the Terms as a whole, which will at all times remain in full force and effect.
12.9. Waiver. The failure of either party to enforce at any time the provisions of the Terms, or the
failure to require at any time performance by the other party of any of the provisions of the Terms, shall in no way
be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to
enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or
requirement of the Terms shall not constitute a waiver of any future obligation to comply with such provision,
condition or requirement.
12.10. Notices. All notices required or permitted under this Agreement shall be provided in accordance
with the applicable Order.
*******************************************************************************
Exhibit A
Support Services and Service Level Agreement
A. Support Priorities
BrainCheck shall use all commercially reasonable efforts and assign all necessary personnel to correct and/or
provide a work around for each reported problem by assigning a “Severity Level” according to the following:
Severity
Level
Action Response
Time
Severity
Level 1
Critical Business Impact/Risk: The BrainCheck Platform is
not operational or significant functionality is severely hindered
having a critical business impact on Customer. A temporary
work around may be instituted with a permanent solution in
the future.
12 Hours
Severity
Level 2
Medium Business Impact/Risk: The BrainCheck Platform is
not fully operational or significant functionality is partially
hindered having a significant business impact on Customer.
Initially a temporary work around may be instituted with a
permanent solution in the future.
1 Business
Day
Severity
Level 3
Low Business Impact/Risk: The BrainCheck Platform is not
fully operational or functionality is partially hindered having
some business impact on Customer. A temporary work around
may be provided in the interim.
3 Business
Days
Severity
Level
4/Feature
Requests
No Risk: The BrainCheck Platform is not fully operational or
functionality is partially hindered having some business
impact on Customer. A temporary work around may be
provided in the interim
5 Business
Days
B. Support
● BrainCheck technical and clinical support is available by phone (888-690-0977) during business
hours (8AM-6PM CT M-F, excluding holidays). Support is also available via email by emailing
support@braincheck.com. Support requests whether by phone or email will be answered as soon as reasonably
possible, with a target goal of response within one business day.
● BrainCheck will have various periods of scheduled downtime from time to time for the
BrainCheck Platform that will be scheduled in advance, with at least twenty-four (24) hours’ prior notice to the
Customer.
● In the event that emergency downtime is needed for any system patching or critical updates, or in
the event of a major event such as a power/internet outage or hardware failure, BrainCheck will use commercially
reasonable efforts to notify the Customer as soon as possible of downtime detection and once the BrainCheck
Platform is restored. BrainCheck will use commercial reasonable efforts to minimize any disruption to the
Customer.
C. Support Level Agreement
Definitions
“Annual Fee” means the pro-rata amount of the Subscription Fee paid by the Customer for the right to access and
use the BrainCheck Platform provided during the applicable Service Period.
“Availability” means the percentage of time in a Service Period during which the BrainCheck Platform was
Unavailable, based on five (5)-minute increments.
“Fee Credit” means a credit, as set forth in the table below, that will be applied as a credit to the Customer’s future
Subscription Fees.
“Scheduled Maintenance” means any scheduled maintenance period, during which outages and changes may
occur, where at least [forty-eight (48)] hours’ prior notice was given to the Customer.
“Service Period” means each twelve (12) month period of the Term.
“Unavailable” or “Unavailability” means the BrainCheck Platform is completely inaccessible or unavailable to all
users, for a period of at least five (5) continuous minutes except to the extent caused by any of the Exclusions (as
defined below).
Targeted Service Level
BrainCheck shall use commercially reasonable efforts to ensure that the BrainCheck Platform achieves an average
targeted availability of 99.9% during the applicable Service Period (the “Targeted Service Level”).
Fee Credits
Availability Fee
Credits
100% to 99.1% N/A
99.1% and to 97% 5%
97% and to 95% 10%
95% 25%
In the event that the availability of the Availability does not meet the average “Targeted Availability” during the
applicable Service Period, then the Customer may be eligible to receive a Fee Credit against future Subscription
Fees subject to the following:
● Availability is calculated per calendar month as follows:
The Available hours in a calendar month are all hours in that month less any Unavailability. In formula:
Availability = all hours in the applicable calendar month – Unavailability.
● The Availability percentage in a calendar month are the Available hours in such month divided by:
all hours in such month, times 100%. In formula: (Available hours / all hours)*100%.
● Each contract year, BrainCheck shall calculate the yearly Availability by totaling each of the twelve
monthly Availability percentages and dividing by 12. In formula: [aggregate of each of the twelve monthly
Availability percentages /12] = yearly Availability.
● Fee Credits are only available to the Customer if all of its fees were fully paid, and not overdue at the time
of the incident.
● The Customer must request a Fee Credit, by contacting their account manager, in writing or via email,
within 30 days of the end of the applicable Service Period. This request must include the date(s) and time(s)
of any incident(s).
● The Customer must contact BrainCheck for support promptly after the BrainCheck Platform becomes
Unavailable.
● If there are no future Subscription Fees to be paid under the Agreement for any reason, then any
outstanding Fee Credit shall expire.
Exclusions
The BrainCheck Platform shall not be considered Unavailable to the extent caused by any of the following (the
“Exclusions”):
● an event of force majeure
● any Scheduled Maintenance
● any action or inaction of the Customer or any third party
● the Customer’s equipment, software or other technology and/or third-party equipment, software or other
technology (other than third party equipment within BrainCheck’s direct control),
● the suspension of the Customer’s right to use the BrainCheck Platform in accordance with the terms of this
Agreement.
Exhibit B
Terms and Conditions
for Additional Services
Any Additional Services shall be provided subject to, and in accordance with, the terms of the Agreement
and the following additional terms and conditions:
(a) Customer shall pay the Additional Services Fees in accordance with the applicable Order Form.
(b) The Additional Services will be detailed in separate statement of work. Customer may terminate a
Statement of Work in accordance with the terms of the applicable Statement of Work.
(c) BrainCheck shall use commercially reasonable efforts to provide the Additional Services in
accordance with the schedule as mutually agreed by the Parties.
(d) Except as agreed in writing by the Parties, Customer acknowledges that all ideas and creative and
other work product of whatever type or nature conceived, produced, or developed by BrainCheck and materials of
any nature furnished by BrainCheck to Customer in connection with the Additional Services under this Agreement
and the applicable Order (collectively “Work Product”) shall be and remain the property of BrainCheck.
Notwithstanding the foregoing, to the extent that the Work Product is incorporated or embodied in any Cognitive
Testing Services, the BrainCheck Platform and/or the BrainCheck App, Customer shall have the right to access and
use such Work Product in accordance with the Right to Use and the License.
(e) BrainCheck hereby represents and warrants to Customer that Services shall be performed in
accordance with industry standards and the Work Product shall be of good quality and free from material defects in
workmanship and materials.
(f) The Additional Services are subject to (i) the disclaimers set forth in Section 7.4 of the Terms and
(ii) the limitation of liability of provisions of Section 10 of the Terms.
(g) The parties agree that nothing in this Exhibit B shall be construed as creating a joint venture,
partnership, franchise, agency, employer/employee, or similar relationship between the parties, or as authorizing
either party to act as the agent of the other. BrainCheck is and will remain an independent contractor in its
relationship to Customer. Customer shall not be responsible for withholding taxes with respect to Contractor’s
compensation hereunder. BrainCheck shall have no claim against Customer hereunder or otherwise for vacation pay,
sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment
insurance benefits, or employee or other benefits of any kind. Nothing in this Agreement shall create any obligation between either party and a third party.
