Master Services Agreement

THIS AGREEMENT, including the Proposal which by this reference is incorporated herein (the “Agreement”) between VOXNEURO USA INC., a corporation existing under the laws of the State of Delaware (“VoxNeuro”), and the Client (as defined below).

BY ACCEPTING THIS AGREEMENT THROUGH (1) CHECKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING A PROPOSAL THAT REFERENCES THIS AGREEMENT, CLIENT AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT.

This Agreement was last updated on April 3, 2023. It is effective between VoxNeuro and Client as of the date of Client’s accepting this Agreement (the “Effective Date”).

WHEREAS:

A. VoxNeuro is a healthcare technology service provider that provides training and support to clients to run proprietary electroencephalography (“EEG”) assessments (the “VoxNeuro Assessment”), and to use the Cognitive Health Assessment Management Platform (“CHAMP”), a proprietary medical software that generates patient reports; and

B. Client wishes to retain the services of VoxNeuro, and VoxNeuro wishes to provide such services pursuant to the terms and conditions of this Agreement;

NOW THEREFORE the Parties agree as follows:

1. Definitions.

Throughout this Agreement, the following terms shall have the following corresponding meanings:

“Agreement”, “this Agreement”, “the Agreement”, “hereof”, “herein”, “hereto”, “hereby”, “hereunder” and similar expressions mean this Master Services Agreement dated the date hereof between the Parties, including all schedules and exhibits and all instruments amending or restating this Agreement. All references to “Articles”, “Exhibits”, “Sections” and “Schedules” mean and refer to the specified article, exhibit, section and schedule of this Agreement.

“Authorized Users” means Client’s employees, consultants, contractors, and agents (a) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.

“Business Day” means any day which is not a Saturday, a Sunday or a day observed as a statutory or civic holiday under the laws of the State of New York or the United States of America applicable in the State of New York, on which the principal American chartered banks in the City of New York, New York are open for business.

“Client” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and affiliates of that company or entity (for so long as they remain affiliates) which have entered into the Proposal.

“Party” means VoxNeuro or the Client and “Parties” means both of them.

“Patient” means an individual who the Client deems is in need of or would benefit from a VoxNeuro Assessment.

“Person” means any individual, sole proprietorship, limited or unlimited liability corporation, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, body corporate, joint venture, trust, pension fund, union, governmental authority, and a natural person including in such person’s capacity as trustee, heir, beneficiary, executor, administrator or other legal representative.

“Proposal” means the VoxNeuro CORE agreement filled out and submitted by or on behalf of VoxNeuro, and accepted by Client, for Client’s engagement of VoxNeuro’s services under this Agreement, including any addenda and supplements thereto.

“Protected Health Information” means a Patient’s individually identifiable health information and shall have the same meaning as that term is used under 45 CFR 160.103 of the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time.

2. Rules of Interpretation

In this Agreement:

(a) Time – Time is of the essence in and of this Agreement.
(b) Calculation of Time – Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends. Where the last day of any such time period is not a Business Day, such time period shall be extended to the next Business Day following the day on which it would otherwise end.
(c) Business Days – Whenever any action to be taken or payment to be made pursuant to this Agreement would otherwise be required to be made on a day that is not a Business Day, such action shall be taken or such payment shall be made on the first Business Day following such day.
(d) Currency – Unless otherwise specified, all references to amounts of money in this Agreement refer to the lawful currency of the United States of America.
(e) Headings – The descriptive headings preceding Sections of this Agreement are inserted solely for convenience of reference and are not intended as complete or accurate descriptions of the content of such Sections. The division of this Agreement into Sections shall not affect the interpretation of this Agreement.
(f) Including – Where the word “including” or “includes” is used in this Agreement, it means “including without limitation” or “includes without limitation”.
(g) Plurals and Gender – The use of words in the singular or plural, or referring to a particular gender, shall not limit the scope or exclude the application of any provision of this Agreement to such persons or circumstances as the context otherwise permits.

3. Entire Agreement

This Agreement together with the schedules and exhibits hereto and the agreements and other documents to be delivered pursuant to this Agreement, constitute the entire agreement between the Parties pertaining to the subject matter of this Agreement and supersede all prior agreements, understandings, negotiations and discussions, whether oral, written or otherwise, of the Parties. No supplement, modification, amendment, waiver or termination of this Agreement shall be binding unless executed in writing by the Party to be bound thereby.

4. Engagement

Subject to the provisions of this Agreement, VoxNeuro shall be engaged by the Client as an independent contractor. VoxNeuro shall provide services to the Client which shall include those services described in Schedule A attached hereto (collectively, the “Services”) in a manner consistent with the industry standards and in accordance with all policies, rules and regulations of VoxNeuro.

5. Disclaimer of Warranties

EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 4 ABOVE, VOXNEURO MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OR CONDITION OF MERCHANTABILITY; OR (B) WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OF TRADE OR OTHERWISE.

6. Changes

Any change to the scope of the Services defined in this Agreement must be initiated through a written change request, mutually-agreed in accordance with the following procedure:

(a) Either Party may at any time request in writing (each a “Change Request”) that the other Party make or permit changes to the Services including additions, changes, and suspension of any or all of the Services (each a “Change”).
(b) Upon receipt of a Change Request from the Client, VoxNeuro will evaluate and assess the Change Request within five (5) Business Days of receipt. Following such evaluation and assessment, VoxNeuro shall prepare an estimate describing the cost or savings resulting from the Change and the expected effect thereof on then-current Services (a “Change Estimate”).
(c) Once VoxNeuro has prepared the Change Estimate in respect of a Change Request, VoxNeuro shall provide a copy thereof in writing to the Client for assessment and approval. The Client shall have a period of ten (10) Business Days (or such longer period as may be defined in the Change Estimate), in which to notify VoxNeuro in writing of its approval of the Change Estimate and its agreement to proceed with the Change.
(d) Upon receipt of such written approval by the Client, the parties shall, acting reasonably, negotiate the details of the Change and execute a written amendment and/or work order to the Agreement (a “Change Order”).

7. Other Obligations

(a) Client shall:

(i) accept the terms of and enter into a Business Associate Agreement dated as of the Effective Date by and among Client, VoxNeuro, and VoxNeuro Inc. available at https://docs.voxneuro.com/legal/business-associate-agreement/, as may be updated from time to time;
(ii) obtain the prior consent of a Patient prior to performing the VoxNeuro Assessment on such Patient;
(iii) perform the VoxNeuro Assessment pursuant to the training in the VoxNeuro Certification Program and pursuant to any further or updated directions issued by VoxNeuro to Client from time to time;
(iv) upon completion of a VoxNeuro Assessment, provide to VoxNeuro: (1) a properly completed requisition with the Patient’s Protected Health Information and, to the extent applicable, other Client data, (2) confirmation of consent from the Patient to share their information with VoxNeuro and its affiliates and to anonymize that Protected Health Information and conduct internal research for the purposes of monitoring, assessing, and improving the VoxNeuro Assessment and CHAMP technology, and (3) valid EEG data obtained by Client for the particular Patient during the VoxNeuro Assessment;
(v) comply with the requirements set forth in Schedule B and any End User License Agreement between the Parties with respect to CHAMP;
(vi) comply with the VoxNeuro Software License Terms: Cognitive Health Assessment Management Platform™;
(vii) not rent, lease, sell, sublicense, assign, distribute, transfer, or make available to any unauthorized user or third party, copy, modify, or create derivative works or improvements to the Services, VoxNeuro Certification Program, VoxNeuro Assessment technology, CHAMP, any other software or technology owned by VoxNeuro or its affiliates, or the reports generated and provided by VoxNeuro under this Agreement;
(viii) not reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the VoxNeuro Certification Program, VoxNeuro Assessment technology, CHAMP, or any other software or technology owned by VoxNeuro or its affiliates;
(ix) not bypass or breach any security device or protection used by the Services, VoxNeuro Certification Program, VoxNeuro Assessment technology, CHAMP, any other software or technology owned by VoxNeuro or its affiliates, or the reports generated and provided by VoxNeuro under this Agreement other than through the use of a then valid user name, identification number, password, security key or token, PIN, or other security code used, alone or in combination, to verify an individual’s identity and authorization to gain such access in accordance with the provisions of this Agreement; and
(x) not input, upload, transmit, or otherwise provide to or through the Services, VoxNeuro Certification Program, VoxNeuro Assessment technology, CHAMP, or any other software or technology owned by VoxNeuro or its affiliates, any information or materials that: (1) contain, transmit or activate any technology, device, or means, including any virus, worm, malware, or other malicious computer code, (2) are unlawful, abusive, malicious, harassing, tortious, defamatory, or libelous, or (3) infringe upon or violate the rights of any third party.

8. Term

The engagement of VoxNeuro shall commence on the Effective Date and shall continue for one (1) year (the “Initial Term”), subject to earlier termination in accordance with Section 13. This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least one-hundred twenty (120) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term“).

9. Fees

a. Client shall pay VoxNeuro the fees (the “Fees”) as set forth in the Proposal without offset or deduction. Client shall reimburse VoxNeuro for all reasonable travel and out-of-pocket expenses incurred by VoxNeuro in connection with the performance of the Services, within thirty (30) days of receipt by the Client of an invoice from VoxNeuro accompanied by receipts and reasonable supporting documentation. Client shall be responsible for all goods and services, harmonized sale, sales, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, provincial, territorial, or local governmental entity or regulatory authority on any amounts payable by Client hereunder; provided that in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, VoxNeuro’s income, revenues, gross receipts, personnel, or real or personal property, or other assets. Except for invoiced payments that the Client has successfully disputed, all late payments shall bear interest at the lesser of the rate of ten percent (10%) per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition to all other remedies available under this Agreement or at law (which VoxNeuro does not waive by the exercise of any rights hereunder), VoxNeuro shall be entitled to suspend the provision of any Services if Client fails to pay any undisputed amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof. VoxNeuro may increase the Fees no more than once per Renewal Term by providing written notice to Client at least sixty (60) calendar days before the commencement of such Renewal Term, and the Proposal will be deemed amended accordingly.

10. Non-Disclosure

(a) All non-public, confidential, or proprietary information of each Party, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information“), disclosed by such Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by the Receiving Party without the prior written consent of the Disclosing Party. Confidential Information does not include information that is:
(i) in the public domain;
(ii) known to the Receiving Party at the time of disclosure; or
(iii) rightfully obtained by the Receiving Party on a non-confidential basis from a third party.
(b) Each Party agrees to use the Confidential Information only to make use of or provide the Services, as applicable.
(c) Each Party shall be entitled to injunctive relief for any violation of this Section 10.

11. Intellectual Property

(a) Any intellectual property, including but not limited to patents, works (including report templates), know-how, trade secrets, and trade-marks (including trade names and service marks), which is owned by a Party or its affiliates prior to the Effective Date or subsequently developed by a Party or its affiliates (“Pre-Existing Materials”) shall remain that Party or affiliate’s exclusive property and shall not become the property of the other Party unless mutually agreed by the Parties in writing.
(b) Except as provided otherwise herein, all rights, title and interest in and to the deliverables to be created, developed, produced or acquired by or on behalf of VoxNeuro specifically for the Client, as identified in this Agreement (“Customized Deliverables”) shall vest with the Client upon complete payment of the Customized Deliverables by the Client.
(c) If, as a result of the Services or the creation, development, or production of the Customized Deliverables, VoxNeuro provides the Client with VoxNeuro’s proprietary intellectual property including without limitation, information, frameworks, methodologies, tools, interfaces, processes, techniques and know-how or documentation, owned or licensed by VoxNeuro prior to the commencement of such Services or otherwise forming part of VoxNeuro’s Pre-Existing Materials, including all custom developments, all fixes, enhancements or derivative works made therefrom, or changes thereto, all copies thereof and all intellectual property rights therein, (hereinafter referred to as “VoxNeuro’s Intellectual Property”), then such VoxNeuro’s Intellectual Property will remain the exclusive property of VoxNeuro.
(d) If Services or Customized Deliverables provided hereunder contain such VoxNeuro’s Intellectual Property, VoxNeuro grants the Client a fully paid-up, non-exclusive, perpetual, non-transferable license to use VoxNeuro’s Intellectual Property in respect of the Client’s Customized Deliverables for its internal purposes. There shall be no license or royalty cost to the Client beyond Fees.
(e) Notwithstanding the foregoing, to the extent that Services or Customized Deliverables are provided in respect of products or services made commercially available by VoxNeuro, such Services or Customized Deliverables shall be deemed VoxNeuro’s Intellectual Property pursuant to Section 11(a) above, and subject to the terms and conditions of VoxNeuro’s standard license or other agreement for such products or services.
(f) A license, having the same attributes as those stated above, is also granted by Client to VoxNeuro, VoxNeuro’s affiliates and pre-authorized representatives, for any Client Pre-Existing Materials, Customized Deliverables or other proprietary information required in the performance of VoxNeuro’s obligations under this Agreement.

12. Independent Contractor Relationship

The Parties intend that the relationship between them pursuant to this Agreement will be at all times an independent contractor relationship relating solely to the provision of the Services of VoxNeuro described herein, and that no agency, employment, joint venture or partnership is created by this Agreement. No Party shall make any representations tending to create an agency, employment, joint venture or partnership with the other Party as they relate to the subject matter of this Agreement.

13. Termination

(a) In addition to any other express termination right set forth in this Agreement:
(i) VoxNeuro may terminate this Agreement, effective on written notice to Client, if Client fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after VoxNeuro’s delivery of written notice thereof;
(ii) either Party may terminate this Agreement without cause by providing written notice to the other Party within ninety (90) days of the Effective Date, such termination to be effective thirty (30) days after such notice is given and received;
(iiI) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iv) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(b) Upon the termination of this Agreement the Client shall immediately cease using and deliver to VoxNeuro or, at the option of VoxNeuro, destroy, all equipment, software and programs, reports, books, documents, manuals, effects, money, securities or other property belonging to VoxNeuro or for which VoxNeuro is liable to others, which are in the possession, charge, control or custody of the Client.

14. Indemnity

Each Party (the “Indemnifying Party”) shall indemnify and hold the other Party and its affiliates and each of their respective officers, directors, shareholders, employees, agents and representatives (collectively, “Indemnified Parties”) harmless from and against any and all claims, demands, actions, causes of action, judgments, damages, losses, liabilities, costs and expenses (including without limitation, reasonable legal fees, interest, penalties and fines related thereto) which may be made against any of the Indemnified Parties or which any one or more of them may suffer or incur as a result of, arising out of or relating to:

(a) any breach, non-performance of or non-compliance with any covenant, representation, warranty or obligation of the Indemnifying Party pursuant to this Agreement;
(b) any negligence or willful misconduct of the Indemnifying Party;
(c) the failure of the Indemnifying Party to comply with any applicable laws.

15. Limitation of Liability

NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AGENTS OR SUBCONTRACTORS BE LIABLE UNDER THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST PROFITS, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO VOXNEURO PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

16. Provisions which Operate Following Termination

Notwithstanding the termination of this Agreement for any reason whatsoever, the provisions of Sections 10 to 15 of this Agreement and any other provisions of this Agreement necessary to give effect thereto shall survive continue in full force and effect following such termination.

17. Insurance

(a) Each Party shall maintain insurance coverage in amounts and types standard and adequate for its business and shall promptly provide copies of the certificates of insurance evidencing such insurance coverage to the other Party upon request.
(b) Client’s insurance certificates and policies shall provide that the insurance is in full force and effect, name VoxNeuro and VoxNeuro Inc. as additional insureds, and provide that such insurance shall not be cancelled without thirty (30) days prior written notice to VoxNeuro. The amount of all such coverage shall be primary to, and receive no contribution from, any other insurance or self-insurance programs maintained by or on behalf of or benefiting VoxNeuro or VoxNeuro Inc. THE LIMITS AND COVERAGE OF THE INSURANCE OBTAINED BY CLIENT SHALL IN NO WAY LIMIT ITS LIABILITIES OR OBLIGATIONS UNDER THIS AGREEMENT. All insurance policies CLIENT maintains shall be endorsed to provide that underwriters and insurance companies shall not have any right of subrogation against VoxNeuro, VoxNeuro Inc., or their respective underwriters and insurance companies.

18. Notices

All notices, requests, demands or other communications required or permitted to be given by one Party to another under this Agreement (each, a “Notice”) shall be given in writing and delivered by personal delivery or delivery by recognized national courier, sent by facsimile transmission or delivered by registered mail, postage prepaid, or by electronic communication (including email but excluding Internet or intranet websites) addressed as follows:

(a) If to VoxNeuro:
- One Broadway, 14th Floor
- Kendall Square
- Cambridge, MA 02142
- Attention: Jason Flowerday, Chief Executive Officer
- E-mail: [email protected]
(b) If to the Client, at the address specified in the Proposal.

or at such other address or facsimile number or email address at which the addressee may from time to time notify the addressor. Any Notice delivered by personal delivery or by courier to the Party to whom it is addressed as provided above shall be deemed to have been given and received on the day it is so delivered at such address. If such day is not a Business Day, or if the Notice is received after 4:00 p.m. (addressee’s local time), then the Notice shall be deemed to have been given and received on the next Business Day. Any Notice sent by prepaid registered mail shall be deemed to have been given and received on the fourth Business Day following the date of its mailing. Any Notice transmitted by facsimile shall be deemed to have been given and received on the day in which transmission is confirmed. If such day is not a Business Day or if the facsimile transmission is received after 4:00 p.m. (addressee’s local time), then the Notice shall be deemed to have been given and received on the first Business Day after its transmission. Notices sent to an email address shall be deemed to be received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement), provided that if such Notice is not sent on a Business Day or is sent after 4:00 p.m. (addressee’s local time) on a Business Day, such Notice shall be deemed to have been given and received on the first Business Day after its transmission.

19. Applicable Law and Attornment

This Agreement shall be construed in accordance with the laws of the State of Delaware and the laws of the United States of America applicable therein and shall be treated, in all respects, as a Delaware contract.

Each of the Parties hereby irrevocably consents and agrees that it shall bring any action, suit or proceeding with respect to any matter arising under or relating to this Agreement or the subject matter hereof or thereof in the courts of the State of New York, in the City of New York.

20. Further Assurances

Each Party shall provide such further documents or instruments required by any other Party as may be reasonably necessary or desirable to effect the purpose of this Agreement and carry out its provisions.

21. Force Majeure

In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

22. Waiver

Except as otherwise expressly set out herein, no waiver of any provision of this Agreement shall be binding unless it is in writing. No indulgence, forbearance or other accommodation by a Party shall constitute a waiver of such Party’s right to insist on performance in full and in a timely manner of all covenants in this Agreement or in any document delivered pursuant to this Agreement. Waiver of any provision shall not be deemed to waive the same provision thereafter, or any other provision of this Agreement at any time.

23. Severability

If any provision of this Agreement or portion thereof or the application thereof to any Person or circumstance shall to any extent be illegal, invalid or unenforceable: (a) the remainder of this Agreement or the application of such provision or portion thereof to any other Person or circumstance shall not be affected thereby; and (b) the Parties will negotiate in good faith to amend this Agreement to implement the intentions set forth in this Agreement. Each provision of this Agreement shall be legal, valid and enforceable to the fullest extent permitted by law.

24. Assignment and Enurement

The Client shall not assign, transfer, pledge, or otherwise in any way, any of the Client’s obligations or rights under this Agreement to any third party without the prior written consent of VoxNeuro. VoxNeuro may, after giving prior written notice to the Client, assign any of its rights or obligations under this Agreement, provided that the assignee undertakes in writing to be bound by VoxNeuro’s obligations under this agreement. Subject to the foregoing, this Agreement shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns hereunder.

SCHEDULE A – SERVICES

VoxNeuro will directly or through one of its certified partners provide the following services to Client:

1. training onsite for up to two (2) days, for up to three (3) Client staff members, through the VoxNeuro Certification Program, on how to perform the EEG and related data collection portion of the assessment on Patients;
2. training to Client staff, through the VoxNeuro Certification Program, on how to use CHAMP in conjunction with a VoxNeuro Assessment to generate patient reports;
3. when applicable, delivery and set-up of equipment and software designated and/or supplied by VoxNeuro, whether purchased or leased by Client from VoxNeuro or other Persons or whether provided at no cost by VoxNeuro, as set forth in Schedule C;
4. when applicable, integration of equipment and software designated by VoxNeuro;
5. a Product Supplier Resource Sheet containing a listing of any one-time use items required to run the VoxNeuro Assessment;
6. for each Patient that is to undergo a VoxNeuro Assessment, upon receipt from Client of:
a. confirmation of consent from the Patient to share their information with VoxNeuro;
b. a properly completed requisition with the Patient’s Protected Health Information and, to the extent applicable, other Client data; and
c. valid EEG data obtained by Client for the particular Patient during the VoxNeuro Assessment; delivery of a VoxNeuro Assessment report addressed to Client for that particular Patient.
7. when applicable and to the extent requested by Client, VoxNeuro or one of its certified partners will provide Client with up to three (3) hours of consulting services per month to recommend a reimbursement strategy. This will include VoxNeuro examining Client’s reimbursement guidelines and billing practices and using VoxNeuro’s commercially reasonable efforts to recommend CPT codes and medical necessity templates, claim submittal/resubmittal and a billing audit, all which review shall be facilitated through access to the Client’s electronic medical records system.
8. Ongoing software maintenance and services with such service levels set forth in Exhibit A.

Upon receipt of equipment in Schedule C by Client, VoxNeuro will:

1. provide all equipment in Schedule C with identification labels;
2. trouble-shoot any hardware or software related issues to the extent of replacing any hardware / software components as reasonably deemed necessary by VoxNeuro; and
3. use commercially reasonable efforts to secure any computer system provided by VoxNeuro from unauthorized access with current operating system, computer software, and anti-virus software installed.

EXHIBIT A – MAINTENANCE AND SUPPORT SERVICES

Standard Maintenance and Support Services apply to VoxNeuro provided Software, Product and Custom Application Programs. Hardware support is available for an additional fee. In addition to the coverage options, VoxNeuro offers cost effective and convenient prepayment options. The prepayment program provides price protection and discounts off of the yearly maintenance costs.

Support Description	Live-Service Support	Self-Service Support
Helpline Support: Telephone support from VoxNeuro experts, escalation to systems experts (operating system, host, telephony, etc.) and to VoxNeuro R&D if needed.	● 24 x 7 x 365 availability ● Initial work begins within 2 hours of incident reported	● 24 x 7 x 365 availability ● Initial work begins within 2 hours of incident reported
Software Upgrades: Major software releases including new features and functionality. Additional costs for upgrades may include third party software and additional hardware.	● Software free of charge ● Installation, Labor and Coordination requirements handled by the MAC Group at prevailing rates ● After hour rates may apply	● Software free of charge ● Installation, Labor and Coordination requirements handled by the MAC Group at prevailing rates ● After hour rates may apply
Software Updates: Enabled new features and/or functionality associated with Software updates/upgrades are not included in the Maintenance and Support Services offerings and are chargeable to the Customer. Additional costs for upgrades may include third party software and additional hardware.	● Software free of charge ● Remote Installation free of charge ● On-Site installation support is billable, 2 day minimum ● After hour rates may apply	● Software free of charge ● Remote installation free of charge ● On-Site installation support is billable, 2 day minimum ● After hour rates may apply
Customized Application Support: VoxNeuro will fix scenarios where the custom application is not performing as described in the final specification. Any changes to the application that affect the final specification will be billable at the standard rates.	● N/A	● Application not performing to Functional Specification fixed free of charge ● Any changes from Functional Specification are billable at standard rates
Hardware Support: VoxNeuro will provide maintenance support on hardware purchased from VoxNeuro or a certified reseller.	● by On-site with parts within 24 hours of problem determination (subject to manufacturers parts availability)	● On-site with parts within 24 hours of problem determination (subject to manufacturers parts availability)
Billable Support: Helpdesk support that falls outside the standard support terms will be billable at specified rates.	● Standard hourly rate with 1 hour minimum	● Standard hourly rate with 1 hour minimum
MAC Support: Moves Adds and Changes department performs Custom Application changes and sale of additional Software licenses, hardware, etc.	● Standard hourly rate with 2 hour minimum ● Standard hourly rate x 1.5 with 2 hour minimum	● Standard hourly rate with 2 hour minimum ● Standard hourly rate x 1.5 with 2 hour minimum

SCHEDULE B – CHAMP

Intended Use:

CHAMP is a Computerized Cognitive Assessment Aid, a software device that uses neurophysiological output values from a battery of cognitive tasks that are generated during a VoxNeuro Assessment to provide an interpretation of cognitive function.

Indications for Use:

CHAMP is indicated as an adjunctive tool for evaluating cognitive function, including memory, information processing, attention and concentration, in individuals aged 12-90 years of age on a single occasion or over periodic assessments. Results should be interpreted only by qualified healthcare professionals.

Warnings:

CHAMP is not a standalone diagnostic device.

CHAMP is not intended to be used to identify the presence or absence of clinical diagnosis.

SCHEDULE C – EQUIPMENT LIST (EXAMPLE)

ITEM	DESCRIPTION / SPECS	QUANTITY
VN Configured MEB-2300 Evoked Potential Acquisition System	Includes computer, ERP acquisition and analysis software, and system accessories	1
12 Channel input box	EEG Electrode Input box for for MEB-2300	1
Input Box Arm	Arm for JB-206/-212/-116B/-132B	1
System Cart	Neatly holds MEB, PC, and accessory equipment	1
Event Related Potentials	Event Related Potentials	1
Multi-Interface Box	Instantaneously marks stimuli for EEG acquisition/analysis software	1
A/ER3-10ABR Ear Inserts	Earphones specific to the AEP tests	1
Double-Backed Free-standing electrodes (5/pk)	Shielded electrodes, ST/5	4
Dell Computer	STIM Configured Computer	1
Dell Monitor	24” Monitor	1
Headphones	Etymotic Headphones (ER-3C)	1
Presentation Subscription	User license to cognitive testing, stimulus delivery software	1
Hosa Stereo Cable	Hosa Stereo Breakout Cable	1

CONSUMABLES	DESCRIPTION / SPECS	QUANTITY
Earbuds	Disposable earbuds (50-pk)	3
Electrode Gel	Electrode Gel (4oz-tubes)	4
Electrode Paste	Electrode Paste (8oz jar)	2
Cleaning Solution	Multi Purpose Medical Equipment Cleaning Solution (1 gallon)	1