Master License &
Service Terms

Master License & Service Terms
WHEREAS Neurotracker has developed various proprietary, commercial-grade systems and applications using neurological technologies to enhance human cognitive capabilities and performance;

WHEREAS Neurotracker and Client have agreed to terms whereby Client will make use of various proprietary products and technologies developed by Neurotracker, and whereby Neurotracker may render services to the Client, the whole pursuant to a Purchase Order (“the P.O.”) agreed upon by the Parties;

NOW, THEREFORE, in consideration of the P.O., the parties agree as follows, these terms being referred to as the “Agreement”, or the “MLST”:

1. Definitions.
General. As used in this Agreement, the following terms shall have the following meanings, unless the context otherwise requires and specifies.  Certain other terms may be defined elsewhere in this Agreement.

Confidential Information
means all data and information, whether accessed electronically or otherwise, of a confidential or proprietary nature of the parties hereto, including the Deliverables provided to Client pursuant to this Agreement, trade secrets, functional and technical specifications, designs, drawings, translations, analysis, research, processes, computer programs, beta versions, algorithms, methods, ideas, “know how,” and other technical information, sales and marketing research, materials, plans, projects, and other business information, accounting and financial information, personnel records, other information concerning the products, services and business of the parties, and information concerning third-party suppliers or customers of the parties. In particular, the following information shall be considered to be Confidential Information: (a) if marked as such; (b) if the disclosing party orally or in writing has advised the receiving party of the confidential nature of the information; or (c) if, due to its character or nature, reasonable people in a like position and under like circumstances would treat it as confidential.  The following information shall be considered Confidential Information whether or not so marked or identified: any Personal Information, information collected about Discloser’s computing environment, Discloser’s business operations, pricing, discounts, source code, product roadmaps or strategic marketing plans.

“Data Protection and Privacy Policy”, or “D.P.P.P.” means the official Neurotracker Data Protection and Privacy Policy, available , and subject to change or revision, at any time, at Neurotracker’ sole discretion.

Documentation means that documentation generally provided by Neurotracker to Client, as may be revised by Neurotracker from time to time, and which may include user guides, manuals, release notes and on-line help files supplied by Neurotracker concerning installation, operation, and use of the System and Additional Software. Unless otherwise agreed by the parties, all Documentation will be provided in the English language.

Intellectual Property (Rights)” means all the intellectual property, industrial and other proprietary rights, protected or protectable, under the laws of any country, or any political subdivision thereof, including, without limitation, (a) all trade names, trade dress, trademarks, service marks, logos, brand names and other identifiers; (b) copyrights, moral rights (including rights of attribution and rights of integrity), neighboring rights, and related rights; (c) all trade secrets, inventions, discoveries, devices, processes, designs, techniques, trade secrets, ideas, know-how and other confidential or proprietary information, whether or not reduced to practice; (d) all domestic and foreign patents and the registrations, applications, renewals, extensions and continuations, in whole or in part, thereof.

“Personal Information” means all information that identifies or may be associated with a particular individual including but not limited to name, social security number, credit/debit card numbers, bank routing numbers, driver’s license number, phone numbers, physical addresses, email addresses, details of orders and fulfillments, and other personal information as defined by applicable laws and/or regulations.

“Purchase Order”, or “P.O.” means a written description of the Deliverables and Services to be provided by Neurotracker, as well as the fees owed to Neurotracker by Client, as may be amended in writing by the parties from time to time. To be effective, any modifications to the P.O. must be in a written addendum or amendment that references this Agreement and is executed by each of the parties.

Third-Party Materials means any code, content, or materials in which a third party has an ownership interest or holds Intellectual Property Rights. Third-Party Materials includes freeware, shareware or any open source code and open source software.

Services means the software development, modification, implementation, configuration and other tasks and services to be performed by Client pursuant to the P.O..

“System”, or “Neurotracker System” means a particular, defined versioning of the Neurotracker technologies which the Parties have agreed that Neurotracker would deliver, implement, customize, and/or operate, in whole or in part, for Client, as it shall be further described in the P.O. executed by both Parties, which may include any of the following elements or combinations thereof: source code, object code, software architecture, graphic files, design files, inventions, proprietary technologies, trade secrets, and/or particular elements customized for the Client.

2.  Scope of Services and Deliverables.
In accordance with the terms and conditions of this Agreement, Neurotracker shall deliver and install the Neurotracker System for Client, and perform the Services and/or provide for Client the Deliverables described in the P.O., including the initial P.O. executed by the Parties. Additional Systems, Deliverables and/or Services desired by Client, if any, will require the execution of a new P.O. which will become an addendum to this Agreement and must be signed and dated by both parties. Unless otherwise specified in a P.O., the Services shall be performed in Canada.

Purchase Orders. The P.O., or any subsequently executed P.O., shall contain a written project description specifying the Neurotracker System, including the delivery, testing, and acceptance procedures involving the System, Deliverables and Services and the fees to be paid to Neurotracker by Client. The P.O. shall include specific descriptions of each Deliverable and Services or phase thereof which shall be performed at the location specified and agreed upon by the Parties. If there is a conflict between any term of this Agreement and a P.O., the terms of the P.O. will prevail. A P.O. shall only be deemed applicable between the Parties and subject to the present Agreement if it is duly signed or digitally agreed upon by both Parties.

Non-Exclusivity. This is not an exclusive Agreement for either Party, and does not: (a) obligate Client to use the Systems or Services of Neurotracker, or (b) prevent Neurotracker from offering its Systems and Services to any third party. Its intent is to establish a framework by which Client can order Neurotracker Systems, Deliverables and/or Services by entering into P.O.’s with Neurotracker on a case by case basis.

3. Consideration and Payment.
Invoicing and Payment.
Neurotracker shall invoice Client and Client shall pay Neurotracker a fee in the amount, and according to the schedule, set forth in the applicable P.O.. Client shall pay the entire amount then due within thirty (30) days of Client’s receipt of the invoice. All fees and payments shall be in Canadian currency, unless otherwise expressly agreed by the parties in writing. Invoices to be paid in foreign currency must contain wire transfer instructions. Neurotracker may assess interest on any invoice remaining unpaid for more than thirty (30) days from receipt at a rate of the lesser of one-half percent (.5%) per month or the highest rate allowed by Quebec law. If there is a good faith dispute with regard to a portion of an invoice, Client will provide notice and detail of the dispute within a reasonable period of time, and will promptly pay the undisputed portion as provided in this Agreement.

Taxes. Neurotracker’ fees do not include applicable sales, goods, services, consumption, or value-added taxes. Each Party will be responsible for its own income taxes, gross receipts taxes, employment taxes, and property taxes. The Parties will cooperate in good faith to minimize taxes to the extent legally permissible. Neurotracker shall provide itemized tax detail on invoices as reasonably requested by Client and/or applicable law.

4. LICENSE AND Ownership.
License Granted to Client.
Subject to the terms of this Agreement and the P.O., Neurotracker grants to Client a perpetual, non-exclusive, royalty-free, worldwide license to use, exploit, copy, reproduce, manufacture, distribute, export, display, and perform the Neurotracker System and/or the Deliverables, including any Third-Party Materials incorporated therein in the course of Client’s business activities. Client agrees that, notwithstanding anything in this Agreement, Neurotracker shall not be precluded from utilizing its Intellectual Property, or any other Intellectual Property conceived or developed hereafter independently of the Services provided hereunder, or in the context of an agreement with a third party, including without limitation, its architecture and methodology, for its other customers, or any prospective customers, provided that such use does not breach Neurotracker’ confidentiality obligations to Client or Client’s Intellectual Property Rights.

Intellectual Property Rights. Unless specified otherwise in writing, all Intellectual Property Rights in and to the Neurotracker System, the Services and the Deliverables, exclusive of Client’s Pre-Existing Intellectual Property and/or Confidential Information, shall be the ownership of Neurotracker. Client’s Pre-Existing Intellectual Property shall be defined as any Intellectual Property rights owned by the Client independently of the Neurotracker System, Services, and/or the Deliverables. Any Intellectual Property right in any modification, improvement, enhancement, derivative work, or alteration made to the Neurotracker System and/or the Deliverables by the Client (Hereinafter an “Improvement”), shall be the sole and exclusive ownership of Neurotracker, and Client hereby grants to Neurotracker the sole and exclusive right to make any ownership claim and/or seek to obtain any Intellectual Property registration recognized by law on said Improvements, on a worldwide basis. Should an Improvement have been solely developed by Client, Neurotracker shall, from the moment of creation of said Improvement, grant to Client a perpetual, non-exclusive, royalty-free, worldwide license to use, exploit, copy, reproduce, manufacture, distribute, export, display, and perform said Improvement, without having to pay any additional fee or royalty to Neurotracker. The Parties shall only be authorized to utilize each other’s trade-marks, trade names, design marks, or logos in a manner previously authorized in an applicable P.O. between them, and Client shall not remove any Intellectual Property notices installed by Neurotracker on the System and/or Deliverables without Neurotracker’ prior written consent.

Use Restrictions. Client acknowledges that the Neurotracker System contains copyrighted material, trade secrets and other proprietary information of Neurotracker’ and its licensors and as such is protected by copyright laws, international copyright treaties, trade secret laws, and other applicable intellectual property laws.  Client agrees that it will not, nor permit any person or entity under its control to: (i) decompile, “unlock,” reverse-engineer, disassemble, or otherwise translate the object-code versions of the Neurotracker System to human-perceivable form, except as permitted by applicable law); (ii) retrace, discover, replicate or use the source code from which such object code may be generated; or (iii) except as expressly set forth herein, modify or make derivative works of the Neurotracker System.  Client further agrees that it will not remove, alter, cover, or obscure any confidentiality, trade secret, proprietary, or copyright notices, trade-marks, proprietary, patent, or other identifying marks or designs from any component of the Neurotracker System and it will reproduce and include in all copies of the Neurotracker System.

5. Representations, Warranties and Disclaimers.
Parties’ General Representations and Warranties
. The Parties hereby represent and warrant to each other that:
(a)    Authority; No Conflict.  They have full power and authority to enter in and perform this Agreement, grant the licenses provided in this Agreement and that the execution and delivery of this Agreement has been duly authorized. This Agreement does not violate any law or breach any other Agreement to which either Party is a party or is bound to.
(b)   No Infringement.  The Neurotracker System and/or the Deliverables do not infringe or misappropriate any third-party’s Intellectual Property Rights. Neurotracker has sufficient right, title, and interest in and to the Neurotracker and the Deliverables to enter into and perform under this Agreement and to grant the rights and licenses in this Agreement. Any element which Client may request that Neurotracker integrate into the Neurotracker System and/or the Deliverables shall not infringe or misappropriate any third-party’s Intellectual Property Rights; and
(c)    Compliance with Laws.  They shall comply with all federal, state and local laws, ordinances and regulations applicable to their obligations under this Agreement.
(d)   Warranty. For a period of twelve (12) months from acceptance by Client (the “Warranty Period”), (A) the System and Delivrables, including Third-Party Materials incorporated into the Deliverables, will function properly when properly installed and under ordinary use and will perform in accordance with the Documentation, and (B) any media on which any part of the System or Deliverables is installed, including Third-Party Materials incorporated therein, is delivered will be free from material defects in design, workmanship and materials. Neurotracker undertakes to repair, fix, and/or replace any part of the System or Deliverables that fails to comply with the present subsection during the Warranty Period, the whole within a reasonable time delay following reception of a written notice by Client detailing the alleged failure.


6. Limitation of Liability.
Except for liabilities arising out of The indemnities contained in the present Section hereinbelow, Client’s breach of Neurotracker Intellectual Property or confidentiality, in which case the present limitation shall not apply, each party’s liability for a claim of any nature arising out of this Agreement, regardless of whether the claim is based in contract, tort, strict liability, or otherwise, shall not exceed the fees paid by Client to Neurotracker pursuant to this Agreement.


7. Indemnities.
Mutual Indemnity
. The parties shall indemnify, defend and hold each other, their parents, subsidiaries, affiliates, officers, directors, employees, representatives, principals (partners, shareholders or holders of an ownership interest, as the case may be) and agents harmless from and against all claims, actions, liabilities, damages, losses, judgments, fines, penalties, costs and expenses, including attorneys’ fees, in each case that are brought by third parties and arising out of any actual or alleged death of or bodily injury to any person, or loss or damage to any real or tangible personal property claimed to result in whole or in part, due to the negligence or willful misconduct of the indemnifying party’s employees or agents in the performance or receipt of the Services or while on the other party’s premises. The parties waive any immunity they might enjoy under state workers compensation laws to the extent those laws might be raised as a defense in any indemnification claim under this section.

Neurotracker’ Intellectual Property Indemnity. Neurotracker shall indemnify, defend and hold Client, its parents, subsidiaries, affiliates, officers, directors, employees, representatives, and agents harmless from and against all claims, actions, liabilities, damages, losses, judgments, fines, penalties, costs and expenses, including attorneys’ fees, in each case that are brought by third parties and arising out of any actual or alleged infringement, misappropriation or other violation of the Intellectual Property Rights of any third party by the Neurotracker System and/or the Deliverables or Services, including any Third-Party Materials incorporated into the Deliverables, provided by Neurotracker. If the Neurotracker System or any Deliverable is held to be infringing, Neurotracker shall at its expense (a) procure the right for Client to continue using it, (b) replace it with a non-infringing equivalent, or (c) modify it to make it non-infringing. If none of these alternatives is commercially reasonable, Neurotracker shall direct the return of the System and Deliverable.

Indemnity Process. In the event of an indemnified claim under the present Section, the parties shall comply with the following:  (a) the indemnified party shall provide to the indemnifying party written notice of any such claim within fifteen (15) business days after indemnified party’s receipt of notice of such claim, provided, however, that failure to provide notification of a claim shall only mitigate the indemnifying party’s obligations under the present Section to the extent the indemnifying party is disadvantaged by such delay; (b) the indemnified party shall grant to the indemnifying party, and the indemnifying party will have, the exclusive right to defend any such claim and make settlements thereof at the indemnifying party’s own discretion; (c) the indemnified party shall not settle or compromise such claim, except with prior written consent of the indemnifying party; and (d) the indemnified party shall give, at the indemnifying party’s expense, such assistance and information as the indemnifying party may reasonably require to settle or oppose such claims. The indemnified party may, however, participate in the defense or settlement of such claim at its own expense and with its own choice of counsel.

Exclusions. Neurotracker will not indemnify Client, however, to the extent the claim of infringement is caused by: (a) Client’s modification of the System or Deliverable without the permission or assistance of Neurotracker where the infringement would not have occurred but for such modification, (b) Client’s failure to use corrections or enhancements made available by Neurotracker within a reasonable period of time, provided that Neurotracker advises Client that its failure to use such corrections or enhancements could result in a claim of infringement and provides a reasonable period of time for Client to implement such corrections or enhancements; or (c) Client’s use of the Deliverable in combination with any hardware, software or other products or services not supplied or approved by Neurotracker or specified in this Agreement or any P.O. or reasonably anticipated to be used, in a manner that causes the infringement.

The present Section shall not be construed to make Neurotracker responsible for any loss, damage, liability or expense to the extent resulting from injuries to third parties or damage to property to the extent caused by the negligence of Client or its agents or employees.

8. Confidentiality.
. The party receiving Confidential Information (the “Receiving Party”) may use Confidential Information of the discloser of such information (the “Discloser”): (i) to exercise its rights and perform its obligations under this Agreement; or (ii) in connection with the parties’ ongoing business relationship. Receiving Party will not use any Confidential Information of the Discloser for any purpose not expressly permitted by this Agreement. Each party agrees to hold the Confidential Information of the other party in confidence and not to disclose such Confidential Information to any third party, without the prior written consent of the other party.  Each party shall, however, be permitted to disclose relevant aspects of such Confidential Information only to its officers, employees and contractors on a need-to-know basis for purposes of this Agreement, provided that it has undertaken to protect the Confidential Information to the same extent as required under this Agreement, including enforcement of a duty of confidentiality no less restrictive than Receiving Party’s obligations hereunder.  Receiving Party will protect discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Receiving Party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.  The Receiving Party shall take prompt action upon learning of any unauthorized use or disclosure of Discloser’s Confidential Information, including notice to Discloser unless that Receiving Party is prohibited by law from providing such notice.

Exceptions. The obligations set forth in the present Section do not apply if and to the extent the Receiving Party establishes that:
(a)     the information disclosed to the Receiving Party was already known to the Receiving Party, without obligation to keep it confidential;
(b)   the Receiving Party received the information in good faith from a third party lawfully in possession thereof without obligation to keep such information confidential;
(c)     the information was publicly known at the time of its receipt by the Receiving Party or has become publicly known other than by a breach of this Agreement; or
(d)   the information is independently developed by the Receiving Party without use of the other party’s Confidential Information.
provided that, in the case of (a) through (d) above, such circumstances are demonstrated with written evidence thereof.  The foregoing exceptions do not apply to Personal Information. In addition, Receiving Party will be allowed to disclose Discloser’s Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party will use reasonable efforts under the circumstances to notify Discloser promptly and in writing of such requirements so as to provide Discloser  the opportunity to obtain such protective orders or other relief as the compelling court or other entity may grant and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

Permitted Disclosure. Notwithstanding anything to the contrary herein, neither party shall disclose the terms and conditions of the Agreement to any third party, without the prior written consent of the other party, except: (a) as required by any court or other governmental body; (b) as otherwise required by law; (c) to legal counsel of the parties; (d) in confidence, to accountants, banks, and financing sources and their advisors; (e) in connection with the enforcement of the Agreement or rights under the Agreement; or (f) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction.

Personal Information. Without limiting its other Confidentiality obligations under this section, the Parties agree that all Personal Information about each other’s individual users, and any other information that is or may be associated with an individual person is and will remain the exclusive property of that Party, and will be treated as Confidential Information by the other. Without limiting the generality of the foregoing, the Client’s use of the Neurotracker System and/or the Deliverables or Services shall, at all times, be subject to the DPPP.

Handling Upon Termination. Upon termination of this Agreement and at the request of Discloser, the Receiving Party shall return, or if requested by Discloser, destroy, any Confidential Information in the Receiving Party’s possession or control and certify in writing to Discloser that the Receiving Party has fully complied with these requirements. Destruction of Personal Information means securely deleting all such information and all copies of it from Client’s system.  If Personal Information is in a database, Client will execute a delete command, and will not use any soft deletes such as an indicator set to a particular value.  If Personal Information is in a file, the file and all copies of the file will be deleted from the storage media.  Client shall record what, when and how the data in question was disposed of.  Notwithstanding the foregoing, the Receiving Party may keep one copy of all of Discloser’s Confidential Information to the extent required (i) to comply with applicable laws and regulations and (ii) to exercise any rights that survive termination of this Agreement.

9. Term and Termination.
. The term of this Agreement is three (3) years from its Effective Date (the “Term”).  Prior to the expiration of the Term, the Parties may mutually agree to extend the term of this Agreement. In that event, the Parties shall sign and date an addendum to this Agreement extending the term (“Extended Term”). Notwithstanding the foregoing, the Term shall not expire until the completion or termination of any P.O. then in effect.

License Term. The License Term for the System licensed by Neurotracker pursuant to this Agreement will be perpetual unless otherwise expressly specified otherwise in an applicable P.O.

Termination For Default. Either party may terminate this Agreement due to default by the other party (the “Defaulting Party”) by written notice to the Defaulting Party if the Defaulting Party defaults in the performance of, or fails to perform, any of the material obligations of this Agreement, and such default is not remedied within thirty (30) days after written notice from the non-defaulting party (“Default Notice”), then the non-defaulting party shall have the right (a) to terminate this Agreement by giving written notice to the Defaulting Party and/or (b) to avail itself of any and all other rights and remedies to which it may be entitled by law or equity.

Termination for Insolvency. Either party may terminate this Agreement effective immediately upon written notice to the other party if the other party: (a) terminates or suspends its business; (b) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to control of a trustee, receiver or similar authority; or (c) becomes subject to any bankruptcy or insolvency proceeding.  In the event that any of the above events occurs, that party shall immediately notify the other party of its occurrence in writing

Effect of Termination. The following shall occur upon the termination of this Agreement and all P.O.s, by either Party, or its expiration: (a) Client shall return to Neurotracker all papers, materials and other property held by it in connection with the performance of this Agreement; (b) Neurotracker shall be paid for any unpaid and accepted Deliverables up to the date of termination (based on an hourly rate, or, for fixed fee P.O.s (if applicable), on a pro rata basis; and (c) if the Agreement or any P.O. is terminated due to the default of Neurotracker, Neurotracker shall provide to Client, at Client’s request and for no additional charge, transition services to effectively transition the work to another vendor.

Dispute Resolution. All claims and disputes that are between Client and Neurotracker or either’s subsidiaries, parents, affiliates, officers, directors and/or employees, and arise out of or relate to this Agreement or its subject matter, interpretation, performance or enforcement, (including any tort or statutory claim) (“Dispute”) shall be arbitrated in English by a sole arbitrator in Montreal, Quebec, in accordance with the Canadian Arbitration Association (the “CAA Rules”) and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof.  All documents and information relevant to the Dispute in the possession of any party shall be made available to the other party not later than sixty (60) days after the demand for arbitration is served, and the arbitrator may permit such depositions or other discovery deemed necessary for a fair hearing.  The hearing may not exceed two days.  The award shall be rendered within ninety (90) days of the demand.  The parties have included these time limits to expedite the proceeding, but they are not jurisdictional, and the arbitrator may for good cause permit reasonable extensions which shall not affect the validity of the award.  The arbitrator may award interim and final injunctive relief and other remedies, but may not award punitive, exemplary, treble, or other enhanced damages. To the fullest extent permitted by applicable law, no arbitration described herein shall be joined to an arbitration involving any other party, whether through class arbitration proceedings or otherwise.  In the case of contradiction between the provisions of the present Section and the CAA Rules, the present Section shall prevail. The limitations on remedies described above may be deemed ineffective to the extent necessary to preserve the enforceability of the agreement to arbitrate. If any provision of this agreement to arbitrate is held invalid or unenforceable, it shall be so held to the minimum extent required by law and all other provisions shall remain valid and enforceable.

11. General Provisions.
11.1 Export Control
.  Each party will retain responsibility for its compliance with all applicable export control laws and economic sanctions programs relating to its respective business, facilities, and the provision of services or products to third parties.
11.2 No Third Party Beneficiaries.  This Agreement is solely for the benefit of the parties hereto, and nothing in this Agreement will be deemed to create any third party beneficiary rights in any person or entity not a party to this Agreement.
11.3 Assignment. Client shall not assign this Agreement or delegate any duties under this Agreement without the prior written consent of Costco, which may be granted or withheld in Costco’s  sole and absolute discretion. Any assignment does not relieve the Client of its obligations under this Agreement or any P.O. or license. Any attempt to assign this Agreement or any rights or obligations hereunder in breach of the present Section will be void and of no effect.
11.4 Notices.  Unless otherwise agreed by the parties, all notices required under this Agreement will be deemed effective when received and made in writing by either (a) personal delivery, (b) internationally recognized courier, or (c) certified mail, return receipt requested, at the addresses specified in the P.O.

Injunctive Relief. It is understood and agreed by each of the parties that a breach of certain provisions of this Agreement by the other party may cause irreparable damage for which recovery of monetary damages would be inadequate and that the non-breaching party may seek injunctive relief or other equitable relief to protect its Confidential Information and Intellectual Property Rights under this Agreement, in addition to any and all remedies available at law.

Venue, Jurisdiction, Applicable Law. Client hereby consents to the personal jurisdiction and venue of the provincial and federal courts located in Quebec, Canada, for any court action or proceeding. This Agreement shall be construed under the laws of the Province of Quebec without regard to its conflicts of laws principles.  The parties hereby acknowledge and agree that the following provisions shall not apply to this Agreement and each party hereby waives any and all rights arising under these provisions: (i) the United Nations Convention on Contracts for the International Sales of Goods; and (ii) the Uniform Computer Information Transactions Act (“UCITA”) to the extent enacted in any state having jurisdiction over this Agreement.

Costs and Attorneys’ Fees. If any action is required to enforce, construe or interpret this Agreement or any provision contained herein, the prevailing party shall be entitled to its costs and reasonable attorneys’ fees.

Severability. If any term or provision of this Agreement should be declared invalid by a court of competent jurisdiction, (a) the remaining terms and provisions of this Agreement will be unimpaired, and (b) the invalid term or provision will be replaced by such valid term or provision as comes closest to the intention underlying the invalid term or provision.

No Waiver; Amendments. This Agreement may not be amended except by a subsequently dated written instrument signed on behalf of both parties by a duly authorized person provided. No waiver by either party of any breach or default by the other under this Agreement shall be construed as a waiver of the same or any subsequent breach or default, nor shall any delay or omission to seek a remedy or exercise a right be construed as a waiver by a party of its right or remedies with respect to such breach or default.

Independent Contractor. In performing its obligations hereunder, Neurotracker shall act in the capacity of an independent contractor and not as an employee or agent of Client. Neurotracker acknowledges that as an independent contractor, neither it nor any of its employees or contractors will be eligible for any Client employee benefits, including, but not limited to, vacation, medical, dental, or pension benefits.  Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of third-party strikes, riots, insurrection, fires, flood, storm, explosions, acts of terrorism, acts of God, war, earthquakes, or any other causes that are beyond the reasonable control of such party.  The party claiming force majeure shall give immediate written notice of the event, and again upon termination of the event.

Non-Hiring. Both parties agree that, during the term hereof and for a period of one year following completion or termination of this Agreement, neither party will knowingly employ, make an offer of employment to, or solicit an employee, former employee or agent of the other party who is known to be involved in this Agreement and the execution of the Services hereunder, without the prior written consent of the other party.  Notwithstanding the foregoing sentence, publicizing available employment positions in media of mass communication or through other standard practices not targeted to a particular person shall not be deemed solicitation, and the hiring of persons in response thereto will not be deemed a violation of this section.  

Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute any part of this Agreement.

Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which shall be deemed to constitute one and the same agreement.  This Agreement may be executed by facsimile, which shall be deemed an original.

Entire Agreement. This Agreement, together with its Exhibits, where applicable, and any additional P.O.’s, which are incorporated herein by reference, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede in all respects all prior or contemporaneous proposals, negotiations, conversations, discussions and agreements between the parties concerning the Deliverables.

Neurotracker and Client have agreed to the terms of the present CMLST as of the date of signature of the P.O. referenced herewith.