End User License Agreement

CLAUSE 2 SERVICE

2.1 General: Brainnwave will provide the Service:

• (a) in accordance with the Agreement;
• (b) exercising reasonable care, skill and diligence; and
• (c) using suitably skilled, experienced and qualified personnel.

2.2 Non-exclusive: Brainnwave’s provision of the Service to the Client is non- exclusive. Nothing in this Agreement prevents Brainnwave from providing the Service to any other person.

2.3 Availability:

• (a) Subject to clause 2.3(b), Brainnwave will use reasonable efforts to maintain the availability of the Service to the Client. However, it is possible that on occasion the Service may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure.
• (b) Through the use of web Service and application programming interfaces, the Service interoperates with a range of third-party service features. Brainnwave does not make any warranty or representation on the availability of those features. If a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Brainnwave may cease to make available that feature to the Client. If Brainnwave exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation.

2.4 Underlying Systems: Brainnwave is responsible for procuring all Underlying Systems reasonably required for it to provide the Service in accordance with the Agreement.

2.5 Additional Service:

At the request of the Client and subject to the Client paying the applicable Fees, Brainnwave may, from time to time, make available additional services to supplement the Service on the terms of the Agreement.

CLAUSE 3 CLIENT OBLIGATIONS

3.1 General Use: The client and its personnel must:

• (a) Use the Service in accordance with this Agreement solely for:
  • (i) the Client’s own internal business purposes; and
  • (ii) lawful purposes.
• (b) Not resell or make available the Service to any third party, or otherwise commercially exploit the Service.
• (c) The Client shall not request or make available Information for the use of others, including for any parent, subsidiary, affiliated entity, franchisee or dealer of the Client.
• (d) The Client shall not make Information available to others in any form, unless required by law.
• (e) The Client shall not copy, download, batch harvest, upload or in any other way reproduce any information generated through use of the Service (“Information”) for the purpose of aggregating the Information, save that the Client may create a copy or backup of the Information for the purpose of maintaining an internal archive or for regulatory compliance. Such backup or archive shall not be used for any commercial purpose.

3.2 Access Conditions: When accessing the Service, the Client and its personnel must:

• (a) not impersonate another person or misrepresent authorization to act on behalf of others or Brainnwave;
• (b) correctly identify the sender of all electronic transmissions;
• (c) not attempt to undermine the security or integrity of the Underlying Systems;
• (d) not use, or misuse, the Service in any way which may impair the functionality of the Underlying Systems or impair the ability of any other user to use the Service ;
• (e) not use the Service to transmit Malicious Code;
• (f) not attempt to view, access or copy any material or data other than material or date the Client is authorized to access;
• (g) neither use the Service in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, misleading, illegal or fraudulent; and
• (h) comply with any terms of use on the Website, as updated from time to time by Brainnwave.

The Client has no right to access the software code (including object code, intermediate code and source code) of the Service, either during or after the term of the Agreement.
3.3 Personnel:

• (a) Without limiting clause 3.2, no individual other than a Permitted User may access or use the Service.
• (b) Up to the maximum number of Permitted Users stated [on the Order Form], the Client may authorize any member of its personnel to be a Permitted User, in which case the Client will provide Brainnwave with the Permitted User’s name and other information that Brainnwave reasonably requires in relation to the Permitted User.
• (c) The Client must procure each Permitted User’s compliance with clauses 3.1 and 3.2 and any other reasonable condition notified by Brainnwave to the Client.
• (d) A breach of any term of the Agreement by the Client’s personnel including, to avoid doubt, a Permitted User is deemed to be a breach of the Agreement by the Client.

3.4 Authorizations: The Client is responsible for procuring all licenses, authorizations and consents required for it and its personnel to use the Service, including to use, store and input Data into, and process and distribute Data through, the Service.

CLAUSE 4 DATA

4.1 In this clause 4.1 the terms “personal data”, “data subject” and “data controller” shall have the meaning given to those terms in Article 4 of Regulation (EU) 2016/679 of the European Parliament and of the Council (“GDPR”) as transposed into English law as a consequence of UK GDPR If Brainnwave processes any personal data as a data processor of the Client when performing its obligations under this agreement, Brainnwave shall:

• (i) process the personal data only as strictly necessary to provide the Service and in accordance with the Client’s instructions from time to time;
• (ii) only engage a sub-processor with the prior consent of the Client and a written contract;
• (iii) only act on the written instructions of the Client (unless required by law to act without such instructions);
• (iv) ensure that any of its employees or agents processing data are subject to a duty of confidentiality;
• (v) take appropriate measures to ensure the security of processing and take appropriate technical and organisational measures against unauthorised or unlawful processing of Client Data or its accidental loss, destruction or damage;
• (vi) take reasonable steps to ensure the employees used by Brainnwave to provide the Service are aware of and are suitably trained in such technical organizational and security measures;
• (vii) use all reasonable endeavours to assist the Client in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments
• (viii) delete or return all personal data to the Client as requested at any time or at the end of the contract;
• (ix) submit to audits and inspections of data processing records and systems as required by the Client and necessary to ensure GDPR compliance,
• (x) provide the Client with whatever information it needs to ensure that the Client and Brainnwave are meeting their respective GDPR obligations;
• (xi) notify the Client immediately if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state;
• (xii) keep proper and compliance records of its processing activities;
• (xiii) notify any personal data breaches to the Client;
• (xiv) provide the Client with co-operation and assistance in relation to any request made by a User to have access to his or her personal data (including by notifying the Client promptly of any data subject access requests it receives) and assist the Client in providing subject access and allowing Users to exercise their rights under the GDPR; and

4.2 California Consumer Privacy Act (CCPA). Brainnwave warrants that:

• (i) its privacy notice is up-to-date and accessible;
• (ii) it shall provide California consumers (as defined under the CCPA) with the option to “Opt Out” of the sale of their Personal Data; and
• (iii) Brainnwave will honor any CCPA Opt-out requests passed on by Client. To receive or pass on CCPA requests, Brainnwave will register as directed by Client.

4.3 International storage of Data: The Client agrees that Brainnwave may store Data (including any Personal Information) in secure servers in any jurisdiction that Brainnwave has an office or where its servers are located from time to time and may access that Data (including any Personal Information).

4.4 Indemnity: The Client indemnifies Brainnwave against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by Brainnwave’s lawyers) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights and privacy rights) or that the Data is objectionable, incorrect or misleading.

CLAUSE 5 FEES

5.1 Fees: The Client must pay to Brainnwave the Fees.

5.2 Invoicing and payment:

• (a) Brainnwave will provide the Client with valid invoices on the dates set out in the Payment Terms, or if there are none, monthly in arrears for the Fees due in the previous month.
• (b) The Client must pay the Fees:
  • (i) on the dates set out in the Payment Terms, or if there are none, by the 20th of the month following the date of invoice; and
  • (ii) electronically in cleared funds without any set off or deduction.
• (c) Brainnwave’s Fees are exclusive of all taxes, duties, royalties, levies and other governmental or regulatory charges. If any such taxes, duties, royalties, levies or charges are levied on or applicable to amounts payable to Brainnwave, they will be borne by Client and (a) if Brainnwave is required to pay any such taxes, duties, royalties, levies or charges, the amount of such payments will be reimbursed to Brainnwave by Client, and (b) if they are required to be withheld or deducted from amounts payable to Brainnwave, the amounts payable will be grossed up so that Brainnwave receives the entire amount that is due pursuant to the terms of the Agreement.

5.3 Increases: By giving at least 30 days’ notice, Brainnwave may increase the Fees once each year (but not in the first Year).

CLAUSE 6 INTELLECTUAL PROPERTY

6.1 Ownership:

• (a) Subject to clause 6.1 (b), title to, and all Intellectual Property Rights in, the Service, the Website, and all Underlying Systems is and remains the property of Brainnwave (and its licensors). The Client must not dispute that ownership.
• (b) Title to, and all Intellectual Property Rights in, Data inputted or supplied by the Client (not being Data inputted or supplied by Brainnwave or supplied by a third party or extracted from a Third-Party Database) remains the property of the Client. The Client grants Brainnwave a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Agreement.

6.2 Know how: To the extent not owned by Brainnwave, the Client grants Brainnwave a royalty-free, transferable, irrevocable and perpetual license to use any know how, techniques, ideas, methodologies, and similar Intellectual Property used by Brainnwave in the provision of the Service.

6.3 Feedback: If the Client provides Brainnwave with ideas, comments or suggestions relating to the Service or Underlying Systems (together feedback):

• (a) all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by Brainnwave; and
• (b) Brainnwave may use or disclose the feedback for any purpose.

6.4 Third party sites and material: The Client acknowledges that the Service may link to third party websites or feeds that are connected or relevant to the Service Any link from the Service does not imply any Brainnwave endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, Brainnwave excludes all responsibility or liability for those websites or feeds.

CLAUSE 7 CONFIDENTIALITY

7.1 Security: Each party:

• (a) must use all reasonable and prudent efforts to keep the Confidential Information confidential and to protect and safeguard the Confidential Information from misuse, loss, theft, publication, destruction or the like and to ensure that its Permitted Recipients do likewise; and
• (b) has the right to communicate Confidential Information to its Permitted Recipients provided that all such Permitted Recipients must be informed of their obligations with respect to confidentiality requirements imposed by this Agreement and the restrictions on use of the Confidential Information.

7.2 Permitted disclosure: Confidential Information does not include any information to the extent such information:

• (a) Was, at the time of disclosure, in, or thereafter became part of, the public domain through no act or omission of the Recipient;
• (b) became available to the Recipient from a third party who did not acquire such confidential information under an obligation of confidentiality either directly or indirectly from the Disclosing Party;
• (c) was known to the Recipient at the time of disclosure by the Disclosing Party to the Recipient, as evidenced by written records;
• (d) was independently developed by the Recipient without the Confidential Information disclosed by the Disclosing Party, as evidenced by written records; or
• (e) was required to be disclosed by law, provided that the Recipient
  • (i) has notified the Disclosing Party of any such obligation promptly on becoming aware of the obligation;
  • (ii) only disclosed that part of the Confidential Information that is legally required to be disclosed; and
  • (iii) uses its best endeavours to assist the Disclosing Party to obtain such protective orders as may be available.

CLAUSE 8 WARRANTIES

8.1 Mutual warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when signed, will constitute binding obligations on the warranting party.

8.2 No implied warranties: To the maximum extent permitted by law:

• (a) Brainnwave’s sole warranty with respect to the Service is set out in clause 2.1 and any claim, action or proceedings against Brainnwave in connection with this Agreement, including any warranty claims under clause 2.1 must be made within 3 months of the earlier of completion of the Service and termination of the Agreement.
• (b) Without limiting the generality of clause 8.2(a):
  • (i) Brainnwave does not warrant or provide any guarantee as to achievement of any specific process performance outcomes or results, including the ability of the Service to meet the Client’s requirements (including any specific performance criteria) or be suitable for a particular purpose; and
  • (ii) all other terms or conditions not stated in the Agreement, whether express, implied, statutory or otherwise, howsoever relating to the Service (including all statutory warranties that may be set out in relevant trade practices, consumer protection or sale of goods laws relating to the quality or fitness for purpose of the Service) are excluded and, to the extent that such terms or conditions cannot be excluded, they are limited to the maximum extent permitted by law.
• (c) Brainnwave does not warrant that the Service will be secure, free of viruses or other harmful code, uninterrupted or error free.

Third Party Database Warranties & indemnity

8.3 Database Extracts are provided on an as-is, as-available basis. Brainnwave does not make, and hereby disclaims, any warranty, express or implied with respect to any Database Extract including, but not limited to, the correctness, completeness, currentness, or satisfactory quality, merchantability, or fitness for a particular purpose of any such Database Extract and/or any records contained therein or of the media on which the Database Extract and/or any such records are delivered.

8.4 Brainnwave represents and warrants that:

• (a) Database Extracts (as provided to the Client) and their use by the Client in accordance with this Agreement will not infringe the Intellectual Property Rights of any third party in the Territory;
• (b) Database Extracts have been obtained and compiled and their use by the Client as contemplated under this Agreement shall not violate any applicable Privacy Laws or Anti-Corruption Laws, or legislation and regulations regarding export control, marketing by means of electronic communications services, customer solicitation, consumer protection and consumer credit.

8.5 Brainnwave shall indemnify and hold harmless the Client against all claims, actions, losses and damages (whether direct, indirect, incidental, or consequential) howsoever arising from any breach by Brainnwave of the warranties in Clause 8.4, save that this indemnity shall not apply to the extent that a breach or claim arises under this Clause 8.5 by virtue of

• (i) the Client combining or merging records in the Database Extract with any data not supplied by Brainnwave or
• (ii) any use of the Database Extract by the Client not in accordance with this Agreement.

8.6 Though Brainnwave uses extensive procedures to maintain or procure accurate data, the Client acknowledges that the Information will contain a degree of error. The Client accepts that it

• (i) is responsible for determining whether the Information is sufficient for the Client’s use and
• (ii) must rely entirely upon its own skill and judgment when using the Information.

ALL INFORMATION IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS. SAVE AS OTHERWISE STATED IN THESE TERMS, WE AND OUR THIRD PARTY CONTENT PROVIDERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WE AND OUR THIRD PARTY CONTENT PROVIDERS WILL NOT BE LIABLE FOR ANY LOSS OR INJURY ARISING OUT OF, IN WHOLE OR IN PART, OUR CONDUCT IN PROCURING, COMPILING, COLLECTING, INTERPRETING OR REPORTING INFORMATION.

CLAUSE 9 LIABILITY

9.1 Maximum liability: The maximum aggregate liability of Brainnwave under or in connection with the Agreement or relating to the Service, whether in contract (including under an indemnity), tort (including negligence), breach of statutory duty or otherwise, must not in any Year exceed the Fees paid by the Client under the Agreement in the previous Year (which in the first Year is deemed to be the total Fees paid by the Client from the Start Date to the date of the first event giving rise to liability).

9.2 Exclusion of consequential losses: Brainnwave has no liability to the Client under or in connection with the Agreement or Service for any claim, action, proceeding, loss, damage or cost that (i) in any manner relates to a loss of revenue, profits, opportunity or production, loss or denial of use of any equipment or facility, increased expense of construction, operation or maintenance, economic loss, loss of goodwill or reputation, delay, business interruption or the cost of repair to or replacement of equipment, facilities or goods and related third party Service, or (ii) in any manner can be construed as indirect, incidental, special, punitive or consequential losses or damages.

9.3 No liability for other’s failure: Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.

9.4 Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.

9.5 Limitation of Liability for AI-Derived Results: The Client acknowledges that the Mosaic Platform utilizes artificial intelligence (‘AI’) models to generate results and predictions. While significant human effort is employed to enhance the accuracy and reliability of these results, the Client recognizes that AI models are inherently predictive and may not always achieve the intended outcomes or desired accuracy. Brainnwave does not guarantee the accuracy, completeness, or reliability of any results derived from such AI models and shall not be liable for any errors, omissions, or inaccuracies in the results or for any decisions or actions taken by the Client in reliance on such results. The Client agrees to hold Brainnwave harmless for any direct, indirect, incidental, or consequential damages arising from the use of AI-derived results provided by the Mosaic Platform.

CLAUSE 10 TERM, TERMINATION AND SUSPENSION

10.1 Duration: Unless terminated under this clause 10, the Agreement:

• (a) starts on the Start Date and ends on the End Date; but
• (b) where no End Date is set out in the Key Details, continues for successive terms of 12 months from the Start Date unless a party gives 60 days’ notice that the Agreement will terminate on the expiry of the then current term.

10.2 No fault termination: Either party may terminate the Agreement on not less than 6 months prior notice to the other party.

10.3 Other termination rights:

• (a) Either party may, by notice to the other party, immediately terminate the Agreement if the other party:
  • (i) breaches any material provision of the Agreement and the breach is not:
    • A. remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or
    • B. capable of being remedied;
  • (ii) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or
  • (iii) is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.

10.4 Consequences of termination or expiry:

• (a) Termination or expiry of the Agreement does not affect either party’s rights and obligations that accrued before that termination or expiry.
• (b) On termination or expiry of the Agreement, the Client must pay all Fees for Service payable in respect of the agreed minimum term of the agreement.
• (c) Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or expiry of the Agreement, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control.

10.5 Obligations continuing: The provisions of clauses 4.5, 6, 7, 9, 10.4, 10.5 and 11, survive termination of the Agreement.

10.6 Suspending access: Without limiting any other right or remedy available to Brainnwave, Brainnwave may restrict or suspend the Client’s access to the Service where the Client (including any of its personnel):

• (a) undermines, or attempts to undermine, the security or integrity of the Service or any Underlying Systems;
• (b) uses, or attempts to use, the Service:
  • (i) for improper purposes; or
  • (ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Service;
• (c) has otherwise materially breached the Agreement (in Brainnwave’s reasonable opinion); or
• (d) Brainnwave may suspend provision of the Service if any amount due to be paid by the Client to Brainnwave under this Agreement is overdue, and Brainnwave has given the Client at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Service until the outstanding amounts are paid.

10.7 Notice: Brainnwave must notify the Client where it restricts or suspends the Client’s access under clause 10.6.

CLAUSE 11 DISPUTES

The Agreement will be governed by and construed in accordance with the laws of the Jurisdiction, without giving effect to conflict of law considerations. All disputes will be submitted to senior management for discussion. If the parties are unable to resolve a dispute through such discussions, either party may submit the dispute to the International Chamber of Commerce (“ICC”) for resolution in accordance with its rules then in force. The arbitration will be held in English and at the location of Brainnwave’s contracting office. The arbitration panel will consist of one arbitrator selected by the ICC in accordance with its rules. Any arbitration award will be final and binding on the parties without any right of appeal. The unsuccessful party will bear the costs of arbitration. No legal proceedings may be commenced by either party in connection with the Agreement or the Service other than in accordance with this Clause; provided that either party may apply to a court of competent jurisdiction for interlocutory relief during the course of such proceedings or to enforce any order or award obtained in accordance with this Clause.

CLAUSE 12 DEFINITIONS AND INTERPRETATION

In this agreement the following terms have the stated meaning:

Agreement means these terms and conditions the govern the Service Agreement between the Brainnwave entity identified in the Order Form and the Client identified in item 1 of the schedule in relation to the Service.

• (a) Availability of Service Brainnwave will use reasonable efforts to ensure the Hosted Service is available on a 24/7 basis but does not guarantee 100% availability.
• (b) Confidential Information means any information in any form disclosed by or on behalf of one party to the other party at any time before or after the execution of this Agreement in connection with the Project and the Service. Intellectual Property owned by Brainnwave (or its licensors), including the Software, is Brainnwave’s Confidential Information. The Data is the Client’s Confidential Information.
• (c) Data means all data, content, and information (including Personal Information) owned, held, used or created by or on behalf of the Client that is stored using, or inputted into, the Service. Database Extract means an extract from a Third Party Database made available and duly licensed to Brainnwave by a third party licensor comprising the records and data elements set out in Schedule 1, and any updates thereto.
• (d) Disclosing Party means either Brainnwave or the Client when acting as the discloser of Confidential Information.
• (e) End Date has the meaning set out on the Order Form.
• (f) Fees has the meaning set out on the Order Form.
• (g) Force majeure means acts of God, strikes, lockout, other industrial action, war or civil disturbance, terrorism, unusually inclement weather, storm, flood, earthquake, lightning, fire, explosion, nuclear or radioactive contamination, epidemics or pandemics, governmental action or inaction, extraordinary market conditions affecting the availability of labour, late or inadequate execution of work or supply of goods by third persons, acts or omissions of internet traffic carriers, electrical, internet or telecommunications outage, and any other event beyond the reasonable control of the affected party.
• (h) Intellectual Property Rights includes copyright and all worldwide rights conferred under statute, common law or equity relating to inventions (including patents), registered and unregistered trademarks and designs, circuit layouts, data and databases, confidential information, know how, trade secrets and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning, and includes any enhancement, modification or derivatives work of the Intellectual Property.
• (i) Jurisdiction means England.
• (j) Malicious Code means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
• (k) Objectionable includes being objectionable, defamatory, obscene, harassing, threatening, or unlawful in any way.
• (l) Payment Terms means the payment terms set out on the Order Form.
• (m) Permitted Recipient means the directors, officers, employees of either Brainnwave or the Client whose duties justify the need to know the Confidential Information.
• (n) Personal Information means information relating to identifiable individuals.
• (o) Recipient means either Brainnwave or the Client when acting as the recipient of Confidential Information.
• (p) Service means the software as a service having the core functionality set out on the Order Form. The Service is described in more detail on the Website, as the Website is updated from time to time and any Additional Service.
• (q) Software: For the purposes of this Agreement, “Software” shall refer to the online, web-based applications and platforms provided by Brainnwave under this Agreement, including any related documentation, updates, modifications, enhancements, and any other materials or Service provided as part of the subscription service. The Software is hosted and maintained by Brainnwave and is accessed by Users remotely over the Internet. The Software is provided as a service, and no ownership rights are transferred to the User. The use of the Software is subject to the terms and conditions of this Agreement, including any usage limits or restrictions as may be specified.
• (r) Start Date means the state date of the Agreement as set out on the Order Form.
• (s) Third Party Database means a master database generated and maintained by a third party from which a Database Extract is taken.
• (t) Underlying Systems For the purposes of this Agreement, “Underlying Systems” shall refer to all hardware, software, networks, computing platforms, and other technologies, including third-party Service and systems, that are essential for hosting, supporting, and operating the Software provided under this Agreement. This includes but is not limited to servers, storage systems, databases, operating systems, virtualization technologies, networking infrastructure, and any other components that are integral to the availability, performance, security, and scalability of the Software. The management, maintenance, and security of the Underlying Systems are the responsibility of [Your Company Name], unless otherwise specified in this Agreement.
• (u) Website the Internet site at the domain provided to the client to access the software, or such other site notified to the Client by Brainnwave.
• (v) Year means a 12 month period starting either on the Start Date or thereafter on the anniversary of the Start Date.

CLAUSE 13 INTERPRETATION

In this Agreement:

• (a) clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
• (b) words in the singular include the plural and vice versa;
• (c) a reference to:
  • (i) party to the Agreement includes that party’s permitted assigns;
  • (ii) personnel includes officers, employees, and contractors, but a reference to the Client’s personnel does not include Brainnwave;
  • (iii) a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;
  • (iv) including and similar words do not imply any limit; and
  • (v) a statute includes references to regulations, orders or notices made under or in connection with the statute or regulations and all amendments, replacements or other changes to any of them;
• (d) no term of the Agreement is to be construed against a party because the term was first proposed or drafted by that party; and
• (e) if there is any conflict between these terms and conditions and the Order Form, these terms and conditions prevail unless expressly stated otherwise in the Order Form.

CLAUSE 14 GENERAL

14.1 Entire Agreement: The Agreement represents the entire agreement between the parties regarding the subject matter hereof and supersedes all prior representations, understandings or agreements. The parties have not relied on any representation, warranty or agreement relating to the subject matter of the agreement that is not expressly set out in the Agreement. Amendments to the Agreement are effective only if executed in writing by authorized representatives of both parties.

14.2 Assignment: Neither party may assign (other than to its affiliate) the Agreement or any interest therein, in whole or part, without the prior consent

14.3 of the other party. The Agreement will enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

14.4 Force Majeure: Neither party will be considered to be in breach of its obligations under the Agreement, except obligations to make payment, to the extent that performance is prevented or delayed by Force Majeure. Each party will use best efforts to overcome any Force Majeure as soon as possible.

14.5 Application of limitations and exclusions on liability: The limitations and exclusions on liability expressed in the Agreement will apply even in the case of the fault, negligence or strict liability of the party who is the beneficiary of the clause, and will extend to the officers, directors, employees, agents, representatives, subconsultants and affiliates of such parties.

14.6 Notices: Any notice, consent or other communication given hereunder will only be deemed to have been given if it is in English, in writing and is sent to the recipient’s authorized representative at the usual business address of the recipient by (a) registered mail, (b) fax, (c) e-mail (but only when receipt is confirmed in writing by reply e-mail or otherwise) or (d) personal delivery for which a receipt is obtained. Notice given by fax, personal delivery or e-mail will be deemed to have been given on the business day following delivery. Notice given by mail will be deemed to have been given on the fifth business day after mailing.

14.7 Waivers: No waiver by either party of any breach of the Agreement will be binding unless made in writing and any such waiver will extend only to the specific breach waived and not to any future breach.

14.8 Independent Contractor: Brainnwave is an independent contractor in performing the Service. Nothing in the Agreement will create or will be construed so as to create the relationship of principal and agent between Client and Brainnwave.

14.9 Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

14.10 Rights of third parties: No person other than Brainnwave and the Client has any right to a benefit under, or to enforce, the Agreement.

14.11 Non-solicitation: Neither party will, during the term of the Agreement or for 12 months thereafter, either directly or indirectly on its own behalf of jointly with or on behalf of any other person, solicit, engage or employ any employee or independent contractor of the other party (or any of its affiliates) that has been involved in the provision of Service or with whom the party has otherwise had contact in connection with the Agreement.

14.12 Ethical Business Practices: Each of the parties is committed to ethical business practices and agrees that it will ensure that neither it nor any of its Representatives does anything in connection with the Project that would be in breach of applicable anti-corruption or anti-bribery laws.. Without limiting the generality of the foregoing, each of the parties:

• (a) represents that neither it nor any of its Representatives has offered, promised, authorized or made any payment or gift of money or any other thing of material value, directly or indirectly, to any individual for the purpose of either:
  • (i) influencing the acts or decisions of such individual in connection with the Project; or
  • (ii) otherwise obtaining any illegal advantage or benefit; and
• (b) agrees that neither it nor any its Representatives will hereafter offer, promise, authorize or make any such payment or gift.

For the purposes of this clause, “Representatives” means, with respect to each of the parties, all employees, contractors, representatives and agents employed or engaged by the party and any other persons that are acting under the direction, authority or control of the party.

14.13 Counterparts: The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and emailing a counterpart copy to the other party.