E-PRIME EXTENSIONS FOR BRAIN PRODUCTS 3.0 END USER LICENSE AGREEMENT (EULA)

IMPORTANT -- READ CAREFULLY: This E-Prime Extensions for Brain Products 3.0 End User License Agreement ("Agreement") is a binding agreement between you ("Licensee") and Psychology Software Tools, Inc. ("Licensor"), having a principal place of business located at 311 23rd Street Ext, Suite 200, Pittsburgh, PA 15215. This Agreement governs your use of the E-Prime Extensions for Brain Products 3.0 Software and the Documentation. 

THE SOFTWARE IS LICENSED, NOT SOLD, TO YOU. BY SELECTING THE "I ACCEPT THE TERMS IN THE LICENSE AGREEMENT" OPTION DURING SOFTWARE INSTALLATION AND INSTALLING THE SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL THE SOFTWARE.

 1. Definitions. For purposes of this Agreement, the following terms have the following meanings:

"Authorized Users" means any individual persons that: (1) the Licensee authorizes within its business; (2) who has been given access to the Software provided to Licensee by the Licensor; and (3) downloads or installs the Software and agrees to the terms and conditions of this Agreement 

"Documentation" means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.

"License Fees" means the license fees, including all taxes thereon, paid by Licensee for the license granted under this Agreement as reflected on the Invoice.

"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

"Invoice" means the purchase transaction document that is generated by the Licensor, in response to an accepted purchase order issued by Licensee, and which reflects the products purchased by Licensee, the number of copies/units purchased and Licensor's fees associated with the purchase.

"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

"Software" means the E-Prime Extensions for Brain Products 3.0 software program(s) for which Licensee is purchasing a license pursuant to the terms and conditions of the Agreement. E-Prime is a registered trademark of Psychology Software Tools, Inc.

"Third Party" means any Person other than Licensee or Licensor.

 2. License Grant and Scope. Subject to and conditioned upon Licensee's payment of the License Fees and Licensee's strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable limited license during the Term of this Agreement to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee's Authorized Users, to:
	(a) Copy and install in accordance with the Documentation one (1) copy of the Software for development purposes and one (1) copy of the Software for data collection purposes, on any computers Licensee chooses, provided the computers are owned or leased, and controlled by, Licensee and the person copying and installing the Software is an Authorized User. In addition to the foregoing, Licensee has the right to make one (1) copy of the Software solely for archival purposes and one copy of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for as long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy(ies). All copies of the Software made by the Licensee:
		(i)	will be the exclusive property of the Licensor;
		(ii)	will be subject to the terms and conditions of this Agreement; and 
		(iii)	must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

	(b) Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee's internal business, research or educational purposes.
	Licensor grants to the Licensee the right to use one (1) copy of the Software for experiment development purposes and one (1) copy of the Software for data collection purposes.
	Licensor grants to the Licensee the right to use the Software only in conjunction with validly licensed and supported copies of Windows 7, Windows 8/8.1 and Windows 10. Licensor can make no claim or statement of Software compatibility with versions of the Windows operating system or computer hardware systems which are not available in commercial form prior to the Software initial release date. At its sole discretion, Licensor may offer support for additional operating systems available for a fee or no charge download.
Licensor grants to the Licensee the right to use the Software only in conjunction with Brain Products software and/or hardware products.

	(c) Download or otherwise make one (1) copy of the Documentation and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:
		(i)	will be the exclusive property of Licensor;
		(ii)	will be subject to the terms and conditions of this Agreement; and 
		(iii)	must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

	(d)	Transfer any copy of the Software from one computer to another, provided that the Software will be used by an Authorized User and meets all other criteria in this Section 2.

 3. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
	(a)	use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;

	(b)	provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;

	(c)	modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

	(d)	combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

	(e)	reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

	(f)	remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;

	(g)	except as expressly set forth in Section 2(a) and 2(c), copy the Software or Documentation, in whole or in part;

	(h)	rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;

	(i)	use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including:
		(i)	safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems;
		(ii)	military or aerospace applications, weapons systems, or environments;
		(iii)	aircraft navigation or communication systems, air traffic control systems, or any other transport management systems;
		(iv)	power generation systems; 

	(j)	use the Software or Documentation in violation of any law, regulation, or rule; or

	(k)	use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor's commercial disadvantage.

 4. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.

 5. Maintenance and Support. The license granted hereunder will include any maintenance and support services as indicated on the Invoice.

 6. Collection and Use of Information.
	(a)	Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services; and
	(b)	Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:
		(i)	improving the performance of the Software or developing updates; and
		(ii)	verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software.

7. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Licensor reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access.

 8. Payment. All License Fees and Maintenance and Support Fees are payable in advance in the manner set forth in the Invoice and are non-refundable unless provided for in Section 10(c).

 9. Term and Termination.
	(a)	This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Invoice or until earlier terminated as set forth herein (the "Term").
	(b)	Licensee may terminate this Agreement by providing thirty (30) days written notice to Licensor and ceasing to use and destroying all copies of the Software and Documentation. 
	(c)	Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for ten (10) days after Licensor provides written notice thereof.
	(d)	Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
	(e)	Upon expiration or earlier termination of this Agreement, the license granted hereunder shall remain in full force and effect as long as Licensee has not breached any of the terms of this Agreement and is using the Software in conjunction with a compatible operating system. If Licensee breaches this Agreement or is no longer using an operating system compatible with the Software, upon expiration or termination of this Agreement, the license granted under this Agreement shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund unless provided for in Section 10(c).

 10. Limited Warranties, Exclusive Remedy, and Warranty Disclaimer.
	(a)	Solely with respect to Software for which Licensor receives a License Fee, Licensor warrants that,
		(i)	for a period of sixty (60) days following the license date set forth on the Invoice, the Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith; and
		(ii)	for a period of one (1) year following the license date set forth on the Invoice, any media on which the Software is provided, will be free of material damage and defects in materials and workmanship under normal use.
	(b)	The warranties set forth in Section 10(a)(i) and 10(a)(ii) will not apply and will become null and void if Licensee breaches any provision of this Agreement, or if Licensee, any Authorized User, or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement:
		(i)	installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Licensor in writing;
		(ii)	modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or
		(iii)	misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Licensor in writing.
	(c)	If, during the period specified in Section 10(a), any Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to Section 10(b), Licensor will, subject to Licensee’s promptly notifying Licensor in writing of such failure, at its sole option, either:
		(i)	repair or replace the Software, provided that Licensee provides Licensor with all information Licensor requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or
		(ii)	refund the License Fees paid for such Software, subject to Licensee’s ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software.
	(d)	If Licensor repairs or replaces the Software, the warranty will continue to run from the initial date specified on the Invoice. The remedies set forth in this Section 10(c) are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Section 10(a).
	(e)	EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

 11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
	(a)	IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
	(b)	IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE AS INDICATED ON THE INVOICE THAT IS THE SUBJECT OF THE CLAIM.
	(c)	THE LIMITATIONS SET FORTH IN SECTION 11(a) AND SECTION 11(b) SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

 12. Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.

 13. US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. 2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. 227.7201 through 48 C.F.R. 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. 12.212, with respect to all other US Government licensees and their contractors.

 14. Miscellaneous
	(a)	Complete Agreement: This Agreement together with the Invoice represents the complete agreement between the parties hereto with respect to the subject matter contained herein.
	(b)	Amendments: Any and all amendments to the terms of this Agreement must be made in writing and agreed to by both parties.
	(c)	Severability: The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
	(d)	No Assignment or Transfer of Rights: Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
	(e)	Governing Law, Mandatory Choice of Forum and Consent to Personal Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to principles of conflict of laws. Any legal suit, action or proceeding arising out of or related to this Agreement shall be instituted exclusively in the United States District Court for the Western District of Pennsylvania or the courts of the State of Pennsylvania, Westmoreland County. Both parties expressly consent to the jurisdiction of such courts. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions in any manner provided by law. Lastly, each party submits and specifically consents to personal jurisdiction in the courts of the state of Pennsylvania, as well in the United States District Court for the Western District of Pennsylvania, and hereby waives any objection based upon personal jurisdiction or forum non conveniens. 
	(f)	Notifications. All notices and other communications hereunder shall be in writing and shall be deemed to have been give if sent my regular mail to the other party. Such communications must be sent to the respective parties at the addresses set forth on the Invoice.
	(g)	Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
	(h)	No Waiver.
		(i) No Oral Waivers. No waiver under this Agreement is effective unless it is in writing (excluding an email), identified as a waiver to this Agreement and signed by an authorized representative of the party waiving its right.
		(ii) Waiver Only for Specific Instance and Purpose. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
		(iii) Failure, Delay and Course of Dealing Not a Waiver. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement:
			(aa) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or
			(bb) any act, omission or course of dealing between the parties.