End User Licence Agreement

 

iCognative® End User License Agreement

Brainwave Science Inc.’s ("BWS") License Agreement ("License" or "Agreement") is a legal agreement between You (either an individual or an entity, who will be referred to in this License as "You" or "Your") and BWS for the use of the iCognative® Brain Fingerprinting software applications, and which may include associated media, printed materials, and other components and software modules including, but not limited to, computer databases, drivers and storage devices ("Product"). The Product also includes any software updates and upgrades that BWS may provide to You or make available to You, or that You obtain after the date You obtain Your initial copy of the Product, to the extent that such items are not accompanied by a separate license agreement or terms of use. 

BY INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS BWS LICENSE AGREEMENT INCLUDING, BUT NOT LIMITED TO, THE AGREEMENT TO BINDING ARBITRATION SET FORTH HEREIN OF ANY DISPUTES, ARISING FROM THIS AGREEMENT OR ANY OTHER CONDUCT, ACTS OR OMISSIONS, WHICH MAY ARISE BETWEEN YOU AND BWS, ITS AFFILIATES, RE-SELLERS, PARTNERS AND/OR AGENTS.  IF YOU DO NOT AGREE TO ALL TERMS OF THIS AGREEMENT, YOU HAVE NO RIGHTS TO THE PRODUCT AND SHOULD NOT INSTALL, COPY, DOWNLOAD, ACCESS OR USE THE PRODUCT.

The Product is protected by copyright laws as well as other intellectual property laws. The Product is licensed and not sold.

1. AUTHORITY TO ACCEPT TERMS. If you are entering into this License on behalf of an entity, you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to the terms of the License, neither you nor the entity may use the software application(s). 

 

2. GRANT OF LICENSE. BWS grants you a non-exclusive, nontransferable license to install and use the Product subject to all the terms and conditions set forth here within.

 

3. ADDITIONAL LIMITATIONS. You may not reverse engineer, decompile, or disassemble the Product, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation. You may not rent, lease, lend or transfer the Product, or host the Product for third parties without the express written consent of BWS. The Product is licensed as a single integral product; its component parts may not be separated for use on more than one computer. The Product may include copy protection technology to prevent the unauthorized copying of the Product or may require original media for use of the Product on the computer. It is illegal to make unauthorized copies of the Product or to circumvent any copy protection technology included in the Product. The software may not be resold either by You or a third-party customer without the prior written permission of BWS. All rights not expressly granted to You are retained by BWS.

 

4. THIRD PARTY SOFTWARE. The Product may contain third party software all which is protected by copyright law and other applicable laws.

 

5. PROPER USE OF SOFTWARE. You acknowledge that the continued integrity of the Software and BWS’ obligations under this Agreement are dependent upon the proper use and maintenance of the Software by Customer. Proper use and maintenance mean You will (i) only permit Authorized Users to use the Product; (ii) use the Software according to the Documentation; and (iii) follow instructions for installing new Revisions and Updates, and for correcting or circumventing bugs. You shall not export, rent, lease, grant a security interest in, or otherwise transfer rights to the Software or Documentation; or remove any proprietary notices or labels on the Software, Documentation, or any copies thereof.

 

6. CONSENT TO USE OF DATA.
   1. The software (main application and plug-ins) may contact server periodically to check for software updates and vulnerability fixes. BWS warrants that it will not search or intentionally upload any user information.
   2. You agree that BWS and its affiliates may collect and use information You provide as a part of any such support services related to the Product. BWS agrees not to use this information in a form that personally identifies You.

 

7. INTELLECTUAL PROPERTY RIGHTS. Subject to the license grant hereunder, all right, title and interest in and to the Product, the accompanying printed materials, and any copies of the Product are owned by BWS and its licensors.
8. OWNERSHIP AND PROPRIETARY RIGHTS. Title to, ownership of, and all rights in patents, copyrights and trade secrets in the Software does not transfer to You and shall remain in BWS and/or BWS' licensors. Maintenance software, including diagnostic routines, test equipment and documentation (“Property”), which are supplied by BWS for the purposes of this Agreement, are and shall at all times remain the exclusive property of BWS. You shall not make available or disclose such Property to any third parties, and shall take appropriate action, by instruction or agreement with its employees who are permitted access, to satisfy its obligations hereunder.

 

9. EXPORT RESTRICTIONS. You acknowledge that Product is of U.S. origin. You agree to comply with all applicable foreign, federal, state and local laws and regulations governing Your use of the Product. Without limiting the foregoing, in the event that this Agreement permits export of the Product outside the U.S., You shall be solely responsible for compliance with all applicable U.S. export laws, rules, and regulations. The Product is subject to the U.S. Export Administration Regulations and other U.S. law, and may not be exported or re-exported to certain countries (currently Cuba, Iran, Libya, North Korea, Sudan and Syria) or to persons or entities prohibited from receiving U.S. exports (including those (a) on the Bureau of Industry and Security Denied Parties List or Entity List, (b) on the Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, and (c) involved with missile technology or nuclear, chemical or biological weapons).

 

10. WARRANTY The following warranties are in lieu of all warranties, express, implied, or statutory, including but not limited to, any implied warranties of merchantability and fitness for a particular purpose and of any other warranty obligation on the part of BWS. There are no warranties that extend beyond the description on the face hereof.

 

1. BWS warrants that the software is properly licensed, and that BWS otherwise has the right to distribute the software in accordance with this Agreement.
2. BWS further warrants that the media in which the software product is delivered to you is undamaged and free from mechanical defects.
3. BWS warrants that the Software does not violate the copyright or other intellectual property rights of any third party.

 

11. Leased Equipment (If Applicable) Pursuant to the terms of the Purchase Order, hardware (“EQUIPMENT”) sufficient to operate the iCognative® system, may be loaned to You for the term of the Software License. BWS shall be responsible for delivering all such EQUIPMENT in good working order.  Leased EQUIPMENT is, and at all times remains, the property BWS.  

 

You maintain the responsibility to care for the equipment and ensure that it is retained in a safe environment. You shall not deface or destroy this property in any way.  You may not install or use any software other than software owned or approved by BWS and made available to You in accordance with this Agreement.

 

Identification and inventory labels/tags may be placed upon the EQUIPMENT by BWS. These labels/tags are not to be removed or modified. If they become damaged or missing, contact tech support for replacements.

 

You shall be required to reimburse BWS for any damage to, loss of, or failure to return the EQUIPMENT upon conclusion of the license.

BWS shall purchase and maintain, for the duration of the EQUIPMENT loan, an Applecare® Plan on all EQUIPMENT for the benefit of You.  All service, support and damage coverages shall be governed by the terms and conditions thereof as may be amended, from time to time, by the Plan issuer. (https://www.apple.com/in/support/products/). You acknowledge and agree that you shall be responsible for all required plan deductibles and/or excluded charges.

 

12. Disclaimers Other than the warranty set forth explicitly herein, and to the maximum extent permitted by applicable law, BWS, its authorized resellers and their subsidiaries provides the Product and any support services related to the Product ("Support Services") AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Product, and the provision of or failure to provide support services.

 

1. BWS, its affiliates, re-sellers, partners and/or agents shall also not be liable for any products or parts that have been subject to misuse (including any use in violation of Seller or the manufacturer’s instructions), and neglect (including inadequate maintenance, improper storage, incorrect installation or that have been damaged in transit).
2. BWS, its affiliates, re-sellers, partners and/or agents shall have no liability for damages, direct or consequential, for nonconformity in the performance of the Product which results from improper utilization of the Product. This disclaimer for improper utilization shall include, but not be limited to, improper installation of, or user input into, the Product.
3. BWS will use reasonable commercial efforts to ensure all hardware and software products will perform substantially in conformance with the specifications published in the Documentation during the Warranty Period. However, BWS, its affiliates, re-sellers, partners and/or agents shall have no liability for damages, direct or consequential, arising from hardware or software malfunction of any kind due to circumstances not under its direct control.  This disclaimer shall include, but not be limited to, Product malfunction resulting from i) unforeseen hardware failure of any cause or source, ii) incompatibility or conflict with user’s other software programs or their respective updates, iii) errors occurring during transmission of software or updates and iv) software malfunction arising from malware attack or any other intervening criminal or impermissible actions of any person or entity not party to this agreement.

 

13. LIMIT OF LIABILITY AND EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BWS, ITS AUTHORIZED RESELLERS OR THEIR SUBSIDIARIES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS LICENSE, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF BWS, EVEN IF BWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

 

14. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that You might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of BWS, its resellers and their subsidiaries under any provision of this License and Your exclusive remedy for all of the foregoing shall be limited to the amount actually paid by You for the Product. The foregoing limitations, exclusions and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

 

BWS, its affiliates, re-sellers, partners and/or agents  shall not be liable for failure to fulfill its obligations herein or for delays in delivery or service due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, riots, war acts of terrorism, delays in transportation or inability to obtain labor or materials through regular sources. 

 

15. This Agreement will be governed by and construed in accordance with the laws of the State of New York, USA excluding that body of laws known as conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You may not assign this Agreement or any right or interest hereunder, by operation of law or otherwise, without BWS’ express prior written consent. Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery services, or by certified mail, and in each instance, will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable ordering document or invoice or to such other address as may be specified by either party to the other in accordance with this section. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy or supplies, war, terrorism, riot, or acts of God. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. This Agreement, including BWS’ support and maintenance services terms constitutes the entire and exclusive agreement between the parties concerning its subject matter and supersedes all prior written and oral understandings and agreements between the parties regarding its subject matter. The terms and conditions contained in any customer purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by BWS and will be deemed null and of no effect.

 

16. DISPUTE RESOLUTION AND INJUNCTIVE RELIEF The Parties shall exercise their best efforts to resolve by negotiation any and all disputes, controversies or differences between them.  

 

In the absence of an explicit written agreement to the contrary, any and all disputes between the parties, or any principal, executive or agent of the parties, whether based in contract, tort, statute or any other basis for legal liability, shall fall both within the scope of the arbitration provision herein and within the jurisdiction of the Arbitration authority.  Any and all such disputes, controversies or differences that are not settled by negotiation shall be submitted to the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitral award shall be final and binding upon both parties.  

 

 

The arbitrator shall not award attorney’s fees or exemplary damages. Notwithstanding the forgoing, the Arbitrator shall award attorney’s fees and costs against a party found to have brought any claim (or counterclaim) that is found to be frivolous or wholly without merit.  The arbitrator shall also award attorney’s fees, costs and actual damages incurred by a party required to answer or litigate a claim within an alternate court or tribunal where it is determined that such claim(s) come within this scope of this arbitration agreement.  

 

17. COMPLIANCE WITH LICENSES. If You are a business, company or organization, You agree that upon request from BWS or its authorized representative You will within thirty (30) days fully document and certify that use of any and all BWS Products at the time of the request is in conformity with Your valid licenses from BWS.

 

18. TERMINATION. The license is effective until terminated by You or BWS. Your rights under this license will terminate automatically without notice from BWS if You fail to comply with any term(s) of this license. Upon termination of the license, you shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Addendum

 

Addendum to iCognative® End User License Agreement

For Users of iCognative® Web-Based Application(s)

 

1. General Information

 

The iCognative® web application is designed with the importance of confidentiality and privacy for law enforcement agencies in mind. The application is built to ensure that sensitive information is kept secure and private within servers designated by the End User.

 

1. The End User of the iCognative® web application (“Application”) interacts with the front-end web application. This application runs in a browser on the End User’s computer.

 

2. This Application is connected with Brainwave’s API server. The End User is responsible for establishing a secure, cloud-based or local private server (hereinafter “End User Server”) to host its own database as well as a storage service.  Brainwave Science will not receive or have access to any data within the End User Server.  However, until and unless the End User establishes an End User Server, Brainwave’s API Server will provide a temporary database and storage service (“Brainwave Temporary Server”).

 

3. Until and unless the End User establishes an End User Server, all case-related data (i.e., case information, subject information, facts along with images, documents and reports) will be directly stored onto the Brainwave Temporary Server. Once an End User has established their End User Server, all case-related data will be directly stored onto the End User Server.

 

4. While the End User is conducting a test, only the raw data from the hardware is communicated to the analysis engine on Brainwave’s API Server for real time results and signal processing. No case-related information is transferred to the analysis engine. Once the test is completed, testing information and results are also uploaded to the End User Server. If the End User has not established an End User Server, testing information and results will be uploaded to the Brainwave Temporary Server. 

 

5. Every time an End User conducts analysis, or replays or views a test summary, only the raw test data files are communicated to analysis engine for analysis results. Brainwave Science will not have access to this data as no case-related information is transferred to the analysis engine or to Brainwave’s server.

 

6. Apart from the above, all other data used by the front-end web application is stored directly onto the End User Server.

 

 

 

1. Web-Based Application Data Flow Diagram

 

 

 

C. iCognative® Web-Based Application(s) Additional Acknowledgements and Disclaimers 

1. GENERAL

1. By installing, copying, downloading, accessing or otherwise using the Web-Based Product, You acknowledge your understanding of, and full consent to, BWS’ handing of data as outlined within this Addendum. 
2. You further acknowledge and agree that BWS cannot be responsible to You, or any third party, for violation(s) of any data privacy laws or ordinances, loss of data and/or data breaches relating to your maintenance or use of the End User Server. 
3. You agree that You shall be fully and solely responsible for any claims arising from loss of data or data breaches involving private data and/or protected health information from the End User Server.  You further agree that You shall be fully and solely responsible for complying with all applicable data privacy laws and ordinances relating to the use and maintenance of the End User Server.   
4. Based upon the forging, You agree that You shall hold BWS harmless for any and all claims by You relating to your use or maintenance of the End User Server.  You further agree that You will fully defend and indemnify BWS against any and all claims by third parties, public or private, relating to your use or maintenance of the End User Server including, without limitation, a) any failure to comply with data privacy laws; b) any loss of data and c) any data breach event(s). 

2. BRAINWAVE TEMPORARY SERVER: 

1. The End User is responsible for establishing a secure, cloud-based or local private server (hereinafter “End User Server”) to host its own database as well as a storage service.  Brainwave Science will not receive or have access to any data within the End User Server.  However, until and unless the End User establishes an End User Server, Brainwave’s API Server will provide a temporary database and storage service (“Brainwave Temporary Server”) in order to allow BWS’ Partners and other End Users to test and display the iCognative® system.   

2.  BWS will not access or disclose data transmitted to the Brainwave Temporary Server and will take reasonable commercial steps to encrypt and otherwise ensure the privacy and security of data transmitted to Brainwave Temporary Server.  HOWEVER, YOU ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE BRAINWAVE TEMPORARY SERVER IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. BWS EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.

3. Based upon the forging, You agree that You shall hold BWS harmless for any and all claims by You relating to your use of the Brainwave Temporary Server.  You further agree that You will fully defend and indemnify BWS against any and all claims by third parties, public or private, relating to your BWS’ maintenance of the Brainwave Temporary Server including, without limitation, a) any failure to comply with data privacy laws; b) any loss of data and c) any data breach event(s).  PRIVACY POLICY FOR USERS OF ICOGNATIVE® WEB-BASED APPLICATION(S)

4.  

         Consistent with the forgoing, data collected, handled and disseminated by the Brainwave Temporary and Brainwave API Servers shall be subject to BWS’ Privacy Policy.