Master Services Agreement

BIOBRAIN TERMS OF USE:

BY EXECUTING AN ORDER FORM AND/OR BY USE OF THE SERVICE, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SERVICE AND THE CONTENT (AS DEFINED IN THE DEFINITIONS SECTION AT THE END OF THIS DOCUMENT).IF YOU ARE ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. TO THE EXTENT THAT THERE IS ANY CONFLICT BETWEEN A PROVISION OF THE TERMS AND CONDITIONS AND OF AN ORDER FORM, THESE PROVISIONS OF THESE TERMS AND CONDITIONS SHALL PREVAIL.

Welcome

As part of the Service, BioBrain will provide you with use of the Service, the Content, certain Support Services (depending on selection in the Order Form) and other materials supplied by or on behalf of Biobrain. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the BioBrain website incorporated by reference herein, including but not limited to BioBrain’s privacy policy. For reference, a Definitions section is included at the end of this Agreement.

1. Privacy & Security; Disclosure

BioBrain’s privacy policy may be viewed at https://biobrain.com.au/privacy_policy/ . BioBrain reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that occasionally BioBrain may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that BioBrain can disclose the fact that you are a paying customer. BioBrain may monitor, record and store your and your User use of and access to the Service, in compliance with its privacy policy to determine the Service is being used in accordance with the terms of this Agreement.

2. Service & Restrictions

BioBrain hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service during the Term, solely for your own internal normal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by BioBrain and its licensors.

You may not access and use the Service if you are a direct competitor of BioBrain, except with BioBrain’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service, the BioBrain Technology or the Content in any way or allow the Service, BioBrain Teachnology or the Content to become the subject of any charge, lien or encumbrance; (ii) modify or make derivative works based upon the Service, the BioBrain Technology or the Content; (iii) reverse engineer or access the Service or BioBrain Technology in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service or BioBrain Technology, or (c) copy any ideas, features, functions or graphics of the Service or BioBrain Technology.

You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates third party rights (including rights of privacy, property or publicity); (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) allow the Service to be used by users that are employed outside the country of the Billing Address.

You may view, download, reference and print any materials generated or posted by or on behalf of BioBrain within the Service provided that you may not, without the prior written consent of BioBrain: (i) modify and/or alter such materials in any way; (ii) distribute such materials to any third party; and (iii) remove any copyright, trademark or other proprietary notices contained in such materials.

The Service is available only to your Users. You may have the maximum number of Users set out in the Order Form. Additional Users will attract additional fees. BioBrain may in its absolute discretion accept or reject applications for User registrations. A User registration cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who no longer study one of the subjects and no longer use the Service.

BioBrain may, in its sole discretion, issue New Releases and New Subjects (for which additional fees may be payable) and may discontinue or suspend the ability to use features or functions of the Service, for the repair, improvement, and/or upgrade of the underlying technology used for the provision of the Service or for any other justifiable reason. BioBrain may, in its sole discretion, update your version of the Service every 6 months. BioBrain shall not be liable for any loss you suffer caused directly or indirectly by such New Releases or the absence of New Releases.

3. Your Responsibilities

You have sole responsibility and liability for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including without limitation those related to data privacy, international communications and the transmission of technical or personal data. You acknowledge and agree that BioBrain is not responsible in any way for your use of the Service or for any activity occurring under your User accounts. You accept full responsibility for the selection of the Service to achieve its intended results. You shall: (i) notify BioBrain immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to BioBrain immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users to be in breach of the terms of this Agreement; (iii) not impersonate another BioBrain user or provide false identity information to gain access to or use the Service; and (iv) notify BioBrain immediately of any breach of this Agreement or infringement of third party rights in connection with this Agreement immediately upon becoming aware of such breach and/or infringement.

You shall permit BioBrain to inspect and have access to (either physically or remotely) any premises, and to the computer equipment located there, at or on which any software forming part of the Service used by you is being kept or used, and any records kept pursuant to this Agreement, for the purposes of ensuring that you are complying with the terms of this Agreement (including allowing only authorised Users access to the Service), provided that BioBrain provides reasonable advance notice to you of such inspections, which shall take place at reasonable times.

4. Your Data Submissions

BioBrain does not own any Submissions that you submit to the Service in the course of using the Service. You, not BioBrain, shall have sole responsibility and liability for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Submissions, and BioBrain shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Submissions. You shall ensure that you have appropriate ownership or licensing rights to Submissions to allow you to distribute such Submissions via the Service before delivery to the Service. You warrant and undertake that Submissions will not contain anything that violates any applicable laws, rules, codes, third party rights or the terms of this Agreement. In the event this Agreement is terminated (other than by reason of your breach), BioBrain will make available to you a file of the Submissions within 30 days of  a request being made, and this request must be made within 90 days of termination. 90 days after termination, BioBrain reserves the right to withhold, remove and/or discard Submissions without notice.

You grant BioBrain a worldwide, non-exclusive, perpetual, royalty free license to reproduce, modify the format of, store and otherwise alter and distribute the Submissions for the purposes of BioBrain complying with the terms of this Agreement including, without limitation, terms relating to any support and error connection services of the BioBrain.

6. Intellectual Property

BioBrain alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the BioBrain Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the BioBrain Technology or the Intellectual Property Rights owned by BioBrain (or its licensors, where applicable). The BioBrain name, logo, and the product names associated with the Service are trademarks of BioBrain, its licensors or third parties, and no right or license is granted to use them.

7. Fees and Payment

You shall pay all fees or charges to your account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. The initial fees and charges will be as set out in your Order Form and may include, without limitation, the following charges: Annual Subscription Fees, Gold Support Fees, training and implementation costs.. Payments must be made within 30 days of the date of the applicable invoice, unless otherwise set out in an Order Form, or in the relevant invoice. All payment obligations are non-cancelable and all amounts paid are non-refundable. You are responsible for paying for the access and use of the Service all Users ordered for the entire Term, and all User licences added by an Administrator from the date they were added, whether or not User actively accesses and uses the Service.  An Administrator may increase the number of Users by executing an additional written Order Form, or by adding Users from the Administration module if they have access to do so, or as otherwise agreed to by BioBrain. Added Users will be subject to the following: (i) added Users will have the right to access and use the Service until the end of the current Term (either Initial Term or renewal term); (ii) the fees for the added Users will be the then current, generally applicable fees; and (iii) Users added during  a calendar month will be charged in full for that calendar month. You shall reimburse BioBrain for material(s) and reasonable travel, administrative, and out-of-pocket expenses incurred in conjunction with the provision of the Service unless noted otherwise as a Special Term of this Agreement. BioBrain reserves the right to modify its fees and charges and to introduce new charges at any time provided written noticed is given, which notice may be provided by e-mail, including by email with the invoice containing the modified fees and charges attached. All pricing terms are confidential, and you agree not to disclose them to any third party.

8. Billing and Annual Subscription Fees

BioBrain charges and collects in advance for use of the Service. BioBrain will issue an invoice to you for the Annual Subscription Fee on the Effective Date and thereafter on each anniversary of the Effective Date or as otherwise mutually agreed upon.   The Annual Subscription Fee invoiced on an anniversary of the Effective Date may include a percentage increase in such fees, and shall be effective immediately and thereafter. Fees for other services (such as, without limitation, training and implementation costs) will be charged on an as-quoted basis (which may or may not be set out in the Order Form). BioBrain’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. You agree to provide BioBrain with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorised billing contact and Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, BioBrain reserves the right to terminate your access to the Service in addition to any other legal remedies. Unless BioBrain in its discretion determines otherwise: (i) entities with headquarters and a majority of Users resident in the United Kingdom will be billed in UK pounds sterling and subject to UK payment terms and pricing schemes (“UK Customers”); (ii) entities with headquarters and a majority of Users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes (“U.S. Customers”); (iii) entities with headquarters and a majority of Users resident in Australia will be billed in Australian dollars and subject to Australian payment terms and pricing schemes (“Australian Customers”); and (iv) all other entities will be billed in UK pound sterling, U.S. dollars, Euros, Australian Dollars or local currency at the discretion of BioBrain (“Non-UK / U.S. / Australian Customers”). If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

9. Non-payment and suspension

In addition to any other rights granted to BioBrain in this Agreement, BioBrain reserves the right to not upgrade, suspend or terminate this Agreement and your access to the Service if your account falls into arrears, including the right to not upgrade the Service. BioBrain may charge interest on overdue amounts, which are payable forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 1% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Such interest shall accrue on a daily basis and be compounded quarterly. If you or BioBrain initiates termination of this Agreement, you will be obliged to pay the balance due on your account and any fees that would have accrued during the remainder of the current Term, but for the termination of this Agreement, computed in accordance with the Fees and Payment section above. You agree that BioBrain may bill you for such fees.

BioBrain reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that BioBrain has no obligation to retain Submissions and that such Submissions may be irretrievably deleted if your account is 90 days or more in arrears or otherwise suspended or inactive.

You shall indemnify and hold Biobrain, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with any breach by you of this clause.

10. Term Expiry and Renewal

This Agreement commences on the Effective Date and continues for the Initial Term. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms of one year (“Renewal Term”) at BioBrain’s then current fees. Either party may terminate this Agreement, effective only upon the expiration of the then current Initial Term or Renewal Term (as applicable), by notifying the other party in writing at least twenty (20) business days prior to the expiry of that term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), BioBrain will make available to you a file of the Submissions within 30 days of a request being made, and this requested must be made within 90 days of termination. 90 days after termination, BioBrain reserves the right to withhold, remove and/or discard Submissions without notice. You agree and acknowledge that BioBrain has no obligation to retain the Submissions, and may delete such Submissions, more than 30 days after termination.

11. Termination for cause

Any breach of your payment obligations or unauthorized use of the Biobrain Technology, Content or Service will be deemed a material breach of this Agreement. BioBrain, in its sole discretion, may terminate your password, account, an individual User account or use of the Service or this Agreement if you breach or otherwise fail to comply with this Agreement. In addition, BioBrain may terminate a free account at any time in its sole discretion. In the event this Agreement is terminated, BioBrain will make available to you a file of the Submissions within 30 days of a request being made, and this request must be made within 90 days of termination. 90 days after termination, Biobrain reserves the right to withhold, remove and/or discard Submissions without notice. You agree and acknowledge that Biobrain has no obligation to retain the Submissions after this date, and may delete such Submissions, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach. Termination by BioBrain in accordance with the rights contained in this Agreement shall be without prejudice to any other rights or remedies of BioBrain accrued prior to termination.

On termination: (a) all rights granted to you under this Agreement shall cease unless specified otherwise; (b) you shall cease all activities authorised by this Agreement unless specified otherwise; (c) you shall immediately pay any sums due to BioBrain and any fees that would have accrued during the remainder of the current Term, but for the termination of this Agreement; and certify to BioBrain that you have complied with these obligations.

You shall indemnify and hold BioBrain, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with any breach by you of this clause.

12. Representations, Warranties and Disclaimers

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. BioBrain represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof in the country in which it is being provided, provided that this warranty will not apply if any issue with the Service results from you or your User(s) having used the Service outside the terms of this Agreement, or for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by BioBrain. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY BIOBRAIN AND ITS LICENSORS.

BIOBRAIN’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BIOBRAIN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

13. Indemnities

You shall indemnify and hold BioBrain, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Submissions infringes the rights of, or has caused harm to, a third party; (ii) a claim alleging that your use of the Service for your business purposes or your User activity infringes the rights of, or has caused harm to, a third party; (iii) a claim alleging that any activity occurring under your User accounts or by you in using the Service infringes any applicable local, state, national and/or foreign laws, treaties and regulations, including without limitation those related to data privacy, international communications and the transmission of technical or personal data; (iv) a claim, which if true, would constitute a violation by you of your representations and warranties; or (v) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that BioBrain (a) gives written notice of the claim promptly to you (on becoming aware of such a claim); (b) at your request, gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release BioBrain of all liability and such settlement does not affect BioBrain’s business or Service); (c) following your request, provides to you all available information and assistance; and (d) has not compromised or settled such claim.

BioBrain shall indemnify and hold you and your officers, directors and employees harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) actually awarded against you, your officers, directors and/or employees arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright or a trademark of a third party in the United Kingdom, Australia or United States of America; or (ii) a claim, which if true, would constitute a violation by BioBrain of its representations or warranties; provided that you (a) promptly give written notice of the claim to BioBrain; (b) give BioBrain sole control of the defense and settlement of the claim (provided that BioBrain may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to BioBrain all available information and assistance; and (d) have not compromised or settled such claim. BioBrain shall have no indemnification obligation, and you shall indemnify BioBrain pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service (or any part of the Service, Technology and/or Content) with any of your or third party products, software, service, hardware or business process(s).

14. Limitation of Liability

SUBJECT TO CLAUSE 11, IN NO EVENT SHALL EITHER PARTY’S (AND/OR, IN THE CASE OF BIOBRAIN, ITS LICENSORS’) AGGREGATE LIABILITY EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT AND/OR SERVICE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF BIOBRAIN TERMINATES THIS AGREEMENT AS A RESULT OF ANY MATERIAL BREACH OF THIS AGREEMENT BY YOU OR IF YOU TERMINATE THIS AGREEMENT WITHOUT CAUSE, YOU MUST PAY TO BIOBRAIN AN AMOUNT EQUAL TO THE TOTAL ANNUAL SUBSCRIPTION FEES PAYABLE BY YOU DURING THE CURRENT TERM (MINUS ANY ANNUAL SUBSCRIPTION FEES ALREADY PAID BY YOU), WITHOUT PREJUDICE TO ALL AND ANY OTHER RIGHTS OF BIOBRAIN UNDER THIS AGREEMENT. YOU ACKNOWLEDGE THAT THE TOTAL ANNUAL SUBSCRIPTION FEES PAYABLE BY YOU DURING THE CURRENT TERM (MINUS ANY ANNUAL SUBSCRIPTION FEES ALREADY PAID BY YOU) REPRESENTS A GENUINE PRE-ESTIMATE OF THE LIQUIDATED DAMAGES LIKELY TO BE SUFFERED BY BIOBRAIN AS A RESULT OF ANY MATERIAL BREACH OF THIS AGREEMENT BY YOU.

THE EXCLUSIONS IN THIS CLAUSE 14 AND CLAUSE 12 SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OR DAMAGES OR FOR PERSONAL INJURY CAUSED BY NEGLIGENCE, FOR FRAUD OR FRAUDULENT MISREPRESENTATION OR FOR CERTAIN OTHER TYPES OF DAMAGES, SO THE EXCLUSIONS IN THIS CLAUSE 14 AND CLAUSE 12 MAY NOT APPLY TO YOU.

IN NO EVENT SHALL EITHER PARTY BRING ANY CLAIM OR CAUSE OF ACTION AGAINST THE OTHER PARTY MORE THAN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.

15. Local Law and Export Control

You are solely responsible for, and accept liability for, ensuring compliance with local laws and local export controls applicable to your business and to your use of the Service in connection with your business. The BioBrain Website and Service provides services and uses software and technology that may be subject to United States export controls and the export control regulations of the European Union, Denmark and Australia. You acknowledge and agree that the BioBrain Website and the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, the European Union, Denmark and/or Australia maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., European Union, Danish and Australian export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

This site may use encryption technology that is subject to licensing requirements under the U.S., European Union, Danish and/or Australian laws and/or regulations.

If you use the Service from outside the United Kingdom, Australia and the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United Kingdom, Australian or United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United Kingdom government, the Australian government and the United States government or appropriate body for such purposes.

16. Support Services and Error Correction

Subject to the remaining provisions of this clause (including the exclusions and limitations at the end of this clause), BioBrain will provide you with the following Support Services in relation to the Service: (a) Silver Support Services as described below, provided that you pay the Annual Subscription Fee; (b) Gold Support Services as described below, provided that you pay the annual Gold Support Fee (as indicated in the Order Form).

Support TypeSilver Support Service¹Gold Support Service²
Email Support for BioBrain issues:AVAILABILITY (hours during which email responses will be sent by BioBrain): Australia: 9am to 5pm (EST & WST) Monday to Friday (excluding public holidays)UK: 9am to 5pm Monday to Friday (excluding public holidays)US: 8am to 5pm (Eastern time) Monday to Friday (excluding public holidays)Middle East: 9am to 5pm (Dubai Time) Sunday to Thursday RESPONSE TIME First email response from BioBrain to the support request will be made based on the Priority Level as specified in the Error Correction section below. CONTACT support at biobrain dot com dot auAVAILABILITY (hours during which email responses will be sent by CMO): 24 hours x 7 days. RESPONSE TIME First email response from BioBrain to email support request will be made based on the Priority Level as specified in the Error Correction section below. CONTACT support at biobrain dot com dot au
Web Support for BioBrain Technology issues:AVAILABILITY (hours during which web responses will be sent by BioBrain): UK: 9am to 5pm Monday to Friday (excluding public holidays)Australia: 9am to 5pm (EST & WST) Monday to Friday (excluding public holidays)US: 8am to 5pm (Eastern time) Monday to Friday (excluding public holidays)Middle East: 9am to 5pm (Dubai Time) Sunday to Thursday RESPONSE TIME First web response from BioBrain to the support request will be made based on the Priority Level as specified in the Error Correction section below. CONTACT https://biobrain.com.au/contact/AVAILABILITY (hours during which web responses will be sent by CMO): 24 hours x 7 days RESPONSE TIME First web response from BioBrain to web support request will be made based on the Priority Level as specified in the Error Correction section below. CONTACT https://biobrain.com.au/contact/
Other Benefits:Additional benefits of the Gold Support Service include: An School Training Sessions for all required staff Annual User Forum for Road Map suggestions & new feature demonstrationsPerformance Reporting

¹Silver Support Maximum Support Issue requests: If you receive Silver Support Services from BioBrain, you are entitled to make a maximum number of email and web support requests per annum (starting from the Effective Date) as follows: 48 Support Issues Additional costs will be charged for additional support requests you make. Silver Support Services will be provided during the hours specified from the BioBrain Support Centre in the country of, or nearest to,  the Billing Address on your Order Form. Note you are entitled to unlimited support requests in the first 3 months from the Effective Date.

²Gold Support Maximum Support Issue requests: If you receive Gold Support Services from BioBrain, you are entitled to make a certain number of email and web support requests per annum (starting from the Effective Date) as follows: 72 Support Issues  Additional costs will be charged for additional support requests you make for Cloud Editions. Note you are entitled to unlimited support requests in the first 5 months from the Effective Date.

Email and Web support requests must be submitted in the format of the Fault Report Form available at https://biobrain.com.au/contact/ . You must clearly identify the exact support issue, so that the CMO support team is able to try to resolve the issue.

Error Correction

Subject to the exclusions and limitations set out below, Support Services shall be defined to be queries you place in relation to any errors or defects found in respect of the Service (‘Error Queries’).

If any part of the Service contained in the latest New Release (the “Current Release”) fails to function as expected, you shall, as soon as reasonably practicable, notify BioBrain of such defect or error. You may place Error Queries over the phone or via email during Available hours (as Available is defined for Silver Support Service in the table above). In addition, you shall complete and submit by email a Fault Report Form available at https://biobrain.com.au/contact/   which shall contain sufficient information describing the nature of the defect or error and its impact on your ability to use the Service to enable BioBrain to classify the defect or error together with a documented example of the defect or error (screenshot).

Following receipt of an Error Query and completed Fault Report Form by BioBrain, BioBrain, in its reasonable opinion, will assign the Error Query a priority level in accordance with the following criteria:

Priority LevelType of Error Query
Level 1The Supported Software or a substantial part of the Supported Software (including by reference to function) is down or is severely affected or at substantial risk of being severely affected; or your business cannot be conducted normally directly as a result of error / defect in Supported Software
Level 2Error or defect in Supported Software is impacting work production; or use of the Supported Software is interrupted perhaps with risk of recurrence; or error or defect in Supported Software results in some performance degradation of the Supported Software, transmission failures/interruptions or other failures of the Supported Software that are not Level 1 or 3
Level 3Error or defect in Supported Software is an inconvenience or is an operational nuisance. Error Query relates to general questions on the use of the Supported Software.

BioBrain shall use its reasonable endeavours to respond and remedy any defects or errors in Supported Software about which you have submitted an Error Query within the response and resolution times set out below:

Priority LevelResponse Time (time for response by BioBrain to your Error Query. Time starts from receipt by BioBrain of completed Fault Report Form relating to Error Query)Resolution Time (time for resolution of error or defect in Supported Software, subject to exclusions listed below. Time starts from time of initial response by Biobrain to your Error Query)
Level 14 Hours24 Hours
Level 26 Hours48 Hours
Level 324 HoursAs soon as is practically possible (no more than 20 business days)

You shall provide BioBrain with all assistance reasonably requested by BioBrain in order to enable BioBrain to remedy any defects or errors in the Service. You agree that it is reasonable for BioBrain to request, amongst other things, access to your premises and/or server(s) (either remotely or physically) in order that it can update your dedicated installation with any corrected version of the Current Release (where relevant), and that the Resolution Time for Dedicated Installations may be greater than specified above for these reasons.

Exclusions from and limitations to Support Services and error correction services:

Maintenance, support or other services in respect of the following are not included in your support allowance and the Support Services and in the error correction services described above: integration with existing systems; beta functionality; solution or configuration consulting; custom report development and other customisation of the Service and/or BioBrain Technology; defects or errors which, in the reasonable opinion of BioBrain, result from any modifications to the Current Release made by any person other than BioBrain; use of any version of the Service other than the Current Release; incorrect use of the Current Release or database or operator error/lack of training; any fault in your equipment or in any programs used in conjunction with the Current Release; any defects or errors caused by use of the Current Release on or with equipment or programs not supplied by or approved in writing by BioBrain provided that for this purpose any programs designated for use with the Current Release shall be deemed to have the written approval of BioBrain; any modification of the Current Release not authorised in writing by BioBrain; operation of the Current Release outside BioBrain’s recommended applicable operating conditions and environmental specifications which may include running the Service on server infrastructure shared with other applications and databases; improper site preparation or maintenance (in the reasonable opinion of BioBrain); accident, neglect, hazard or misuse; natural calamity; failure or fluctuation of electrical power or environmental conditions; and/or any unauthorised maintenance of the Current Release or other failure by you or a User to comply with the terms of this Agreement.

BioBrain may, in its sole and absolute discretion, elect to provide maintenance services or other support services in circumstances covered by the exclusions listed above and/or where it determines that there is not a defect with the Current Release, in which case such services will be provided at BioBrain’s then current rates. You acknowledge and agree that the software contained in the BioBrain Technology used to provide the Service is complex, and that certain errors and defects are incapable of correction or may require an inordinate amount of time and money to correct. If BioBrain, in its reasonable opinion, concludes that a defect or error falls into either of these categories, then BioBrain shall have no obligation to correct such defect or error.

In providing support and error correction services under the terms of this Agreement, BioBrain may in its sole and absolute discretion: (i) provide a local fix or patch of any relevant software; (ii) provide a temporary by pass or work around solution; (iii) schedule the resolution of the defect or error for inclusion in a subsequent New Release; (iv) modify BioBrain documentation to reflect operating limitations and correct operating procedures; and (v) request you to provide such information as may be required to enable it to identify and correct any defect or error in question or to provide support (which information you shall provide within a reasonable time). Time will not be of the essence in undertaking support and error correction services.

Failure to comply with these support and error correction provisions shall not constitute a breach of this Agreement by BioBrain.

17. Notices

BioBrain may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in BioBrain’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in BioBrain’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to BioBrain (such notice shall be deemed given when received by BioBrain) at any time to support@biobrain.com.au

18. Modification to terms

BioBrain reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon publishing modifications to this Agreement, however any changes to the Term or to the amount of Fees payable other than as provided for in clause 8 of this agreement must be agreed to in writing between the parties.

19. Assignment and Change in Control

This Agreement may not be assigned by you without the prior written approval of BioBrain but may be assigned without your consent by BioBrain to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of BioBrain directly or indirectly owning or controlling 50% or more of you shall entitle BioBrain to terminate this Agreement for cause immediately upon written notice.

20. Data Protection

This clause applies where the Customer is using the Service within the European Economic Area. In this clause, the terms “data processor”, “data controller” and “personal data” have the meanings given to them in the Data Protection Act 1998 (the “Act”). A data subject is an individual who is the subject of personal data.  Each party is responsible for complying with its obligations under the Act.  The parties acknowledge that: (a) the provision of the Services will require processing of personal data on behalf of the Customer by BioBrain; and (b) for the purposes of the Act the Customer is a data controller and BioBrain shall be a data processor.  BioBrain undertakes that, in relation to any personal data that it or any of its sub-contractors processes on behalf of the Customer it shall and shall procure that its sub-contractors shall: (a) process such personal data only in accordance with its obligations under this Agreement or otherwise on the instructions of the Customer, provided that BioBrain will not be liable for any loss, costs or damage suffered by the Customer to the extent that such loss, costs, damage or failure arises from its compliance with this clause; (b) implement appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to personal data in compliance with the Act; take appropriate technical and organisational measures against unauthorised or unlawful processing of such personal data and against any accidental loss or destruction of or damage to such personal data; not transfer any personal data outside the European Economic Area, other than to (i) a third party in the United States which at all relevant times adheres to the Safe Harbor Privacy Principles and associated 15 Frequently Asked Questions, approved by the European Commission (Decision of 26th July 2000 (2000/520/EC)) (a Safe Harbor Adherent) or (ii) a country which ensures an adequate level of protection by reason of its domestic law or of the international commitments it has entered into, as determined by the European Commission (Council Directive of 24 October 2005 (95/46/EC)); and (e) promptly notify the Customer of any accidental or unauthorised access to the personal data.  The Customer undertakes that it shall obtain all necessary consents from End Users and provide all information to End Users that is required to be provided under the Act for the processing of data in relation to the Services, including all necessary consents for the transfer of personal data to a Safe Harbor Adherent in the United States.  Each party shall provide all such co-operation and information as the other party may reasonably require to enable such other party to comply with their obligations under the Act including in relation to any subject access request made under the Act and/or responding to any enquiry made, or investigation or assessment of any processing initiated by the Office of the Information Commissioner.  Each party (“indemnifying party”) shall indemnify and keep indemnified the other party (“indemnified party”) against all losses, damages, costs, expenses (including reasonable legal fees and expenses) and liabilities arising as a result of a breach by the indemnifying party of its obligations under this clause and including without limitation, as a result of any claim by a data subject in respect of the processing of his or her personal data by the indemnifying party.

21. Governing Law

With respect to customers located in North, Central or South America (including the Caribbean), this Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. With respect to customers located in Asia, Australia, New Zealand and the Pacific islands, this Agreement shall be governed by the laws of the state of Victoria, Australia without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of Victoria, Australia. With respect to customers located in Europe or anywhere else in the world, other than those territories listed above, this Agreement shall be governed by the laws of England and Wales without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the courts of England and Wales.

22. General

No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement shall prevail. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and BioBrain as a result of this agreement or use of the Service. The failure of BioBrain to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BioBrain in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and BioBrain and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, act of terrorism, fire, flood, explosion or civil commotion (although nothing shall excuse you from any payment obligations under this Agreement). Except for affiliates of BioBrain (who may enforce and who benefit from this Agreement as if they were a party to it), no term of this Agreement is intended to confer a benefit on, or to be enforceable by any person who is not a party to this Agreement.

Each party shall, during the term of this agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its affiliates, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this agreement, or subsequently comes lawfully into the possession of such party from a third party.

Neither party will disclose to the media any information regarding this Agreement or work performed under this Agreement without the written consent of the other party however BioBrain may use your name, logo and a factual description of the service provided under this Agreement and issue a press release without your written consent.

23. Counterparts and Electronic Documents.

This Agreement may be executed and delivered in counterparts, including by a facsimile or an electronic transmission thereof, each of which shall be deemed an original. Any document generated by the parties with respect to this Agreement, including this Agreement, may be imaged and stored electronically and introduced as evidence in any proceeding as if original business records. Neither party will object to the admissibility of such images as evidence in any proceeding on account of having been stored electronically.

24. Questions and Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to support at biobrain.com.au.

Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith:

“Activation” means the provision of either the BioBrain Technology, Content or Service so that you can use it within your organization. This may involve BioBrain importing spreadsheets or files containing activation data if required, or alternatively it may be fulfilled by BioBrain providing access to a server running the BioBrain Technology, Content or Service enabling you to finalize the configuration. If delays are caused by your organization that result in it not being possible for BioBrain to achieve Activation on the timeframes initially envisaged, then Activation will be deemed to have occurred 6 months from the Effective Date; “Additional Subject” means any subject of the BioBrain software which you add to your Service after the Effective Date, which may be a New subject, or a subject which already existed as at the Effective Date, but which did not form part of the Service you ordered on your Order Form, for which an additional fee is payable, as set out in the Order Form. A description of current Subjects from time to time can be found at www.biobrain.com.au, as this description may be updated or changed by CMO from time to time; “Administrator(s)” means a license required to access the Submissions made by Students. System Admins are the only users allowed to submit Support Requests, however a System Admin may permanently delegate their right to another named user; “Agreement” means these terms of use (whether referred to as a Master Services Agreement or a Master Subscription Agreement on the date that you first entered into an Order Form), any Order Forms, and any materials available on the BioBrain Website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by BioBrain from time to time in its sole discretion; “Annual Subscription Fee” means the fees due and payable annually in advance from the Effective Date to cover the provision of New Releases, license fees and Silver Support Services as set out in the Order Form. “BioBrain Website” means the web site found at www.biobrain.com.au, or such replacement URL as may be used from time to time; “BioBrain Technology” means all of BioBrain’s and its licensors proprietary technology (including Software, hardware, products,  algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information and New Releases and New Subjects) made available to you by BioBrain in providing the Service; “BioBrain” means with respect to services and licences, BioBrain Learning Pty Ltd, a business name for a company incorporated and registered in Victoria, Australia with ABN 78 644 545 040

and company number ACN 644 545 040 “Content” means the audio and visual information, documents, images, software, products, templates and other materials and services contained or made available to you in the course of using the Service; “Effective Date” means the earlier of either the date set out in the Order Form or the date you begin using the Service;  “Gold Support Fee” means the fee payable for the Gold Support Services, if applicable, as set out in the Order Form; “Gold Support Service” means those support services described in clause 16 of this Agreement which you will receive if selected in the Order Form and for which the Gold Support Fee is due and payable annually in advance from the Effective Date, at the level set out in the Order Form;  “Initial Term” means the contract term, beginning on the Effective Date and ending four years from the Effective Date or as otherwise agreed on the applicable Order Form; “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how, database rights and other trade secret rights, and all other intellectual property rights (whether registered or unregistered), derivatives thereof, and forms of protection of a similar nature anywhere in the world; “Mobile App” means a software application that is installed on a single mobile Operating System; “Multi Lingual Version” means an edition of the Service with the interface available in multiple languages; “New Subject” means any new Subject added to the BioBrain software after the Effective Date forming part of the BioBrain Technology and Service which from time to time is publicly marketed and offered for purchase by BioBrain in the course of its normal business, being a Subject which adds significant new functionality to such software. A description of current subjects from time to time can be found at www.biobrain.com.au, as this description may be updated or changed by BioBrain from time to time; “New Release” means any new release of the Biobrain software forming part of the BioBrain Technology and Service which corrects faults, adds functionality or otherwise amends or upgrades such software, and which may include New Subjects (which may attract additional fees if they are added to the service as an Additional Subject);  “Order Form(s)” means the form evidencing the Initial Term for the Service and any subsequent order forms, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail). This could also be a book list provided by a BioBrain partner;  “Service(s)” means the specific edition of BioBrain’s software,  developed and operated, by or on behalf of BioBrain, or ancillary online or offline software products provided to you by BioBrain, to which you are being granted access under this Agreement, including the BioBrain Technology and the Content; “Silver Support Service” means those support services offered by BioBrain and described in clause 16 of this Agreement, for which the Support and License Package is payable, as set out in the Order Form; “Software” means the specific edition of BioBrain’s Learning management software, or other software and/or services identified in the Order Form, developed and maintained by or on behalf of BioBrain, including the BioBrain Technology and the Content; ; “System Admin license” means a license required for a user with the ability to add, edit, delete users. System Admins are the only users allowed to submit Support Requests, however a System Admin may permanently delegate their right to another named user; “Submissions” means any data, information, documents or material provided or submitted by you to the Service in the course of using the Service; “Support Services” means the support services described in clause 16 of this Agreement, including the Gold Support Services and the Silver Support Services; “Support and License Package” means the fees due and payable annually in advance from the Effective Date to cover the provision of New Releases, license fees and Silver Support Services, and which is equal to a percentage, as set out in the Order Form, of the total upfront license fees paid at the start of the Initial Term and any annual or additional module license fees and any development, customization or integration fees subsequently paid. Note the breakdown of the Support and License Package fees are as follows: 25% of the fees are attributed to support and 75% of the fees are attributed to licensing; “Term” means the Initial Term and any renewal term; and “User(s)” means teachers or students who are authorized to use the Service in accordance with the terms of this Agreement and have been supplied user identifications and passwords by you (or by BioBrain at your request), subject to the maximum number of Users set out in the Order Form;