1.  Introduction.  Please read these TERMS AND CONDITIONS (these “Terms”) carefully as they govern your use of (which includes access to) Brain it’s services, including all of our websites and software applications that incorporate or link to these TERMS AND CONDITIONS (collectively, the “Brain it Service”) and any material that is made available through the Brain it Service (the “Content”).

Use of the Brain it Service may be subject to additional terms and conditions presented by Brain it, which are hereby incorporated by this reference into these Terms.

By signing up for, or otherwise using, the Brain it Service, you agree to these Terms. If you do not agree to these Terms, then you must not use the Brain it Service or access any Content.

THESE TERMS CONTAIN A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 14 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.

Service Provider

These Terms and Conditions are between you and Brain it LLC, Walker Ave, Suite 204 Clarendon Hills, IL 60514.

2.  Definitions.  In addition to other terms defined elsewhere in this Agreement, the following terms shall have the following meanings:

(a) “Authorized Users” means Customer and any employee, independent contractor of Customer trained and specifically authorized by Customer to access and use the Software.

(b) “Background IPR” means all Intellectual Property Rights or other proprietary rights in existence at the Effective Date or any time during the term of this Agreement which are owned by BRAIN IT, its subcontractors or any third party, the use of which is necessary for or incidental to the use of the Software;

(c) “Documentation” means the policies, operating instructions and user manuals related to the use of the Software, as may be amended by BRAIN IT from time to time.

 (d)   “Fees” means the fees set forth on the first page hereof.

(e) “Licenses” means all licenses granted to Customer for the Software.

(f) “Professional Services” means the installation, consulting and training services..

(g) “Software” means the application module(s) available for access and use and licensed by BRAIN IT and set forth in Exhibit A hereto, all Documentation, and all derivatives of any of the foregoing by any person, including without limitation any modifications, revisions, and updates provided by BRAIN IT as a result of Professional Services or Support Services.

(h) “Support Services” means services provided by BRAIN IT as described in Section 4 and Exhibit B.   

(i) “Term” means the Initial Term set forth on the signature page together with any renewal term.

(j) “Updates” means all revisions, patches, fixes, new releases and other improvements to the Software provided to Customer under this Agreement.

3.  License Grant.  

(a) Subject to the terms and conditions of this Agreement, BRAIN IT grants to Customer a non-exclusive, personal, non-transferable limited right to access and use the Software on a limited basis and a non-exclusive, personal, non-transferable, limited right to use any computer software or data furnished by BRAIN IT for access to or use of or in connection with the Software for the purpose of evaluating the Software for Customer internal business purposes during the Trial Period (such use, the “Trial Use”), subject to your full compliance with the terms and conditions of this Agreement.

(b) Upon termination of the Trial Period, BRAIN IT grants to Customer a limited, nontransferable, nonexclusive, fee-bearing, right and license during the Term to: (i) use the Software solely for Customer’s internal uses by Customer’s Authorized Users; (ii) access and use the Software using the internet or any other electronic or similar means as may  be approved by BRAIN IT from time to time, solely in connection with Customer’s consultations; and (iii) use the Documentation in support of the foregoing rights.  

(c) Except as provided pursuant to services associated with the use of the Software and in accordance with this Agreement, Customer shall not have the right to market, sublicense, resell, redistribute or otherwise provide or allow any party to use the Software. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer or any User regarding the Software, including any right to obtain possession of any source code or other technical material relating to the Software, or regarding BRAIN IT’s trademarks or service marks. All rights not expressly granted to Customer are reserved to BRAIN IT or its licensors, as applicable. Except as expressly permitted in this Agreement, Customer shall not (i) use the Software or the Background IPR for any purpose other than the purposes described in this Agreement, (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Software or the Background IPR, or (iii) modify, translate, or otherwise create “Derivative Works” (as defined at 17 U.S.C. § 101) of the Software.

(c) All Authorized Users must be under confidentiality obligations to Customer commensurate with those in Section 8 below, protecting Proprietary Information provided to Customer by parties such as BRAIN IT.

(d) BRAIN IT reserves the right to suspend or terminate access by any user accessing the Software under user/login rights granted to Customer, if such use represents or appears to threaten a breach of the terms and conditions of this Agreement, without prejudice to any other remedies available to BRAIN IT.

(e) Customer agrees to access and use the Software only for lawful purposes, and in a manner which does not infringe the rights of, or restrict or inhibit the use and enjoyment of the Software by any other person.  Such restriction includes, without limitation, conduct which: (i) violates any applicable law; (ii) harasses or causes distress or inconvenience to any person via the transmission of obscene or offensive content; and (iii) disrupts the normal flow of any access or use of the Software or Service of any Party.  

(f)  Customer acknowledges that it shall serve as the owner of the records and, as such, acknowledges that Customer is responsible for any and all record retention requirements of state and Federal laws including accountings of disclosures. BRAIN IT will provide the accounting of disclosures controlled by BRAIN IT and required by HIPAA to Customer in accordance with 45 CFR 164.528.   Customer content (defined below) will be retained throughout the term of this agreement.  Upon the termination of the time period described herein, it is the Customer’s responsibility to obtain and retain the records, and Customer acknowledges that BRAIN IT is not required to retain such records 

4.  Fees and Payment.

(a) License Fees and payment shall be due as stated on the signature page. 

(b) Professional Services, travel and expenses related to on-site service activity, and license Fees not paid up front, will be billed upon completion of Professional Services.

 (c) All amounts are due 30 days from invoice without deduction or offset, and if past due will incur interest at 1.5% per month or the maximum rate under applicable law, whichever is less.  In addition, BRAIN IT may in its discretion suspend any or all access to the Software for any breach, and will be entitled to recoup its reasonable attorneys’ fees and other costs of enforcing its rights hereunder, in addition to any other remedies available to BRAIN IT under this Agreement, at law, and in equity.

(d) To the extent of any disputes regarding Fees, Customer shall inform BRAIN IT of the reason for such dispute within thirty (30) days of the invoice date.  The parties shall meet to discuss the disputed amount as soon as reasonably possible and shall work in good faith to promptly resolve such dispute.

(e) All taxes, sales, medical device and any other shipping and handling charges shall be paid by Customer in addition to the License Fees.  In the event BRAIN IT is required to pay any such tax, shipping or handling charge, Customer shall promptly reimburse BRAIN IT therefor.

5. Warranty and Support.

(a) BRAIN IT provides the following limited Software warranty to Customer during the Term, so long as Customer is in compliance with this Agreement.  BRAIN IT will provide the Software and Updates substantially in conformance in all material respects with applicable Documentation.  BRAIN IT will provide the Support Services for problems that may be experienced with the Software, when used in accordance with the Documentation.  The Support Services are Customer’s exclusive remedy and BRAIN IT’s sole and complete obligation with respect to any problems with the Software.  The Support Services will be provided in accordance with Exhibit B.

(b) BRAIN IT warrants to Customer that the Professional Services shall: (i) be performed in a workmanlike manner; and (ii) materially comply with any specifications agreed upon in writing by the parties for a period of thirty (30) days after completion of any Professional Services.  BRAIN IT will re-perform any Professional Services for which it receives written notice within thirty (30) days after performance describing a breach of the foregoing warranty, as Customer’s exclusive remedy and BRAIN IT’s sole and complete obligation with respect thereto.  

(c) Disclaimer. Other than as expressed in this Section 4, NO OTHER WARRANTIES, GUARANTEES, CONDITIONS OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ARE MADE WITH RESPECT TO THE SOFTWARE, HARDWARE OR ANY PROFESSIONAL SERVICES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ERROR-FREE USE, ORIGINALITY, OR FITNESS FOR A PARTICULAR PURPOSE. BRAIN IT IS NOT RESPONSIBLE FOR MANAGING, TRACKING OR PREVENTING UNAUTHORIZED ACCESS BY AUTHORIZED USERS TO PROTECTED HEALTH INFORMATION, AS DEFINED BY THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996, INCLUDING WITHOUT LIMITATION IMPLEMENTING, MANAGING, MONITORING OR TRACKING ACCESS BY AUTHORIZED USERS TO PROTECTED HEALTH INFORMATION IN CONNECTION WITH MINIMUM NECESSARY POLICIES.

6. Term and Termination.

(a) This Agreement shall be effective as of the Effective Date and shall remain in effect for the Trial Period and Initial Term unless terminated by either party if the other party commits a material breach of this Agreement that remains uncured forty-five (45) days after written notice of such breach is delivered to the other party.  

     (b) Upon any termination or expiration of this Agreement:

(i) all license rights and sublicense rights shall immediately terminate, and Customer and Customer’s Authorized Users shall immediately cease use of the Software; (ii)BRAIN IT will provide to Customer, for a period to be determined by BRAIN IT at its sole discretion, a limited access account for Customer to solely view and download Customer’s Information. Accordingly, BRAIN IT will grant Customer a non-exclusive, personal, non-transferable limited right to access the Software on a limited basis solely to view and download Customer Information, subject to Customer full compliance with the terms and conditions sets forth in this Agreement. (iii) Upon termination of the limited access period, BRAIN IT reserves the right to destroy Customer Content in its possession using commercially available methods.                (iv) Customer shall immediately deliver to BRAIN IT any and all materials, content, property, papers, and records of BRAIN IT containing any BRAIN IT Confidential Information or relating to this Agreement or certify to BRAIN IT that it has destroyed any materials, content, property, papers, and records of BRAIN IT containing any BRAIN IT Confidential Information; (iv) any amounts then owed hereunder shall be immediately due and payable, and all obligations of this Agreement which by their nature or effect are intended to survive termination will survive the termination of this Agreement, including without limitation those pertaining to ownership, Proprietary Information, limitations of liability, and Section 11.

(c) Rights of termination are in addition to any other remedies available to the parties, at law or in equity.

7. Ownership; Reservation of Rights.

(a) All rights granted herein are a license, not a sale.  BRAIN IT, its suppliers and licensors reserve and retain all ownership rights in and to the Software and Professional Services. 

(b) All right, title, and interest in and to the trademarks, copyrights, moral rights and patents associated with the Software, BRAIN IT’s Proprietary Information (as defined in Section 8 below), and other proprietary and intellectual property rights of BRAIN IT, are and shall remain vested in BRAIN IT.  

(c) BRAIN IT acknowledges that the content provided by Customer in connection with use of the Software (“Customer Content“) constitutes Proprietary Information of Customer.  BRAIN IT acknowledges and agrees that the Customer Content shall remain the sole and exclusive property of Customer.  

(d) Customer will implement and maintain appropriate administrative, physical and technical safeguards to protect information within the Software. Such safeguards shall comply with federal, state, and local requirements, including the Privacy Rule and the Security Rule, whether or not Customer is otherwise subject to HIPAA. Customer will maintain appropriate security with regard to all personnel, systems, and administrative processes used by Customer or members of your Workforce to transmit, store and process electronic health information through the use of the Software.

(e) Other than the rights licensed to Customer hereunder, Customer has no other implied license or right of any kind regarding the foregoing.  Except as otherwise provided herein, Customer shall not itself, and shall not permit its Authorized Users or any other party to, directly or indirectly, in whole or in part, sublicense, distribute, lease, make available as a service bureau or otherwise allow any third parties any right or access to the Software or Professional Services; disassemble, decompile, decrypt, or reverse engineer, or otherwise attempt to discover or replicate source code for the Software; or alter, modify, or prepare derivative works based on any of the Software or Professional Services. 

8. Additional Covenants. 

   (a) Customer hereby acknowledges and agrees that the Software is a diagnostic tool that is intended to be used in conjunction with medical services provided by competent, qualified licensed medical practitioners, that the Software is not error-free, that any diagnosis or results from using the Software are entirely dependent on the accuracy and thoroughness of user and third party inputs, and that no action should be taken based on any outputs from the Software without first consulting competent, qualified medical practitioners.  Customer agrees that each user of the Software will be required to acknowledge terms consistent with this Section 8(a), and will fully release, indemnify, and hold harmless BRAIN IT from and against any loss, damages, or claims associated with diagnoses provided by the Software.  

(b) Customer will be solely responsible for the professional and technical services Customer provide. BRAIN IT makes no representations concerning the completeness, accuracy or utility of any information in the Software, or concerning the qualifications or competence of persons who placed it there. BRAIN IT has no liability for the consequences to Customer or Customer patients of use of the Software.

(c) Brain IT is not responsible for the accuracy or completeness of information available from or through the Software. Customer assume full risk and responsibility for the use of information obtained from or through the Software, and neither Brain IT nor any of its licensors or data providers are responsible or liable for any claim, loss, or liability arising from use of the information

(d) By accessing or using the Software, Customer: (i) warrants and represents that it has the right to use all Customer Content submitted by Customer in connection with the Software and that the use of the Customer Content pursuant to this Agreement will not infringe any of the rights of any third party; (ii) hereby grants to BRAIN IT the right to display, perform, adapt, modify and otherwise use the Customer Content in connection with the Software or Professional Services hereunder; and (iii) hereby, for purposes of business analytics related to the usage of the Software,  grants to BRAIN IT a right to access, use, store, manipulate, distribute and publish all data transmitted by Customer via the Software provided that such data is de-identified in accordance with 45 C.F.R. §164.514, does not identify any physician or healthcare facility, and does not constitute Confidential Information of Customer.  Customer understands that the Software depends on the accuracy of data and information provided by Customer to BRAIN IT under this Agreement.  Customer will ensure that all data or information provided to BRAIN IT is accurate and complete in all respects and BRAIN IT shall have no obligation to review any Customer data or information for accuracy.  This license shall survive termination or expiration of this Agreement.

(e)  Customer shall: (i) be responsible for any act or omission of Customer and any and all Authorized Users in connection with the Software hereunder; (ii) implement security and other policies and procedures necessary to limit access to the Software to the Authorized Users, including, without limitation, the maintenance of the confidentiality of all usernames and passwords and/or created pursuant to this Agreement as part of the Software; and (iii) notify BRAIN IT immediately and remain responsible for any security breach , including but not limited to loss or misuse of a password, or other unauthorized use of the Software.

     9. Confidentiality  

(a) “Proprietary Information” is, collectively and without regard to form, any third party information which either party has agreed to treat as confidential, and Confidential Information and Trade Secrets.   “Confidential Information” means non-public information of value to its owner (other than Trade Secrets) and that is the subject of its owner’s reasonable efforts to maintain confidentiality thereof.  Without limitation of the foregoing, the terms and conditions of this Agreement are BRAIN IT Confidential Information.  “Trade Secrets” means information that derives actual or potential economic value because it is not generally known to, and by proper means not readily ascertainable by, others who can obtain economic value from its disclosure or use; and is the subject of commercially reasonable efforts to maintain its secrecy. Without limitation of the foregoing, BRAIN IT’s Trade Secrets include the Software and any source code associated with the Software.

(b)  Each party shall protect the Proprietary Information of the other party with the same standard of protection and care that it uses for its own Proprietary Information, but in no event less than reasonable care and diligence. Neither party shall disclose, publish, transmit or make available all or any part of such Proprietary Information except in confidence or a need-to-know basis to its own employees and third party contractors who have undertaken a written obligation of protection and confidentiality and its legal and professional advisors under similar confidentiality obligations, and shall not duplicate, transform or reproduce such Proprietary Information except as expressly permitted hereunder.

(c) Any information will not be considered Proprietary Information to the extent, but only to the extent, that such information:  (a) is already known to the receiving party free of any confidentiality obligation at the time it is obtained; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) is rightfully received from a third party without restriction and without breach of this Agreement; or (d) is required to be disclosed by law or court order.  In the event that either party is required by law or court order or regulatory authority to disclose any Proprietary Information, such disclosure may be made only after the other party has been notified and has had a reasonable opportunity to seek a court order or appropriate agreement protecting disclosure of such Proprietary Information.

10. Indemnification.

(a) BRAIN IT will, at its own expense, defend any suit or claim instituted against Customer and will indemnify Customer against any award of damages and reasonable costs against Customer in a final judgment by a court of competent jurisdiction, or any amount in settlement or compromise, arising out of such suit or claim brought by a third party, if and to the extent alleging that the Software infringes or misappropriates such third party’s U.S. patent, copyright, trademark or trade secret, enforceable in the U.S.A.  If the use of the Software becomes, or in BRAIN IT’s opinion is likely to become, the subject of such a claim, BRAIN IT at its option and expense may either (i) procure the right for Customer to continue to use the Software as permitted under this Agreement or (ii) replace or modify the Software to be non-infringing.  Alternatively, BRAIN IT may terminate this Agreement upon 30 days written notice to Customer, require Customer to return promptly any materials associated with the Software in its possession, and return to Customer such prepaid license Fees as Customer may have paid to BRAIN IT for unused subsequent time periods of use of the Software, prorated on a daily basis.  BRAIN IT will have no liability for any infringement or misappropriation to the extent caused by or contributed to by (i) any modification or alteration of the Software performed other than by BRAIN IT, (ii) use of the Software other than as specified under this Agreement and the related Documentation, (iii) combination or use of the Software with non-BRAIN IT software, data, materials or services, (iv) any third-party software, content or services, or (v) any acts of Customer in violation of this Agreement.  This Section 9(a) sets forth the exclusive remedy of Customer and the sole and complete liability of BRAIN IT with respect to any claims of infringement or misappropriation.

(b) Customer shall defend, indemnify, and hold BRAIN IT and its owners, officers, directors, employees, representatives, agents and/or affiliates harmless at all times from and against any and all losses, expenses or damages, or any third party claims, to the extent arising from the conduct of (i) Customer’s business, including without limitation, any medical decision or diagnosis made by Customer; (ii) any data or information transmitted, created, or used in connection with the Software by Customer, including the accuracy, quality, completeness, legality, confidentiality, adequacy, reliability or usefulness of such data or information; (iii) any breach of this Agreement or violation of applicable law by Customer; or (iv) the acts, omissions, negligence, or willful misconduct of any Authorized User or other person accessing or using the Software through Customer.  BRAIN IT shall provide Customer with prompt written notice of any claim, action or proceeding to which the foregoing indemnity relates, and BRAIN IT shall have the right to participate in the defense thereof at BRAIN IT’s expense.  This Section 9(b) will survive termination of this Agreement.

(c) The obligations of this Section 9 are conditioned upon the indemnifying party receiving prompt written notice of any claim and reasonable cooperation to its sole control of the defense and any settlement thereof; provided that the indemnifying party shall not make any settlement admitting the other’s liability without its consent, not to be unreasonably withheld.

(d)   With regard to Trade Secrets, the obligations in this Section 9 shall continue for so long as such information continues to be a Trade Secret.  With regard to Confidential Information, the obligations in this Section 8 shall continue for the Term of this Agreement and for four (4) years thereafter.

11. Limitations of Liability.

NEITHER BRAIN IT NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS, RESELLERS OR REPRESENTATIVES (COLLECTIVELY “BRAIN IT PARTIES”) SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, TIME, SAVINGS, DATA, OR GOODWILL, DAMAGES ARISING FROM USE OF OR INABILITY TO USE THE SOFTWARE OR PROFESSIONAL SERVICES, OR COST OF REPLACEMENT GOODS OR SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THE SOFTWARE, PROFESSIONAL SERVICES OR OTHERWISE RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF IT OR THEY HAS OR HAVE BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT FOR ANY DIRECT DAMAGES FOR TANGIBLE PROPERTY DAMAGE PROXIMATELY CAUSED BY BRAIN IT, THE MAXIMUM AGGREGATE LIABILITY OF THE BRAIN IT PARTIES IN ALL EVENTS SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY CUSTOMER TO BRAIN IT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE FIRST CLAIM.

12.  General.

(a) All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (i) by hand, (ii) by certified mail, postage prepaid, return receipt requested; or (iii) by a nationally recognized overnight courier service to the address set forth on the signature page.

(b) Customer may not assign its rights or duties under this Agreement, by operation of law or otherwise, without the prior written consent of BRAIN IT; any attempted assignment in violation of the foregoing shall be void and of no effect. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.

(c)  This Agreement shall be exclusively construed, governed and enforced under the laws of the U.S. and the State of Illinois (without regard to rules governing conflict of laws). The parties agree that all actions relating in any manner to this Agreement shall be brought only in a federal or state court of competent jurisdiction located in Cook County, Illinois.  Each party consents and submits to the personal jurisdiction of such courts and irrevocably waives any and all defenses inconsistent with this subsection.  Each party irrevocably waives any rights to trial by jury in any action relating hereto.

(d)  In addition to any other remedies at law, BRAIN IT shall be entitled to a restraining order,   injunction (without posting a bond) or other equitable remedy in the event Customer breaches or threatens to breach any provision hereof, which breach does or would jeopardize BRAIN IT’s Proprietary Information; and shall be entitled to recover applicable license Fees for any use of Software that exceeds those rights expressly granted in this Agreement.

(e) Performance by any party of any obligation hereunder (other than the payment of money) shall be excused if and for so long as such breach or failure to perform is caused by a force majeure event or circumstance beyond the reasonable control of the party affected which prevents or delays the performance of such party’s obligations hereunder, including, without limitation, power failure, computer malfunction, telecommunications failure, wars, terrorism, cyberwarfare, riots, government action, strikes, labor disputes, fire, floods, hurricanes, or other acts of God.  A party so affected shall provide the other party prompt notice of such prevention or delay.  If any party fails to perform any duty or obligation hereunder as a result of this Section 11(e), said party shall be required to fulfill its obligations hereunder within a reasonable time after such force majeure event ceases to exist.

(f) Each party agrees to work together to issue a press release that is mutually agreeable to both parties. Prior written consent is required from both parties prior to distribution of the release. BRAIN IT may use Customer’s logo or Customer’s name for (i) promoting and advertising Customer as a BRAIN IT customer on BRAIN IT’s website and (ii) promoting and advertising Customer as a BRAIN IT customer on sales and marketing slides to be used by BRAIN IT salespersons.

(g) This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed an original and all of which shall constitute the same instrument.

(h) In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

(i) This Agreement and its Exhibits constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all other and prior written and oral agreements, representations and understandings with respect thereto.  No modification or amendment of this Agreement shall be valid unless made in writing and signed by an authorized representative of the party sought to be charged therewith.  No waiver shall constitute, or be construed as, a waiver of any other obligation or condition of this Agreement.

13.  Your Use of the Brain it Service 

Creating a Brain it  account

You may need to create a Brain it account to use all or part of the Brain it Service. Your username and password are for your personal use only and should be kept confidential. You understand that you are responsible for all use (including any unauthorized use) of your username and password. Notify our Customer Service if your username or password is lost or stolen, or if you believe there has been unauthorized access to your account.

Brain it may reclaim, or require you to change, your username for any reason.

Your rights to use the Brain it Service

Access to the Brain it Services

Subject to your compliance with these Terms (including any other applicable terms and conditions), we grant to you limited, non-exclusive, revocable permission to make personal, non-commercial use of the Brain it Service and the Content (collectively, “Access“). This Access shall remain in effect unless and until terminated by you or Brain it. You agree that you will not redistribute or transfer the Brain it Service or the Content.

The Brain it software applications and the Content are licensed, not sold or transferred to you, and Brain it and its licensors retain ownership of all copies of the Brain it software applications and Content even after installation on your Devices.

Brain it’s Proprietary Rights

The Brain it Service and the Content are the property of Brain it or Brain it’s licensors. All Brain it trademarks, service marks, trade names, logos, domain names, and any other features of the Brain it brand (“Brain it Brand Features“) are the sole property of Brain it or its licensors. These Terms do not grant you any rights to use any Brain it Brand Features whether for commercial or non-commercial use.

You agree to abide by the Brain it User Guidelines and not to use the Brain it Service, the Content, or any part thereof in any manner not expressly permitted by these Terms.

Payments and cancellation

Billing

You may purchase a Brain it Subscription directly from Brain it or through a third party either by:

• paying a subscription fee plus additional charges and applicable taxes on a monthly basis or some other recurring interval disclosed to you prior to your purchase.

Tax rates are calculated based on the information you provide and the applicable rate at the time of your monthly charge.

If you purchase a Paid Subscription using a code, gift card, pre-paid offer, or other offer provided or sold by or on behalf of Brain it for access to a Paid Subscription (“Codes“), you hereby agree to the Brain it terms.

Price and tax changes

Brain it may from time to time make changes to Paid Subscriptions, including recurring subscription fees, the Pre-Paid Period (for periods not yet paid), or Codes, and will communicate any price changes to you in advance. Price changes will take effect at the start of the next subscription period following the date of the price change and, by continuing to use the Brain it Service after the price change takes effect, you will have accepted the new price. If you do not agree to a price change, you can reject the change by unsubscribing from the applicable Paid Subscription prior to the price change going into effect.

Tax rates are based on the rates applicable at the time of your monthly charge. These amounts can change over time with local tax requirements in your country, state, territory, county, or city. Any change in tax rate will be automatically applied based on the account information you provide.

Renewal and Cancellation

Your payment to Brain it will automatically renew at the end of the applicable subscription period, unless you cancel your Paid Subscription before the end of the then-current subscription period. Contact our Customer Support team for instructions on how to cancel. The cancellation will take effect the day after the last day of the current subscription period. We do not provide refunds or credits for any partial subscription periods, except as expressly stated in these Terms.

If you have purchased a Paid Subscription using a Code, your subscription will automatically terminate at the end of the period stated with your Code.

User guidelines

We’ve established guidelines for using the Brain it Service (“Brain it User Guidelines“). In using the Brain it Service, you must comply with the Brain it User Guidelines, as well as all applicable laws, rules, and regulations, and respect the intellectual property, privacy, and other rights of third parties.

Brand accounts

If you establish a Brain it account on behalf of a company, organization, entity, or brand (a “Brand,” and such account a “Brand Account“), the terms “you” and “your,” as used throughout these Terms (including other Brain it terms and conditions incorporated by reference herein), apply to both you and the Brand.

If you create a Brand Account, you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms (including any other applicable Brain it terms and conditions) and to bind the Brand to these Terms.

14. Problems and Disputes 

Suspending and terminating the Brain it Service

These Terms will continue to apply to you until terminated by either you or Brain it. Brain it may terminate these Terms (including any additional terms and conditions incorporated herein) or suspend your access to the Brain it Service at any time if we believe you have breached any of these Terms, if we stop providing the Brain it Service or any material component thereof, or as we believe necessary to comply with applicable law. If you or Brain it terminate these Terms, or if Brain it suspends your access to the Brain it Service, you agree that Brain it shall have no liability or responsibility to you, and (except as expressly provided in these Terms) Brain it will not refund any amounts that you have already paid. You may terminate these Terms at any time, in which case you may not continue accessing or using the Brain it Service. To learn how to terminate your Brain it account, please use the Customer Support.

The following sections shall survive termination: Sections 13 (Your Use of the Brain it Service) (except as set forth therein), 14 (Problems and Disputes) as well as any other sections of these Terms that, either explicitly or by their nature, must remain in effect even after termination of these Terms.

15.  Warranty and Disclaimer.

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

16.  Limitation of liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES

16.  Miscellaneus 

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent.  Company may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of [Illinois] without regard to its conflict of laws provisions.  

EXHIBIT A  

Software and Monthly License Fees

• Brain it Platform Basic access $0 (USD)   

• Brain it Platform Premium access  $15.49 (USD)  

• Brain it Platform Business access $21.49 (USD)

• Brain it Platform Enterprise access (to be determined individually with each Enterprise client) 

EXHIBIT B 

BRAIN IT Support Services

1. BRAIN IT Obligations.  If Customer has paid all Fees due hereunder, during the Term, and has otherwise complied with this Agreement, BRAIN IT will provide the Support Services to Customer as described in this Exhibit B.  BRAIN IT may choose, at its sole discretion, to provide Customer with requested support and other services other than those set forth in this Exhibit B, in accordance with BRAIN IT’s then current standard time and materials rate and expense reimbursement policies.  BRAIN IT shall give Customer’s Customer Contact (as defined below), notice when any such support or other services shall be in addition to any Fees paid herein prior to the commencement of such support or other services. 

1.  BRAIN IT shall designate a qualified employee to serve as Customer’s primary contact (the “BRAIN IT Contact”) with respect to BRAIN IT’s obligations under this Agreement.   The BRAIN IT Contact shall generally be available to confer with Customer at Customer’s reasonable request and Customer shall be entitled to rely upon statements from the BRAIN IT Contact as authorized by BRAIN IT.  BRAIN IT shall promptly notify Customer of changes in the BRAIN IT Contact. 

2.  Neither BRAIN IT, Customer, their employees nor their affiliates (i) are excluded from participation in any federal health care program, as defined under 42 U.S.C. §1320a-7b (f), for the provision of items or services for which payment may be made under such federal health care programs or (ii) have been convicted (as that term is defined under 42 U.S.C. §1320a–(7)(i)) of a criminal offense related to health care.  BRAIN IT further represents to Customer that no final adverse action, as such term is defined under 42 U.S.C. §1320a-7e (g), has occurred or is pending or threatened against BRAIN IT, its employees or affiliates.

3. BRAIN IT agrees to notify Customer upon receipt of a notice of intent to exclude, or actual notice of exclusion, of BRAIN IT, any employee providing services under this Agreement, or an affiliate of BRAIN IT, from any federal health care program.  BRAIN IT agrees to indemnify and hold Customer harmless from and against any loss, liability, judgment, penalty, fine, damages (including punitive and/or compounded damages), costs (including reasonable attorneys’ fees and expenses) incurred by Customer as a result of BRAIN IT’s failure to notify Customer of BRAIN IT, employee or an affiliate’s exclusion from any federal health care program.

2. Customer Obligations.  

   1. Customer shall designate a qualified employee to serve as BRAIN IT’s primary contact (the “Customer Contact”) with respect to installation, training and support matters hereunder.  The Customer Contact shall generally be available to confer with BRAIN IT at BRAIN IT’s reasonable request.  The initial Customer Contact is designated on the signature page to this Agreement.  Customer shall promptly notify BRAIN IT of changes in the Customer Contact. 

   2. Customer Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

   3. Customer shall install and maintain, at its expense, an operational environment sufficient to reasonably support the Software in accordance with BRAIN IT published hardware and telecommunication specifications.  Customer’s failure to adhere to published specifications may result in additional Professional Services to remediate issues which were determined to be customer’s responsibility. 

Telecommunication Specifications: 

• High Speed broadband access link capable of delivering a sustained minimum 1Mbps upload and download speed

• Secure wireless infrastructure compatible with IEEE 802.11 standards providing adequate coverage and bandwidth for the area using BRAIN IT software

• Network firewall capable of supporting the following:

  • Standard HTTP and HTTPS TCP Ports 80 and 443 for secure internet connection to BRAIN IT servers

  • Outbound TCP Port 17990 & 17992 for telepresence session management

• Exemption from proxy servers, Internet filters, or security devices that may hinder or otherwise disable communication to BRAIN IT equipment. 

• BRAIN IT is not responsible for the connectivity of the users’ devices necessary for the use of the platform.

3. Software Support.  BRAIN IT will provide Customer with the following Support Services for the Software:

(a) Help Desk.  Requests will be address during normal business hours. 

(b) Minor Enhancements.  BRAIN IT shall provide Customer access to Minor Enhancements to the Software at no additional cost to Customer.  “Minor Enhancement” means any minor modifications or bug fixes made by BRAIN IT to the Software and made generally available to all Software customers without additional charge.

(c) Major Enhancements. BRAIN IT shall provide Customer access to all Major Enhancements to the Software at no additional cost to Customer.  “Major Enhancement” means any major functional revision to the Software (designated by a renumbered release number such as 1.0.0 to 2.0.0) released by BRAIN IT during the Term and made generally available to all software customers without additional charge.

4. Support Conditions.  Customer shall document and promptly report all errors of the Software or any of its components to BRAIN IT.  BRAIN IT shall not be obligated to provide support under any one or more of the following circumstances: (a) the requested support is for software other than that provided hereunder, (b) the Software has been modified or serviced other than by BRAIN IT or a BRAIN IT authorized third party vendor, (c) Customer has misused the Software or failed to use it in accordance with the Documentation, (d) BRAIN IT reasonably determines that any part of the Software has been subjected to unusual physical or electrical stress, such as accident, neglect, misuse, improper programming or transportation, failure of electrical power, air conditioning or humidity control, and (e) Customer is not in full compliance with the terms of this Agreement or any other agreement with BRAIN IT. BRAIN IT’s support obligations shall not include electrical work external to the Software such as telephone line work and interconnection work or the installation or repair of accessories, alterations, attachments, parts or devices not furnished by BRAIN IT.  The support obligations contained in this Agreement are BRAIN IT’s sole obligations and Customer’s sole and exclusive remedy with respect to support for the Software.