PERSYST SOFTWARE LICENSE, SERVICES AND PRIME AGREEMENT

This Agreement last Updated: March, 2023

PERSYST SOFTWARE LICENSE, SERVICES & PRIME AGREEMENT

This Agreement becomes a legally binding contract between Persyst Development Corporation (“Persyst”) and the party acquiring the license to use the Software (“Licensee”) when Licensee or its agent (1) clicks or otherwise indicates electronic acceptance, (2) installs, accesses, or uses the Software; (3) accepts the Persyst Quotation and/or Order Confirmation, (4) registers the Software with Persyst, and/or (5) orders, renews, or benefits from the services of Persyst.  Persyst and Licensee may each be referred to in this Agreement as a “party” and together as the “parties”.

1. Medical Field Only. Licensee represents and warrants to Persyst that Licensee provides medical services or medical research (together, the “Medical Field“) as a hospital, clinic, or academic medical organization, or Licensee is a third party medical services provider.

2. Software.

2.1 Software. “Software” means the Continuous / Long-Term Acquisition, Clinical Review, Advanced Review, Spike & Seizure Review, or other Persyst software products, and/or combination suites. The specific Persyst Software to be licensed to Licensee will be described in one or more (i) quotations or order confirmations provided by Persyst or an authorized reseller and accepted by Licensee (“Quote”) or (ii) orders provided by Licensee or an authorized reseller on behalf of a Licensee and accepted by Persyst (“Order”). However, the parties agree that any terms and conditions included in a purchase order or other similar document from a Licensee will not constitute contractually binding provisions or binding amendments to this Agreement, unless signed by an officer of Persyst. The Quote and/or Order shall also state the quantity and type of users and the fees to be paid to Persyst for the Software and any Services (defined in Section 4).

2.2 License Grant. In reliance upon the representation and warranty in Section 1, and if the Software is registered and the license is paid in full, Persyst hereby grants to Licensee a nonexclusive perpetual license to install and use the Software only for use in the Medical Field on a single Computer, so long as Licensee complies with the terms of this Agreement. “Computer” means a physical device that accepts information in digital form and manipulates it for a specific result based on a sequence of instructions. Examples include desktop computers, laptops, tablets, emergency mobile units, and patient monitoring devices, but excluding virtual devices, servers and similar products unless expressly included in the type of license paid for by Licensee.

2.3 License Types. For clarity, Persyst licenses are designated for use by a single simultaneous user/record unless the license is designated as a server license. Server licenses are granted for up to four simultaneous users/records. If the Software is installed on a Computer for multiple users throughout a network, or through remote access, a license must be purchased from Persyst for each remote user, simultaneous user, and/or concurrent network seat, or a server license must be purchased. If the license is for evaluation purposes, then the license grant is limited, revocable by Persyst at any time, and subject to other conditions provided by Persyst to Licensee prior to installation.

2.4 User Guides. During the term of the applicable license grant, Persyst hereby grants to Licensee a nonexclusive license to use the Persyst user guide (“User Guide”) included as part of the Software solely as necessary to support its use of the Software.

3. Terms and Conditions Applicable to Software.

3.1 Installation. Persyst shall provide the Software to Licensee through a reasonable system of electronic download. Licensee shall be responsible for installation of the Software according to the User Guide.

3.2 Validated Configurations and System Changes. Software shall only be used in combination with hardware, software, and operating systems validated and supported by Persyst, as may be updated on one or more occasions at http://www.persyst.com/support/supported-formats/ (“Validated Configuration”). Prior to any System Change, Licensee shall first confirm that the planned System Change will result in a Validated Configuration for Persyst. If the new system has been validated by Persyst, Licensee may make the System Change. If the new system has not been validated by Persyst, Licensee shall not make any System Change unless (a) Licensee updates its version of the Software to one that is supported on the proposed new system; or (b) Licensee receives written consent from Persyst. Licensee may be required to reinstate Persyst Prime, if lapsed, in order to obtain Persyst’s consent. For clarity, Persyst is not required to validate any system. “System Change” means a change to different hardware, operating system version, or EEG manufacturer software version on a Computer running the Software.

3.3 Obligations. Licensee shall at all times (a) prevent unauthorized access to or use of the Software, and promptly notify Persyst of suspected or actual unauthorized access or use, and (b) comply with all applicable laws and government regulations, including laws governing the protection of personally identifiable information and protected health information. Licensee is responsible for all user activity, and any use of the Software. Licensee shall not transmit to Persyst any Personally Identifiable Information, Limited Data Set, or Protected Health Information. Licensee shall promptly report to Persyst any Security Incident that pertains to Persyst or the Software. All capitalized words and phrases in this paragraph not defined elsewhere in this Agreement will have the meanings defined in the Health Insurance Portability and Accountability Act (HIPAA).

3.4 Restrictions. Licensee shall not (a) modify, create derivative works from, distribute, publicly display or perform, or sublicense the Software; (b) decompile, disassemble, reverse engineer or otherwise attempt to derive any of the source code or other non-public features, elements or data of the Software; (c) probe, test, tamper with, defeat, disable or circumvent any encryption, or other protective mechanism; (d) use the Software for service bureau, time-sharing, software-as-a-service, or any similar manner, with or without charge; (e) reproduce the Software, except that Licensee may make reasonably necessary copies of the Software solely for backup and archival purposes; (f) use the Software for purposes of published competitive analysis or development of a competitive product; and/or (g) enable, encourage or allow anyone to do any of the forgoing.

3.5 Diagnostic Data. Licensee understands and consents to the following: The Software will automatically send electronic diagnostic data to Persyst but Licensee will have the right to disable this feature at any time. The diagnostic data includes metrics related to the functioning of the Software, which Persyst will not disclose to any third parties. The data will not include any protected health information (PHI), personally identifiable information (PII), or other information generally protected by privacy laws. Persyst’s receipt of diagnostic data will allow Persyst to (a) monitor the Software functionality, (b) fix problems or errors, (c) improve the Software, and (d) accelerate response and resolution times.

3.6 Export Restrictions. Licensee shall not (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software to a country subject to a United States embargo.

3.7 U.S. Government Restricted Rights. The Software is provided with Restricted Rights. Use, duplication or disclosure of the Software by the Government is subject to restrictions stated in subparagraph (c)(1) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1)(ii) and (2) of Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, if and to the extent applicable.

3.8 Decompiling Restrictions. If Licensee has any non-waivable right to decompile the Software under applicable law and it is necessary to do so in order to achieve interoperability of the Software with another software program, then Licensee may do so only if (a) Licensee first asks Persyst in writing to provide the information necessary to achieve such interoperability, and (b) Persyst fails or refuses to make the information available. Any permitted decompilation may only be performed by Licensee. Persyst has the right to impose reasonable conditions before providing such information. Any information supplied by Persyst or obtained by Licensee as permitted under this Section (i) will constitute Persyst Confidential Information, (ii) may only be used by Licensee as described in this paragraph, (iii) shall not be disclosed to any third party; (iv) shall not be used for competitive purposes to the detriment of Persyst; and (v) shall not be used for any act that infringes Persyst’s intellectual property rights.

4. Persyst Prime. For the duration stated in a Quote or Order, and subject to payment of applicable Persyst Prime fees and ongoing compliance of this Agreement by Licensee, Persyst shall provide to Licensee one or more of the support, training, and maintenance services stated in this Section 4 (collectively, “Persyst Prime”). Persyst Prime will be provided to Licensee during the first year following the order date for new Software licensed under Section 2.2 at no additional charge. If Persyst Prime ends for any reason, and Licensee desires reinstatement, then Licensee may extend their Persyst Prime from when it expired or may reinstate their Persyst Prime for 75% of the then-current list price.

4.1 Updates. From time to time at Persyst’s discretion, Persyst will develop and provide Licensee with updates to the Software that are made generally available to licensees of the Software that are current subscribers of Persyst Prime. However, updates will not under any circumstances include new software developed and marketed by Persyst as separate products or services. After commercial release, updates are hereby included in the definition of “Software”. Licensee shall install all updates within a reasonable time after receipt.

4.2 Support and Training. Persyst shall provide technical and clinical applications support and web-based training to the Licensee for the Software via telephone, email and web-conferencing during Persyst’s normal business hours. All support and training will be performed remotely. If on-site work is agreed to by Persyst, Licensee shall pay reasonable travel expenses (including travel time) of the Persyst personnel that are agreed to in advance by Licensee.

4.3 Error Corrections. “Error” means an error in coding or logic that causes the Software not to substantially function as described in the User Guide. If Licensee determines that an Error exists in the Software, Licensee shall first follow applicable error procedures specified in the User Guide. If error procedures are not able to correct the Error, Licensee shall promptly contact Persyst via email at support@persyst.com, specifically describing the defects. Upon receipt of notification of a reported Error, Persyst will attempt to reproduce and verify the Error and, if verified, Persyst will attempt to correct the Error within the time and priority reasonably determined by Persyst that are approved in advance by Licensee.

4.4 Additional Features. On one or more occasions Persyst may provide or make available components or additional features to the Software or Persyst Prime.

5. Services. Only if and to the extent stated in a Quote or Order, and subject to payment of applicable fees and ongoing compliance of this Agreement by Licensee, Persyst shall provide to Licensee certain services, which may include Persyst Mobile, Persyst ESI powered by Epilog and the specific functionalities designated as the Persyst Imaging Workflow (collectively, the “Services”).  Despite use of the term “Licensee” and other possible licensing terminology in this Agreement, the Services are made available to Licensee on a subscription basis.

5.1 Persyst Mobile. If the Quote or Order includes Persyst Mobile, then for the duration stated in a Quote or Order, Licensee may access and use Persyst Mobile. However, access and use is conditioned on (a) current payment of the Persyst Mobile fees; (b) compliance with this Agreement by Licensee; and (c) acceptance of, and compliance with, any terms included in the app and/or web browser.

5.2 Persyst ESI Powered by Epilog. If the Quote or Order includes Persyst ESI, then for the duration stated in a Quote or Order, Licensee may access and use Persyst ESI. However, access and use is conditioned on (a) current payment of the Persyst ESI fees; and (b) ongoing compliance with this Agreement by Licensee. Additionally, Persyst ESI is subject to the Persyst ESI Service Agreement (“ESLA”) incorporated by this reference in Appendix A, and the following:

5.2.1 Definitions. “ESI” means the integrated solution with which users access PreOp functionality directly from the Software in order to upload data for Licensees to process EEG and MRI data for clinical assessment of patients and for clinical trials and research.  “PreOp” means the remote server based medical device software, 510(k) Number K172858, developed, hosted and maintained by Epilog NV (“Epilog”) that combines EEG data and MRI images to visualize recorded EEG activity in 3D in the brain, and any subsequent improvements, products or K Numbers that may result from Persyst ESI.

5.2.2 Unit Limitations. Each unit will be limited to use on one physical Epilepsy Monitoring Unit (EMU), including the records and patients from that one EMU.

5.2.3 Restricted Use. Licensee shall not access or use Persyst ESI for any purpose except to process EEG and MRI data for clinical assessment of patients, clinical trials, and training. Licensee must not under any circumstances use Persyst ESI (a) on previously acquired data in patients who have already undergone epilepsy surgery; (b) for the purpose of research; or (c) for other general evaluations, unless Licensee has entered into a separate written research contract with Persyst to do so. Additionally, Licensee understands and agrees that (i) Persyst ESI is restricted by applicable law to sale to a physician, licensed healthcare provider, or authorized resellers; (ii) Persyst ESI report and results are not intended as a substitute for professional medical advice, diagnosis, treatment, and do not constitute medical or other professional advice; (iii) Persyst ESI reports and results cannot be used as the sole basis for deciding the epileptogenic focus; and (iv) the decision to localize the epileptogenic focus can only be made by the treating physician.

5.2.4 Delegation. Persyst may subcontract or otherwise delegate all or any part of its responsibilities for Persyst ESI to Epilog. However, Licensee shall conduct all communications regarding Persyst ESI with Persyst unless Persyst expressly permits otherwise.

6. Terms and Conditions Applicable to Services.

6.1 Acceptable Use. Licensee shall not (a) use the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Services; (b) provide passwords or other log-in information to any third party; (c) share non-public features or content with any third party; (d) access the Services in order to build a competitive product or service; or (e) engage in web scraping or data scraping on or related to the Services.

6.2 Unauthorized Access. Licensee shall take reasonable steps to prevent unauthorized access to the Services. Licensee shall notify Persyst immediately of any known or suspected unauthorized use of or access to the Services or breach of its security, and Licensee shall use best efforts to immediately stop such breach.

6.3 Risk of Exposure. If Licensee uses the Services as stated in Persyst published material and in compliance with this Agreement, then no personal health information (PHI) or personally identifiable information (PII) will be transmitted to, or stored by, Persyst or Epilog. Despite the foregoing, Licensee understands and agrees that hosting Licensee data online involves risks of unauthorized disclosure or exposure and, in accessing and using the Services, Licensee assumes those risks. Persyst offers no representation, warranty, or guarantee that any Licensee data in electronic form managed or stored by Persyst will not be exposed or disclosed through errors or the actions of third parties.

6.4 Data Accuracy. Persyst will have no responsibility or liability for the accuracy of data uploaded to the Services by Licensee or its users.

7. Intellectual Property and Feedback.

7.1 Intellectual Property. Except for the rights expressly granted in this Agreement, Persyst retains all rights, title, and interest in and to the Software and Services, including all IP Rights therein. IP Rights means all current and future rights in copyrights, trade secret rights, know-how, patents, design rights, and any other intellectual property or proprietary rights that may exist anywhere in the world, in each case whether unregistered, registered, or comprising an application for registration, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of the foregoing.

7.2 Feedback. If Licensee provides Persyst feedback or ideas for modifying the Software or Services (collectively, “Feedback”), Licensee hereby grants Persyst a perpetual, irrevocable, worldwide license to use any Feedback, without compensation, without any obligation to report on such use, and without any other restriction. This includes the right to exploit Feedback as well as the right to grant sublicenses under copyright, patent, and any other form of intellectual property.

8. Limited Warranty, Disclaimers and Remedies.

8.1 Limited Warranty. Persyst warrants to Licensee that the Software will substantially conform to the User Guide for a period of one year after the Software order date (“Warranty Period”). To be valid, all warranty claims must be made within the Warranty Period by contacting Persyst via email at support@persyst.com or by telephone at 928-708-0705. For clarity, this warranty only applies to new orders of the Software.

8.2 Exclusions. Despite Section 8.1, Persyst provides no warranty regarding, and shall have no responsibility for, any claim arising out of (a) modifications of the Software by anyone other than Persyst; (b) impairment caused by accident, neglect, or Force Majeure Events; (c) Licensee’s failure to incorporate updates that would have avoided the issue; or (d) use in combination with any hardware, operating system or software not authorized in the User Guide or in writing by Persyst; (e) use of a non-Validated Configuration; or (f) other causes not under the control of Persyst.

8.3 Disclaimer. EXCEPT AS EXPRESSLY STATED IN SECTION 8.1, LICENSEE ACCEPTS THE SOFTWARE AND SERVICES “AS IS”, AND PERSYST MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. PERSYST DOES NOT GUARANTEE THAT THE SOFTWARE OR SERVICES WILL (A) PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT ERRORS WILL BE CORRECTED, (B) OPERATE IN COMBINATION WITH LICENSEE DATA OR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SYSTEM, SOFTWARE, SERVICES OR DATA NOT PROVIDED OR APPROVED IN WRITING BY PERSYST, OR (C) MEET LICENSEE REQUIREMENTS, SPECIFICATIONS, OR EXPECTATIONS.

8.4 Exclusive Remedies. In the event of a breach of the warranty in Section 8.1, Persyst will, at Persyst’s election, either (a) repair the Software; (b) replace the Software; or (c) refund the fee Licensee paid for the Software. The remedies of replacement of the Software and refund shall be subject to Licensee’s certification of destruction or return of all copies of the defective Software to Persyst. Replacement Software will be warranted for the remainder of the warranty term or 30 days, whichever is longer. The provisions of this Section constitute Licensee’s sole and exclusive remedy and Persyst’s entire liability for breach of warranty.

9. Limitation of Liability.

9.1 IN NO EVENT WILL PERSYST BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, DATA, BUSINESS, OR GOODWILL ARISING FROM, OR IN ANY WAY RELATED TO THE SOFTWARE, PERSYST PRIME, THE SERVICES, OR THIS AGREEMENT.

9.2 THE TOTAL AGGREGATE LIABILITY OF PERSYST FOR ALL CLAIMS, LOSSES, EXPENSES, DAMAGES AND LIABILITIES OF ANY NATURE WHATSOEVER (INCLUDING ATTORNEY’S FEES AND COSTS) (COLLECTIVELY, “CLAIMS”) ARISING FROM OR IN ANY WAY RELATED TO THE SOFTWARE, PERSYST PRIME, THE SERVICES, OR THIS AGREEMENT WILL NOT EXCEED THE GREATER OF $10,000 OR THE FEES RECEIVED BY PERSYST FROM LICENSEE (WHETHER DIRECT OR THROUGH A RESELLER) FOR THE SOFTWARE, PERSYST PRIME, OR SERVICES GIVING RISE TO THE CLAIMS DURING THE 6-MONTH PERIOD IMMEDIATELY PRECEDING DELIVERY OF THE FIRST CLAIM BY LICENSEE TO PERSYST.

9.3 THE LIMITATIONS IN SECTION 9.1 AND 9.2 ALSO APPLY TO THE BENEFIT OF PERSYST’S OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, (a) AS WELL AS TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF PERSYST WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF LICENSEE’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. This Section 9 allocates the risks under this Agreement and Persyst’s pricing reflects the allocation of risk and the above limitations. If applicable law limits the application of Sections 8 or 9, Persyst’s liability will be limited to the maximum extent permissible.

10. Confidential Information.

10.1 “Confidential Information” refers to the following information that either party (“Discloser”) discloses to the other (“Recipient”), whether written, electronic, verbal, or otherwise, and whether owned by Discloser or third parties: (a) any writing Discloser marks “Confidential” or the equivalent; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within 15 business days; (c) the non-public features and functions of the Persyst Software or Services, for which Persyst is Discloser; and (d) any other non-public information disclosed by Discloser that a reasonable person should understand is confidential. Despite the foregoing, Confidential Information does not include information that (i) is in Recipient’s possession at the time of Discloser’s disclosure without obligation of confidentiality; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is rightfully received from a third party without obligation of confidentiality.

10.2 Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and is bound by a nondisclosure agreement with, or fiduciary duties to, Recipient with terms no less restrictive than those of this Section 10; and (b) shall not disclose Confidential Information to any third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse, disclosure, or misappropriation of Confidential Information that comes to Recipient’s attention. Despite the foregoing, Recipient may disclose Confidential Information as required by subpoena, court order, or other applicable law. To the extent legally permitted, Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.

10.3 Recipient agrees that breach of this Section 10 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage.

10.4 The obligations in this Section 10 will continue throughout the term of this Agreement and shall survive expiration or termination with respect to trade secrets, for so long as that Confidential Information remains a trade secret, and all other Confidential Information for a period of five (5) years after expiration or termination of this Agreement. Nothing in this Section is intended to limit any statutory obligations to maintain confidentiality.

11. Audit. During the term of this Agreement and for three years after, Persyst may audit Licensee’s use of the Software and Services following five days’ advance written notice. Licensee shall cooperate with the audit, including access to any books, computers, records, or other information that may relate to use of the Software and Services. Persyst may appoint a third party auditor to perform the audit, provided such third party executes a reasonable nondisclosure agreement with Licensee. Such audit may not unreasonably interfere with Licensee’s business activities, and Persyst may not conduct an audit more than once per calendar year. Persyst shall give Licensee a written summary of any audit that finds unauthorized exploitation of Software or Services. If Licensee has used, reproduced, distributed, or otherwise exploited the Software or Services in excess of 5% of the copies or fees that would have applied to authorized use, Licensee shall reimburse Persyst for the reasonable cost of the audit, or of the next audit in case of discovery without audit, in addition to such other rights and remedies as Persyst may have. For each unauthorized copy of the Software and use of the Services, Licensee shall promptly pay: (i) all fees pursuant to this Agreement, for the period beginning at the start of the term during which unauthorized use occurred; and (ii) interest at the rate of 10% per annum or the maximum rate permitted by law, whichever is less, compounded daily, for the same period.

12. Benchmark Tests. Licensee shall not directly or indirectly by enabling, encouraging, or permitting any third party to do so, publish, file with any government entity, or except for Licensee’s own internal purposes, otherwise disclose the results of any scientific, medical, competitive or other Software benchmark test (“Benchmark Test”) without the prior written consent of Persyst. Persyst will not unreasonably withhold consent if Persyst is provided with the methodology to be used as well as reasonable access to the data. Additionally, the Benchmark Test must not violate any intellectual property rights of Persyst or any applicable law. If Licensee breaches this Section, then upon demand, Licensee shall pay Persyst the sum of $250,000 as liquidated damages. The parties agree that quantifying damages arising from Licensee’s breach of this Section is inherently difficult because the breach may, among other things, negatively impact the reputation of the Software, Services, and/or Persyst, cause Persyst to lose licensees, resellers, profits and goodwill, and/or require Persyst to prepare and implement a correction campaign. Additionally, it is stipulated that the agreed sum is not a penalty, but rather an exclusive remedy for a breach of this Section and a reasonable measure of damages based on the experiences of each of the parties, and given the nature of the damages and losses that will result.

13. Termination. Persyst may immediately terminate this Agreement, including the license to the Software and access to the Services, if Licensee breaches this Agreement and fails to cure the breach within 10 days after written notice of the breach. Upon any termination or expiration, Licensee shall immediately permanently uninstall or return to Persyst all copies of the Software and User Guides in Licensee’s possession or control and stop all access and use of the Services. Termination of this Agreement will not constitute an exclusive remedy. Sections 3.3, 3.4, 5.2.2, 6, 7, 8.3, 9, 10, 11, and 13 through 21 of this Agreement will survive and remain in effect after this Agreement ends.

14. Informal Resolution. Before either party files a legal proceeding against the other party, the parties shall first refer the dispute to their respective executive officers who will attempt to resolve the dispute in a reasonable and good faith manner, either in person or by pre-scheduled teleconference. If the executive officers are unable to resolve the dispute within 10 days after either party’s first written request for executive resolution, either party may proceed to litigation as stated in the next Section.

15. Governing Law and Jurisdiction. All disputes between the parties will be governed solely in accordance with the laws of the State of California, USA, excluding its conflicts of laws provisions. The parties each irrevocably submit to the personal and exclusive jurisdiction of the federal and state courts in San Diego County, California, USA. However, either party may obtain equitable remedies as stated in Section 18 in any jurisdiction. Subject to Section 9, the prevailing party in any litigation will have the right to be awarded reasonable attorney’s fees and costs.  The United Nationals Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

16. Notices. Any notice under this Agreement must be delivered in writing and will be considered received (a) when delivered (if delivered by hand), (b) upon confirmation of receipt, rejection or non-deliverability (if by registered mail, FedEx or other reputable courier) to the last known address of the other party, or (c) except notices of breach, by email transmission (provided no notice of failure of delivery or out of office message is received by the sender).

17. Entire Agreement. This Agreement embodies the entire contract between the parties pertaining to its subject matter and supersedes any and all prior or contemporaneous written or oral promises, agreements, or representations. All references to “including”, “such as”, and the like, are intended to be interpreted in the broadest sense and without limitation.

18. Equitable Relief. Licensee acknowledges that money damages may not be sufficient compensation for its breach of this Agreement, and that a breach will cause Persyst irreparable harm and damage. Therefore, as a nonexclusive remedy, Persyst will have the right to enforce this Agreement by temporary restraining order, injunction or other equitable relief, and will have the right to obtain such relief in any court of competent jurisdiction.

19. No Assignment. This Agreement, including the rights and obligations contained herein, may be transferred by Licensee only to a provider of Medical Services, and only with the prior signed written consent of an officer of Persyst, which will not be unreasonably withheld or delayed. If an assignment is made in violation of this section, it is a breach of this Agreement and void.

20. Force Majeure.  Persyst will not be liable for delays, inability to perform, or loss, damage, or destruction to the extent caused by any event or circumstance, regardless of whether foreseeable, that was not caused by Persyst (“Force Majeure Event”). Unless the Licensee knows, or reasonably should know of the Force Majeure Event, Persyst shall promptly notify Licensee of the occurrence of the Force Majeure Event, the effect on performance, and how long Persyst expects it to last.  During the Force Majeure Event, (a) Persyst shall use reasonable effort to limit damages to Licensee and to resume its performance under this Agreement and (b) Licensee shall continue to perform its obligations as stated in this Agreement, including making full and on-time payments for the benefit of Persyst.

21. Other Important Provisions. This Agreement (a) does not create any agency, partnership, employment or joint venture relationship; (b) cannot be amended except in writing signed by both parties; (c) except Epilog for purposes of Persyst ESI, is not for the benefit of any third party except it will inure to the benefit of and be binding on each party and its successors and permitted assigns; (d) is not subject to waiver of any rights by lapse of time or by any statement, unless signed by an authorized representative of the party, and a waiver of any breach of this Agreement will not constitute a waiver of any prior or subsequent breach; (e) will be construed as if drafted jointly by the parties with no presumption or burden of proof favoring or disfavoring as a result of authorship; and (f) will be construed as severable, so the court’s finding of any invalidity or unenforceability will not affect the validity or enforceability of any other portions of this Agreement.

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Persyst Software License, Services, and Prime Agreement
Appendix A
PERSYST ESI SERVICE LEVEL AGREEMENT

This Persyst ESI Service Level Agreement (“ESLA”) is included as part of the Persyst Software License with Prime Agreement (“License Agreement”) entered into between Persyst Development Corporation and the Licensee. Capitalized terms not defined here shall have the meaning stated in the License Agreement.

1. Scope of Services.  The following Services will be provided by Persyst or Epilog for Persyst ESI: (a) escalate, diagnose, and resolve issues in an appropriate and timely manner, including the allocation of a sufficient number of skilled staff and the collection of necessary information; (b) preventive maintenance of Persyst ESI, (c) network configurations, (d) remote diagnostics, (e) software patches, modifications, upgrades and updates, and (f) telephone and email support, with primary support to be provided by Persyst and secondary support to be provided, if directed by Persyst, by Epilog.

2. Privacy and Security. Data in electronic form that is provided by Licensee for storage or use in Persyst ESI (“Licensee Data”) will be processed, maintained, stored and protected according to the privacy and security requirements of Epilog’s Data Processing Policy at https://s3-eu-west-1.amazonaws.com/epilog.care/DataprocessingPolicy-ClinicalProducts.pdf. Licensee shall take all steps reasonably necessary to process, maintain, store and protect its Licensee Data and other highly confidential information consistent with applicable laws and regulations and best practices in the applicable medical industry. For U.S. Licensees, all Licensee data will be hosted and analyzed on servers located within the United States. Licensee Data will be stored for 3 years after the end of the Term unless Licensee requests Persyst in writing to store the data for a different period of time. To the extent feasible, all Licensee Data will be destroyed or returned to Licensee at the termination of the applicable storage period.

3. Availability.

3.1 Service Levels. As measured over the course of each calendar month, Persyst ESI will be available for Licensee’s access and use an average of 99.0% of the time, including availability for Licensee’s receipt of EEG and MRI results within 48 hours after Licensee uploads its applicable Licensee Data.

3.2 Exclusions. Section 3.1 will not apply to any of the following: (a) if a delay or prevention is caused by any event or circumstance beyond Persyst reasonable control, regardless of whether foreseeable; (b) scheduled maintenance, emergency maintenance, or upgrades of Persyst ESI; or (c) Licensee internet connectivity, Licensee error, or other problems caused by or originating with Licensee (including Users, subcontractors and other engaged or authorized by Licensee).

3.3 Service Credits. For each instance in any calendar month in which Persyst ESI is not available 99.0% of the time and Persyst ESI results are not available for Licensee’s download within 48 hours after the correct upload of Licensee’s EEG and MRI data to Persyst ESI, Licensee will have a credit to access and use Persyst ESI for one free patient case anytime during the one-year period immediately following the end of the Term. For this limited purpose only, the provisions of this ESLA will survive for one year after the end of the Term. Credits issued under this paragraph will apply to outstanding or future invoices only. Persyst is not required to issue refunds or to make payments against any credits under any circumstances.

4. Support Availability. Support will be provided to Licensee during Persyst’s regular business hours. Only Emergency Services will be provided outside regular business hours. “Emergency Services” mean server failure, Persyst ESI failure, and security or privacy breaches. Persyst will periodically provide Licensee with emergency email addresses and phone numbers for distribution to Licensee’s applicable personnel.

5. Service Responses. Persyst will respond to Licensee reported incidents and requests regarding Persyst ESI and Services within the time frames stated in the Table below. Resolution times will depend on the complexity and nature6 of the request, but Persyst shall use commercially reasonable efforts to resolve all problems.