Last Updated: Jan 02, 2022

These Master Terms and Conditions (together with applicable Services Attachments as hereinafter defined, this “Agreement”) are entered into by and between CerebrumEdge Tech Pvt Ltd, and the person (in an individual capacity or on behalf of a company or other entity) accessing this page and that will be using CerebrumEdge proprietary information technology solutions, applications, and/or other services (“Customer”). CerebrumEdge provides, and/or offers via hosted services through one or more third-party hosting provider(s), certain services including, but not limited to, the upload and processing of videos and/or the entry/upload of other data for the purposes of ergonomic assessments, assessing risk of injury, and activity modification, among others. The service and platform is provided to Customer, under the brand name of "ErgoEdge".

This Agreement defines the terms and conditions under which CerebrumEdge has agreed to provide to Customer access to the ErgoEdge Platform and certain Services .

The scope, specific nature, and term (“Term”) of the Services with respect to Customer is defined by and in: (i) the contents of CerebrumEdge-issued documentation in connection with this Agreement, including but not limited to invoices, Subscription Fee orders, purchase orders, etc. (“Services Attachments”); and (ii) Customer’s choices made in the course of registering, selecting and submitting payment for Services. Services Attachments may also specify limitations on Customer’s use of the Services and/or CerebrumEdge Platform (e.g., limitation on the size and number of videos allowed to be processed). In the event of any conflict between these Master Terms and Conditions and a Services Attachment, these Master Terms and Conditions will control.

DEFINITIONS

“Affiliated Entities” means those entities that are or become controlled, either directly or indirectly by Customer but only so long as such entity remains controlled by Customer and excluding any entity that becomes controlled by Customer following the acquisition of beneficial ownership by one or more related persons of more than 50% of Customer’s voting securities or following a sale, merger consolidation or other transfer of all or substantially all of Customer’s business.
“Customer Data” means all videos, video metadata, and other content or data uploaded, submitted, or otherwise submitted to CerebrumEdge by Customer via ErgoEdge Web or Mobile Apps.
“Documentation” means the manuals and all other documentation and materials, in electronic form or otherwise, relating to the ErgoEdge that are provided by CerebrumEdge to Customer.
“Equipment” means a single computer or server onto which the CerebrumEdge Assets will be installed.
“Intellectual Property Rights” means copyrights, trademarks, service marks, trade names, trade dress, designs, trade secrets, patents, patent applications, inventions, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world.
“CerebrumEdge Custom Content” means all Customer Data that has been processed by CerebrumEdge and modified to add certain CerebrumEdge proprietary coding, metadata, information and other content to provide analytics and insights for the purposes of ergonomic assessments, assessing risk of injury, and activity modification, among others.
“CerebrumEdge IP” means: (i) all data, content and materials that are owned, generated, collected or developed by CerebrumEdge, or licensed to CerebrumEdge prior to the term of this Agreement or during the term of this Agreement independently of Customer and this Agreement, including data that can be processed and used via the CerebrumEdge Assets; (ii) the Services; (iii) the CerebrumEdge Assets; (iv) all works of authorship, programs, code, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, business, templates, documents, materials, technology, trademarks, software, source code, website(s), modifications, updates, upgrades, enhancements and concepts (“Works”), any of which existed prior to the Effective Date of this Agreement, whether created by or for CerebrumEdge; (v) any and all Works that are developed by CerebrumEdge, jointly by Customer and CerebrumEdge, or by Customer during the performance of the Services; (vi) all CerebrumEdge Custom Content, and (vii) all Works derived from the foregoing.
“ErgoEdge Software” means a single copy of the "ErgoEdge" Software in executable object code as and to the extent provided to Customer pursuant to a valid Services Attachment and licensed to Customer subject to the Terms and Conditions of this Agreement, together with the Documentation so provided, and any Software Upgrades obtained by Customer pursuant to this Agreement.
“Non-Identified Data” means aggregate data and non-identifiable data resulting from Customer’s use of the Services and/or ErgoEdge.
“Software Upgrades” means all updates, upgrades, corrections, bug fixes, releases, improvements or enhancements made to the ErgoEdge Software in object code format only and made available generally to other licensees of the CerebrumEdge Software.

LICENSE GRANT & LIMITATIONS:

Subject to Customer’s compliance with all of the terms and conditions of the Agreement, CerebrumEdge hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, license to use ErgoEdge Platform (the “ErgoEdge Software”) and the Documentation as installed on the Equipment (the “Customer Rights”). The ErgoEdge Software and Documentation shall not be used in any other manner or for any other purpose during the Term of this Agreement. As used herein:
Subject to the terms of this Agreement, CerebrumEdge shall provide Customer with Software Upgrades and the Documentation therefor, when such Software Upgrades and Documentation are completed and generally available to CerebrumEdge's customers. CerebrumEdge will provide assistance, support and maintenance services to Customer as prescribed in this Agreement, but the following important responsibilities belong to Customer:

Assign a coordinator to be available to CerebrumEdge when CerebrumEdge assists with troubleshooting of the ErgoEdge Software and Software Upgrades, and to observe and review on-going operability of the ErgoEdge Software and Software Upgrades. The coordinator must have the authority to make decisions regarding the repair;
Promptly report problems to CerebrumEdge;
Test all functionality of the ErgoEdge Software and Software Upgrades, to verify that it is functioning properly;
Provide all data necessary for CerebrumEdge to troubleshoot the ErgoEdge Software and the Software Upgrades; and
Assist CerebrumEdge with respect to the ErgoEdge Software when instructed by CerebrumEdge support personnel.

Scope and Restrictions. The Customer Rights granted to Customer by CerebrumEdge pursuant to this Agreement are non-exclusive such that CerebrumEdge may grant to others or reserve for CerebrumEdge's own use, rights that are the same as or similar to those CerebrumEdge grants to Customer.

This Agreement is personal to Customer, may be used only for Customer’s internal operations and is non-transferable, non-assignable (other than as set forth below) and non-sublicense able; provided, however that with the prior written approval of CerebrumEdge, Customer may allow use of the Services consistent with the restrictions of this Agreement by its Affiliated Entities. Customer shall (a) be responsible for its authorized individual end users’ and Affiliated Entities’ compliance with this Agreement, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, the CerebrumEdge Platform, and the ErgoEdge Software, and notify CerebrumEdge promptly of any such unauthorized access or use, and (c) use the Services, the CerebrumEdge Platform, and the ErgoEdge Software only in accordance with this Agreement and applicable laws and government regulations. Customer may not allow any third party (other than Affiliated Entities) to access the Services, the CerebrumEdge Platform, or the ErgoEdge Software without CerebrumEdge's prior written consent.
Customer shall not license, rent, sell, loan, lease, pledge, offer as security, transfer or assign the IP, or any of the Customer Rights, to any other person, or use the Services, the CerebrumEdge Platform, or the ErgoEdge Software to directly or indirectly provide a time-sharing or subscription service to any third party or to function as a service bureau or application service provider or otherwise use any CerebrumEdge IP for any commercial purpose or on behalf of any third party . Without limiting the foregoing, Customer will retain all responsibility for the acts and omissions of Customer employees and any related or unrelated party Customer allows to access or use the Services, the CerebrumEdge Platform, or the CerebrumEdge Assets or who is otherwise under Customer’s reasonable control.
Customer shall not: (i) alter, suppress, remove or destroy any proprietary rights marks, notices, credits or legends in, on or displayed through the CerebrumEdge Platform or the ErgoEdge Software, including any authorized copies; (ii) modify, enhance, adapt, translate, or create derivative works of the ErgoEdge Software; (iii) transfer, distribute, assign, sublicense (other than to individual end users), rent, lease, export or sell the CerebrumEdge Platform or ErgoEdge Software; (iv) decompile, decrypt, disassemble, or reverse engineer the CerebrumEdge Platform or the ErgoEdge Software or otherwise attempt to discover the source code or structure, sequence and organization of the CerebrumEdge Platform or ErgoEdge Software; (v) make copies of the ErgoEdge Software other than a single copy for archival, testing, or backup purposes, (vi) develop, produce, make, market, offer for sale, sell, import or distribute any applications, products, systems or services that assists or enables ergonomic assessments, assessments of risk of injury, and activity modification; (vii) license to any third parties any (A) patents, (B) software, including without limitation, any source code, executable code, or object code, (C) technology or (D) any other intellectual property, for use in any applications, products, systems or services identified in subsection (vi); (viii) use any information obtained from the Services, the CerebrumEdge Platform or the ErgoEdge Software in furtherance of the activities described in subsection (vi), either on its own account or for any other person, firm, company, government or entity, directly or indirectly (whether as a stockholder, partner, lender, consultant, agent, supplier, distributor or in any other relationship or capacity), or disclose any of that information to any third party; or (ix) export, re-export, transfer, or otherwise make available, whether directly or indirectly, any regulated item or information to anyone outside the country in connection with this Agreement without first complying with all export control laws and regulations and those of any country within whose jurisdiction Customer operates or does business.

Customer Data.

Customer shall possess and retain all rights, title and interest in and to Customer Data. Customer is and shall be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data. Customer represents and warrants that: (i) the Customer Data does not and will not infringe on, violate or misappropriate any valid and enforceable Intellectual Property Rights of any third party; (ii) the Customer Data does not and will not contain any personally identifiable information (it being acknowledged that the CerebrumEdge Assets allow Customer to obscure the identity of any human subject therein) or any content that is offensive, vulgar, obscene or illegal; and (iii) with respect to any third party data, content and materials contained therein or otherwise delivered to CerebrumEdge by Customer, Customer has obtained the right to (x) use the same as set forth and in compliance with this Agreement and (y) grant CerebrumEdge the use of and rights to such materials as set forth in this Agreement such that CerebrumEdge’s use thereof in compliance with this Agreement will not infringe the Intellectual Property Rights of any third party.
Customer grants to CerebrumEdge a worldwide, non-exclusive, fully paid up, royalty free license to use, reproduce, distribute and prepare derivatives of the Customer Data for purposes of performing the Services and creating CerebrumEdge Custom Content. Except as otherwise expressly allowed in this Agreement, CerebrumEdge shall not use, distribute, sell, sublicense or disclose any Customer Data, other than as included in the CerebrumEdge Custom Content without written authorization of Customer. Notwithstanding the foregoing, CerebrumEdge will have the right to collect and use Non-Identified Data, and Customer agrees to grant and hereby grants to CerebrumEdge a worldwide, fully paid up, royalty free, perpetual, irrevocable, non-exclusive license to any and all Non-Identified Data for any and all purposes, including, without limitation, the right to use, sell, offer for sale, import, export, copy, reproduce, publicly perform, display, and create derivative works based on such Non-Identified Data.
Subject to the terms and restrictions in Section 6, Customer Data will be deleted upon termination of the Service; during the Services, Customer has the ability to delete any and all of the Customer Data. Notwithstanding the foregoing, CerebrumEdge may disclose Customer Data as required by applicable law or by proper legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise contest such required disclosure, at Customer’s expense.

Audit. CerebrumEdge may audit Customer’s use of the Services and/or CerebrumEdge Assets to confirm Customer’s compliance with this Agreement. CerebrumEdge shall pay its expenses in conducting any audit unless such audit or inspection reveals a breach by Customer under this Agreement. Any such audit will be conducted during regular business hours at Customer’s facilities and will not unreasonably interfere with Customer’s business activities. Customer shall cooperate with CerebrumEdge in such audit, and provide reasonable assistance and access to information.

SUSPENSION OR MODIFICATION OF SERVICE.

CerebrumEdge may modify the Services at any time, with or without prior notice to Customer and Customer agrees that CerebrumEdge shall not be liable to Customer or any third party for any such modifications. Customer agrees that the Services may be inaccessible from time to time to permit CerebrumEdge’s maintenance operations and to deliver enhancements to the Services. CerebrumEdge shall endeavour to provide notice of such activities, however, CerebrumEdge provides no assurance that Customer will receive advance notification or that the Services will be uninterrupted or error-free.
CUSTOMER AGREES THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SERVICES, INCLUDING CUSTOMER NETWORKS, OR TO TRANSMIT INFORMATION, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOFTWARE. CEREBRUMEDGE SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF CUSTOMER’S ACCESS TO OR USE OF THE SERVICES OR THE IMPACT SUCH INTERFERENCE OR PREVENTION MAY HAVE ON CEREBRUMEDGE’S ABILITY TO PERFORM THE SERVICES.

SECURITY.

CerebrumEdge shall take all reasonable measures to prevent unauthorized access to the Customer Data used in connection with the Services, including without limitation, state-of-the-art encryption technology, and CerebrumEdge shall use at least the same security measures it uses to protect its own proprietary information. CerebrumEdge shall notify Customer immediately of any known security breaches. CerebrumEdge is not responsible if Customer makes changes to default security settings which allow access to Customer Data or unauthorized access, breach of firewalls or other hacking by third parties.

In the course of accessing and/or utilizing the Services or CerebrumEdge Assets, Customer may create an account with CerebrumEdge. In such event, Customer agrees, represents and warrants as follows: (i) Customer is above the age of 18, the information provided to CerebrumEdge as part of such account creation is accurate, complete, and current at all times, and inaccurate, incomplete, or obsolete information may result in the immediate termination of Customer’s account; (ii) Customer is responsible for maintaining the confidentiality of Customer’s account and password, including but not limited to the restriction of access to Customer computers and/or accounts; (iii) Customer is responsible for any and all activities or actions that occur under Customer’s account and/or password, whether such password is with the Services or a third-party service; and (iv) Customer will notify CerebrumEdge immediately upon becoming aware of any breach of security or unauthorized use of Customer’s account.

CerebrumEdge OWNERSHIP OF IP.

Customer and CerebrumEdge agree that as between Customer and CerebrumEdge, CerebrumEdge shall retain all Intellectual Property Rights throughout the world in and to the CerebrumEdge IP and all of its derivative works and improvements (as each of those terms is defined and applied under Title 17 and Title 35 U.S.C., respectively), including, without limitation, all derivative works, modifications, amendments, and improvements to the Services, and all materials that result from the Services. No right, title or interest is granted or otherwise transferred to Customer in or to the CerebrumEdge IP or related materials except for the limited and temporary right to use certain of them in accordance with this Agreement. To the extent CerebrumEdge is not automatically deemed to be the author, inventor or owner of any CerebrumEdge IP, Customer agrees to and hereby does assign, transfer, grant, and convey to CerebrumEdge all rights, title and interest it may have in and to any and all CerebrumEdge IP, and agrees to execute all documents necessary to effect, confirm and evidence CerebrumEdge’s full ownership in and to all CerebrumEdge IP. Customer appoints CerebrumEdge its attorney in fact to execute such documents, which appointment is coupled with an interest and is therefore irrevocable. Customer acknowledges and agrees that CerebrumEdge shall have the right to access, use, reproduce, copy, display, process, modify, and create derivative works based on the Customer Data, including as embedded within the CerebrumEdge Custom Content.

TERMINATION.

If an obligation under this Agreement is breached the non-breaching party may provide a written notice specifying the nature of the breach and the breaching party will have thirty (30) days from receipt of such notice to cure. If not so cured within thirty (30) days, the non-breaching party may terminate this Agreement by providing the breaching party with a second written notice of immediate termination. In addition, this Agreement shall automatically and immediately terminate upon: (i) Customer insolvency or any attempt by Customer to obtain protection from Customer creditors or wind down Customer operations; (ii) Customer’s breach of any of the provisions Section above; and/or (iii) Customer’s breach of CerebrumEdge ownership rights or Customer’s payment obligations under this Agreement. Without limiting the foregoing, if any Subscription Fees are more than thirty (30) days past due, for any reason, CerebrumEdge may terminate this Agreement on written notice to Customer.
Upon expiration or the earlier termination of this Agreement, pursuant to its terms, the Customer Rights granted hereunder will immediately and automatically terminate, including Customer’s access to the Services and/or CerebrumEdge Assets, and the Customer must immediately (x) pay any outstanding amounts due to CerebrumEdge, (y) delete or destroy all copies of the CerebrumEdge IP (other than CerebrumEdge Custom Content obtained by Customer during the Term of this Agreement pursuant to the Services), including all extracts, summaries, and adaptations, and derived works thereof, stored on or through any Customer-controlled item, location or storage media; and (z) cease all use of the CerebrumEdge Assets and CerebrumEdge IP. Customer, through an officer or other authorized employee, shall certify in writing to CerebrumEdge, within seven (7) business days of termination of this Agreement, that the above stipulated actions have been performed. For the avoidance of doubt, Customer acknowledges and agrees that following expiration or the earlier termination of this Agreement, all CerebrumEdge Custom Content obtained by Customer during the Term of this Agreement pursuant to the Services will remain CerebrumEdge’s Confidential Information and may be retained and used by Customer solely in compliance with Section 7 of this Agreement, which shall survive and apply thereto for so long as retained, and solely for Customer’s internal business purposes.

CONFIDENTIAL INFORMATION.

As used herein, the term “Confidential Information” shall mean all non-public information disclosed by a party hereunder (the “Disclosing Party”), whether written or oral, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. A party receiving Confidential Information (“Receiving Party”) shall not directly or indirectly, at any time, without the prior written consent of the Disclosing Party, use or disclose the Confidential Information or any part thereof in a manner detrimental to the Disclosing Party or for any use other than necessary for the performance of the Receiving Party’s obligations under this Agreement. The term Confidential Information does not include information which: (i) has been or becomes publicly available without breach of an agreement regarding its confidentiality; (ii) Receiving Party properly possesses prior to disclosure hereunder; (iii) is lawfully received from a third-party having rights therein without restriction; or (iv) is independently developed by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information. The confidentiality obligations hereunder shall not apply to the extent that disclosure is required pursuant to a requirement of a governmental entity or by law. If the Receiving Party is requested by a court, governmental entity or other third-party to disclose any Confidential Information, it will promptly notify Disclosing Party to permit Disclosing Party to seek a protective order or take other appropriate action, and will assist in such activities. Receiving Party shall only disclose the part of the Confidential Information as is required by law to be disclosed and Receiving Party will use its best efforts to obtain confidential treatment thereof. Receiving Party acknowledges that the Confidential Information is the exclusive property of and belongs solely to the Disclosing Party and shall not claim otherwise for any purpose. Except as may be expressly contemplated by this Agreement and subject to continued compliance with its terms for so long as retained, Receiving Party agrees to return to the Disclosing Party, destroy and/or permanently delete, at Disclosing Party's discretion, all Confidential Information (including all copies thereof and all materials created based on Confidential Information) promptly following (i) the Disclosing Party’s request or (ii) within thirty (30) days following termination of this Agreement, and certify such in writing. In addition to any other rights and remedies hereunder or at law, Receiving Party acknowledges and agrees that due to the nature of the Confidential Information its confidentiality obligations to Disclosing Party hereunder are of a unique character and agrees that any breach of such obligations may result in irreparable and continuing damage to Disclosing Party for which there may be no adequate remedy in damages and relating to which Disclosing Party will be authorized and entitled to seek injunctive relief, without the necessity of posting a bond or other security, even if otherwise normally required.

WARRANTIES; DISCLAIMER.

Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement. CerebrumEdge makes no warranty of any kind to Customer or any third party with respect to any third party software used by Customer in conjunction with the CerebrumEdge Assets and shall have no responsibility or liability with respect thereto. All licenses and costs with respect to any third party software used by Customer in conjunction with the CerebrumEdge Assets, and all integration and use of and problems caused by or resulting from any such third-party software, are the sole and exclusive responsibility of Customer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH OF THE SERVICES AND THE CEREBRUMEDGE ASSETS IS PROVIDED “AS IS”, “WITH ALL FAULTS” AND AT CUSTOMER’S RISK, AND CEREBRUMEDGE DISCLAIMS ALL WARRANTIES NOT SET FORTH IN THIS SECTION 8, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY CEREBRUMEDGE AND WAIVED BY CUSTOMER. CEREBRUMEDGE DOES NOT WARRANT THAT THE SERVICES OR THE CEREBRUMEDGE ASSETS WILL MEET CUSTOMER REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR ARE ERROR FREE. CEREBRUMEDGE SHALL HAVE NO LIABILITY FOR ANY ERRORS OR FAILURES RELATED TO CAUSES EXTERNAL TO THE SERVICES OR THE CEREBRUMEDGE ASSETS, INCLUDING FAILURES OF THIRD PARTIES OR THEIR RELATED OR SUPPORTING SOFTWARE OR SERVICES. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

INDEMNITY.

CerebrumEdge will indemnify Customer and hold Customer harmless from amounts, awards or damages owed to third parties as the result of either a ruling by a court of competent jurisdiction or a reasonable settlement entered into or approved by CerebrumEdge, which holds that the Services: (x) infringes or violates any intellectual property rights, or (y) breaches applicable data privacy laws. In addition, upon receipt of an infringement claim, or if at any time CerebrumEdge reasonably believes that the Services may be subject to a claim of infringement, then CerebrumEdge may choose to: (a) modify the applicable portions of the Services to be non-infringing; or (b) obtain a license for Customer to continue using the infringing portions of the Services. If CerebrumEdge chooses not to undertake those actions, or if neither of them is commercially practicable, CerebrumEdge may terminate this Agreement and refund to Customer pre-paid but unused fees. CerebrumEdge’s indemnity obligations shall not apply to: (i) Customer use of the Services or the CerebrumEdge Assets outside the scope of this Agreement; (ii) any infringement arising from use of third party materials; (iii) any infringement not reported by Customer in accordance with this Agreement; or (v) Customer failure to use any updated version of the Services or the CerebrumEdge Assets; and (vi) any claim relating to user data or user defined categories or criteria. This Section sets forth Customer’s only remedy and CerebrumEdge’s only liability with respect to infringement or other violations of intellectual property rights. Customer will indemnify, defend and hold CerebrumEdge harmless from all claims, causes of actions and all damages, costs and expenses (including reasonable legal costs) arising from: any (1) allegation of infringement of any third party intellectual property rights based on (a) use of application code or modifications developed by or for Customer, (b) use of any other software or hardware that is used in conjunction with the CerebrumEdge Assets, (c) unauthorized use of the CerebrumEdge Assets, or (d) use of the CerebrumEdge Assets not in conformance with the Documentation, specifications or the requirements of this Agreement, (2) unauthorized use of the CerebrumEdge Assets by Customer, or (3) breach of any provision of this Agreement by Customer.

LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, CEREBRUMEDGE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOST OR IMPUTED PROFITS, LOST DATA, LOSS OF BUSINESS OPPORTUNITY OR CLAIMS OF THIRD PARTIES), HOWEVER CAUSED, WHETHER BY NEGLIGENCE OR OTHERWISE, REGARDLESS OF THE FORM OF ACTION, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT PRODUCT LIABILITY, INFRINGEMENT OR OTHERWISE, AND WHETHER OR NOT CEREBRUMEDGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CEREBRUMEDGE'S TOTAL LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES IN THE AMOUNT EQUIVALENT TO THE FEES ACTUALLY RECEIVED BY CEREBRUMEDGE UNDER THIS AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION 10 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. Customer must bring all claims and causes of action within six (6) months of their being discovered or three (3) years after the date of this Agreement, whichever occurs first. The foregoing allocation of liability fairly reflects the economic circumstances and risks that CerebrumEdge and Customer are willing to undertake in view of the amounts payable to CerebrumEdge by Customer for the Customer Rights and otherwise in connection with the Services.

ASSIGNMENT.

Neither party may assign or otherwise transfer this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld; provided, however that each party may transfer all of its rights and obligations to a purchaser of substantially all of a party’s assets or equity or a successor in interest as a result of a merger upon written notice to the other party. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the Parties hereto and their successor’s and permitted assigns.

MISCELLANEOUS; GOVERNING LAW; NOTICES.

This Agreement maybe signed in separate, identical counterparts each of which together shall be deemed to be one instrument. The laws of the State of Karnataka, India will govern this Agreement without regard to conflicts of law principles. The Parties agree that any action or proceeding arising out of or related to this Agreement shall be brought exclusively in the courts of Bengaluru, Karnataka, and each of the Parties hereby irrevocably accepts the exclusive personal jurisdiction and venue of those courts for the purpose of any suit, action or proceeding. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. All notices and other communications will be sent by certified mail, return receipt requested, or reputable overnight courier, signature required, to the address specified for each party and deemed given one (1) business day after sending. Waiver of a breach is not waiver of other or later breaches, and the failure of either party to enforce any term or condition of this Agreement shall not constitute a waiver of either party’s right to enforce each and every term and condition of this Agreement.

FORCE MAJEURE.

Except for the obligation to pay sums due hereunder, the obligations of a Party shall be abated and such Party shall have no liability to the other Party for so long as, and to the extent that, its performance is prevented by a cause or event over which it does not have direct control, including, but not limited to: (a) failure of electronic or mechanical equipment or communication lines that is not caused by the obligated Party, (b) severe weather, earthquakes, or natural disasters; (c) strikes or other labor problems, wars, or governmental restrictions. The Party claiming the abatement of obligations hereunder shall reasonably notify the other of the cause or event giving rise to such claim and shall take reasonable steps to limit the effect and duration of such cause or event. Should a Force Majeure event extend for greater than sixty (60) days, the non-affected party shall have a right to terminate this Agreement upon written notice.

ENTIRE AGREEMENT AND SURVIVAL.

This Agreement includes the attached Exhibit(s) and is the entire agreement between the parties with respect to the subject matter herein and supersedes all previous or contemporaneous written and verbal agreements or proposals relating to the same subject matter, and cannot be modified except in a writing signed by both parties. If any provision of this Agreement or portion of any such provision shall be held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain in full force and effect, and the provision or portion thereof affected by such holding shall be modified, if possible, so that such offending provision is enforceable to the maximum extent permissible.