Terms and Conditions

DIGITAL BRAIN B.V. (Digital Brain) PROVIDES ACCESS TO ITS SOFTWARE AND SERVICES SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS SOFTWARE LICENSE AND SERVICES AGREEMENT, ALONG WITH ANY SUBSEQUENT AMENDMENTS OR ORDERS, (THE “AGREEMENT”). PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY. AS USED IN THIS AGREEMENT, REFERS TO THE PERSON OR ENTITY USING THE SOFTWARE OR RECEIVING THE SERVICES. BY USING THE SOFTWARE OR THE SERVICES, THE CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT ABLE TO USE THE SOFTWARE.

The “Effective Date” of this Agreement is the date the Customer accepts this Agreement as provided below. As used in this Agreement, Digital Brain and Customer are each a “Party” and are collectively the “Parties”.

1. Overview
This Agreement is a master agreement under which Customer may license or access Digital Brain’s Software and obtain Services (all as defined herein) requested by Customer in an applicable Order. This Agreement shall be implemented through one or more Orders that set forth the Software to be licensed by Customer and other Services purchased.

2. Definitions
The following defined terms are used in this Agreement, together with other terms defined herein.

  1. Affiliate” means any entity which is owned more than 50% by a Party, over which a Party exercises management control, which is under common control with a Party or which owns more than 50% of a Party’s voting securities.
  2. Components” are optional plug-ins that add specific features to the Software to enable additional functionality or optional connectors used to connect third-party systems to the Software at the application programming interface level (“API“) and may be provided to Customer by Digital Brain and/or subject to additional fees or terms.
  3. Customer Content” means any and all information entered by Customer into the Software that relates to Customer’s use of the Software. Customer Content may include Personal Information. Customer Content does not include any third- party software Customer deploys in connection with its use of the Hosted Services (“Third-party Content“).
  4. Data Protection Laws” means applicable domestic and foreign laws, rules, directives and regulations, on any local, provincial, state, federal or national level, pertaining to data privacy, data security and/or the protection of Personal Information in effect as of the date of this Agreement, including but not limited to, Regulation (EU) 2016/679, General Data Protection Regulation (“GDPR“).
  5. Device” means an Apple iOS, macOS or tvOS device.
  6. Documentation” means Digital Brain’s definitive technical specifications and user guides, in any form, that explain the capabilities of the Software and instructions for using the Software as updated from time to time found at support.screentrust.com.
  7. Hosted Services” means Customer’s access to an instance of certain Software on a software as a service basis, located in selected regional data centers and made available for Customer’s use.
  8. Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
  9. Order” means a purchase order, schedule or other ordering document issued by Customer indicating a promise to pay and acceptance of the then current Quote. All Orders are subject to this Agreement and any additional or inconsistent terms included on an Order are not binding on Digital Brain and Digital Brain expressly rejects them.
  10. Personal Information” means any information relating to an identified or identifiable natural person that is stored, processed or transmitted in connection with, or as a result of, providing the Hosted Services or as otherwise specified in applicable Data Protection Laws. Personal Information does not include any information that is de-identified, anonymized and aggregated.
  11. Quote” means the system-generated offer from Digital Brain that identifies the Software and/or Services to be ordered by Customer and the Subscription and/or Services term and applicable fees.
  12. Services” means Hosted Services. Services do not include custom development work.
  13. Software” means Digital Brain’s proprietary software identified in an applicable Order, together with modifications, updates and new versions provided by Digital Brain (“Updates“). Software and Updates do not include Components or other Digital Brain products having substantially enhanced or different functionalities or that require a separate license. Software does not include Test Software.
  14. Support and Maintenance” means access to Digital Brain’s standard technical support resources, as further described at support.screentrust.com, and Software Updates.
  15. Third-party Service Provider” means a third-party service provider or contractor that performs outsourced IT services for Customer’s benefit solely to support Customer’s internal business operations.

3. Software License
Subject to the terms and conditions of this Agreement, Digital Brain grants Customer a non-exclusive, non-sublicensable, non-transferable license to (i) access and use the Software via the Hosted Services or (ii) install and use the Software on Customer’s Devices. In either case, such grant is for Customer’s internal business purposes only and only for the number of Devices and terms specified in the applicable Order (the “Subscription“).
(a)Software is subject to the usage limits specified in an applicable Order (e.g., number of Devices). If Customer exceeds the contractual usage limit (“Excess Use“), Customer will execute an Order for additional quantities of the applicable Software promptly upon Digital Brain‘s request and/or pay any invoice for such Excess Use in accordance with Section 5 below.
(b) Customer may (i) use only one instance of the Software in a production environment. (ii) Test Software may only be used for the term and purpose authorized by Digital Brain, is provided “AS IS” without warranty of any kind and Digital Brain disclaims all warranties, indemnities and all other liabilities.

4. Hosted Services
Access to the Hosted Services is available 24 hours a day, 7 days a week with the exception of regularly scheduled or emergency maintenance and includes a server operating system, back-up and storage, firewall protection and monitoring of the Hosted Services to ensure they are operational at all times. Digital Brain will use commercially reasonable efforts to schedule maintenance during non-peak usage hours and provide advance notice.

5. Payment Terms
Unless otherwise stated in the relevant Order, all invoices shall be due and payable net 30 days from the date of invoice. Customer shall pay fees and applicable taxes for the Software and/or Services as set forth on the applicable Order, including for Excess Use. If Customer is purchasing from a Digital Brain authorized reseller, payment terms are determined by Customer and the reseller.

6. Permitted Use by Affiliates and Third-party Service Providers
Customer may use the Services for the benefit of its Affiliates to the extent Customer is permitted to use the Services under this Agreement. An Affiliate may license the Services under this Agreement. Customer may authorize one or more Third-party Service Providers to access and use the Services to the extent of Customer’s permitted use under this Agreement, but solely on Customer’s behalf and solely to support Customer’s internal business operations. These authorizations may be revoked by Digital Brain if Customer, its personnel, Affiliates or Third-party Service Providers violate the terms and conditions of this Agreement. Customer is responsible for the full compliance of all provisions of this Agreement applicable to Customer by its Affiliates, their personnel and any Third-party Service Providers and their personnel.

7. Customer Obligations, Representations and Warranties
a. Customer must provide, at its expense, as applicable, such (i) internal network, hardware, mobile Devices, software applications, current operating systems and supported web browsers and (ii) broadband, cellular or Internet service, all as sufficient or necessary to access and use the Services. In the event Digital Brain changes applicable technical requirements (which it may at its sole discretion), such changes will be communicated in advance to Customer.
b. Customer will provide written acknowledgement of receipt or delivery of the Service in a format reasonably requested by Digital Brain. If no such acknowledgement is requested or provided, all Services are deemed accepted upon delivery.
c. Customer shall comply with all requirements imposed by Apple and all other software vendors related to registration of software and/or requirements, on Customer’s systems or Devices.
d. Customer is responsible for maintaining the confidentiality of the password(s) established by Customer and ensuring that they are not shared or otherwise disclosed. Customer is solely responsible for any and all activities conducted under the Customer user names.
e. Customer will implement reasonable safeguards to prevent unauthorized access to or unauthorized use of the Hosted Services, and use the Services only in accordance with the Documentation and this Agreement.
f. The Customer represents and warrants that it owns or has the rights to use Personal Information, Customer Content and Third Party Content and that it has the necessary permissions and legal authority (including under Data Protection Laws) to provide it to Digital Brain and grant Digital Brain the rights to use it in connection with Digital Brain’s performance of its obligations under this Agreement.

8. Restrictions on Use of Software
Customer shall not, except as provided in this Agreement, (a) copy, reproduce, distribute, transfer, rent, lend, loan, lease or sublicense any portion of the Software, (b) use or permit the Software to be used to perform services for third parties, whether on a service bureau, SaaS, time sharing basis or otherwise, (c) translate, adapt, modify, alter or combine with other software (combine does not mean using the Software in conjunction with other software), or prepare derivative works based in whole or in part on the Software, (d) reverse engineer, decompile, disassemble or otherwise reduce the Software to a human-perceivable form (except and solely to the extent expressly permitted by applicable law), (e) disclose or provide proprietary information regarding the Software to any third-party not authorized under this Agreement to use the Software on Customer’s behalf, without Digital Brain’s prior written consent, (f) externally provide, disclose or publish performance or evaluation results regarding the Software without Digital Brain’s prior written consent, (g) alter or remove any proprietary notices or legends contained on or in the Software or Documentation, (h) use access to the Software to develop products, systems or services similar to or competitive with the Software, (i) upload any files or Third-party Content to the Hosted Services that contain viruses or harmful computer code or violates any intellectual property or proprietary rights of others, (j) interfere with or unreasonably burden the operation of the Hosted Services, including the servers, computers, routers, network, Internet or software that is part of, or interacts with the Hosted Services, (k) attempt to break, bypass, defeat or circumvent the controls or security measures of the Hosted Services and/or any components thereof or any software installed on the Hosted Services, (l) attempt to obtain access to any Digital Brain hardware, programs or data beyond the scope of the permitted access granted by Digital Brain, and (m) continue to access or use the Hosted Services after Customer’s access or authorization has been terminated or suspended or the Subscription has expired.

9. Intellectual Property Ownership
Customer owns all rights in Customer Content, including Intellectual Property Rights. The Software and Services contain proprietary and copyright-protected material and trade secrets and other Intellectual Property Rights, which are exclusively owned by Digital Brain, its Affiliates or Digital Brain’s licensors. Customer obtains no rights, title or interest of Digital Brain, its Affiliates or Digital Brain’s licensors in and to the Software or Services, including any Intellectual Property Rights and industrial property rights. Customer will not take, during or after the termination of this Agreement, any action inconsistent with such exclusive ownership. Customer is not obligated to provide Digital Brain any suggestions, recommendations, ideas, suggestions, or feedback about the Software or Services (“Feedback“) to Digital Brain. To the extent any Feedback is provided to Digital Brain by Customer (or Customer’s Third-party Service Providers), Customer assigns any ownership rights of such Feedback to Digital Brain.

10. Warranties
Digital Brain represents and warrants to Customer that (a) it owns or has the right to license the Software and provide access to the Hosted Services; (b) the Software and Hosted Services shall substantially conform to the description thereof in the Documentation, (c) the Services shall be performed in a professional and workman-like manner, consistent with industry standards and (d) the Software and Services are provided free of viruses, malware or other malicious or destructive programs or features. These warranties are void if the Software and/or a Service is modified, combined with other product or services or used other than as provided in the Documentation or as expressly approved by Digital Brain in writing. Any claim made under any warranty shall be made within one year of the transaction or occurrence giving rise to such warranty.

11. Disclaimers
Except as set forth in Section 10, Digital Brain makes no warranties regarding the Software or Services. No oral information or advice given by Digital Brain or a Digital Brain authorized representative will create a warranty. Digital Brain disclaims all implied warranties, including without limitation, any warranties of merchantability and fitness for a particular purpose. Digital Brain does not warrant against all interference with Customer’s enjoyment of the Software or Services, that the functions contained therein will meet Customer’s requirements, that the operation thereof will be uninterrupted or error- free or that defects therein will be corrected.

12. Limitations of Liability
In no event will either Party or its successors or assigns be liable for incidental, special, indirect, consequential or punitive damages whatsoever, including, without limitation, damages for loss of profits, lost time, lost savings, loss of data or for business interruption arising out of or related to this Agreement or Customer’s use of or inability to use the Software and/or Services. Customer’s sole remedy and Digital Brain’s sole liability for Digital Brain’s breach of Section 10(a), 10(b) or 10(c) shall be to replace the Software and/or re-perform the Service. In no event, will either Party’s total liability to the other Party for damages (other than as may be required by applicable law) exceed the amount of money paid with respect to the Software and/or Services to which they relate in the twelve (12) month period preceding any claim, except for Customer’s breach of Digital Brain’s Intellectual Property Rights.

13. Third-party Indemnification
A Party, including its successors and assigns, will indemnify, hold harmless and defend the other Party, its agents, officers, directors, employees, affiliates, successors and assigns from and against any damage or liability, including reasonable costs and attorney’s fees, asserted by third parties (“Claim“). In the case of Digital Brain indemnifying Customer, a Claim alleging that Customer’s use or possession of the Software in accordance with this Agreement infringes a third-party’s Intellectual Property Rights. In the case of Customer indemnifying Digital Brain, a Claim that (i) Customer’s provision of Customer Content, Third-party Content or Personal Information to Digital Brain violates any third-party Intellectual Property Right or privacy right, (ii) Customer or its Third-party Service Provider’s use of the Software and/or Services in violation of this Agreement violates any third-party Intellectual Property Right or privacy right. A Party’s indemnification obligations pursuant to this Section 13 are conditioned upon receipt of prompt written notice of the Claim from the Party seeking indemnification. A Party seeking indemnification shall also provide reasonable cooperation in the defense and settlement of any such Claim and take no action prejudicial to such defense and settlement.

14. Term, Termination and Suspension
a) Term. This Agreement is effective on the earlier of the Effective Date or the date the Customer begins using the Software and/or Services and shall remain in effect until the expiration of the applicable Subscription (unless extended by Digital Brain in its sole discretion) or otherwise terminated hereunder.
b) Termination. Customer may terminate this Agreement, the Subscription and/or Services at any time by giving Digital Brain thirty (30) days’ written notice and by paying any outstanding fees for the Subscription and Services. Digital Brain may terminate this Agreement, the Subscription and/or Services if Customer fails to pay applicable fees when due or otherwise breaches the Agreement and fails to cure any such breach within ten (10) days of receiving written notice from Digital Brain. Digital Brain may immediately terminate this Agreement, the Subscription and/or Services if Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. Upon termination for any reason, Customer shall cease using the Software and/or Services.
c) Suspension of Hosted Services. Notwithstanding the above, Digital Brain may suspend access to the Hosted Services immediately upon notice to Customer if Digital Brain determines that Customer’s use of the Hosted Services (i) poses a security risk to the Hosted Services or any third party, (ii) may adversely impact the Hosted Services or the systems or data of any other customer or (iii) may subject Digital Brain, its affiliates or any third party to liability. Digital Brain may terminate this Agreement, the Subscription and/or Services, if Customer fails to cure within thirty (30) days of the suspension notice. Customer remains responsible for payment under any Order and Customer will not be entitled to any service availability credits available pursuant to Digital Brain’s service level commitment for any period of suspension.
d) Termination of Hosted Services. Digital Brain may immediately terminate access to the Hosted Services (i) if Digital Brain’s relationship with a third-party service provider who provides servers, software or other technology that Digital Brain uses to provide the Hosted Services terminates or requires Digital Brain to change the way Digital Brain provides the Hosted Services, (ii) if Digital Brain believes providing the Hosted Services could create a substantial security risk for Digital Brain or any third party or (iii) in order to comply with applicable law or requests of governmental entities.

15. Notice
All notices required or permitted under this Agreement shall be in writing and delivered to the attention of a Party’s legal department at the address set forth above, either personally or via express or certified mail.

16. Force Majeure
Neither Party will be liable for damages for any delay or failure in performance or delivery arising out of causes beyond its reasonable control, including but not limited to, labor strikes, acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions or electrical or communications failures.

17. Compliance with Laws; Export Control
Each Party will comply with all laws applicable to the actions contemplated by this Agreement.

18. Confidentiality
In connection with the performance of the Parties’ obligations under this Agreement, either Party may provide information it considers proprietary or confidential to the other Party. “Confidential Information” includes all information relating to a Party’s business that has value to a Party and is not generally known to the public, and, specifically includes, but is not limited to, Software and Customer Content. Confidential Information excludes information that (a) lawfully is or becomes part of the public domain through no act or omission of the receiving Party, (b) comes into a Party’s lawful possession without restriction on disclosure or (c) is independently created by a Party without use of or reliance on the other Party’s Confidential Information. Each Party agrees that it shall protect the other Party’s Confidential Information by using the same degree of care it uses to protect its own Confidential Information (but no less than a reasonable degree of care). Neither Party will use Confidential Information or divulge it to a third party, except as allowed or required to perform a Party’s obligations under this Agreement. For avoidance of doubt, Customer may disclose Digital Brain Confidential Information to Customer’s Affiliates to the extent reasonably necessary for a Customer Affiliate to use the Software as authorized under this Agreement. The Parties’ confidentiality obligations under this Section 18 shall continue for three (3) years from the termination (for any reason) of this Agreement, except with respect to trade secrets for which the obligations shall continue so long as the Confidential Information legally remains a trade secret.

19. Information Security and Data Processing
At all times during the term of this Agreement, Digital Brain shall implement and maintain appropriate administrative, physical, technical and organizational safeguards and security measures designed to protect against anticipated threats to the security, confidentiality or integrity of Customer Content. Digital Brain shall only process Personal Information on behalf of and in accordance with Customer’s instructions and applicable law, including Data Protection Laws.
The Parties agree that Digital Brain does not require (or request that) Customer provide Digital Brain any Personal Information to use the Software or to receive the benefit of the Services, and that it is Customer’s choice alone to enter any Personal Information into the Software for the purpose of managing its Devices. Customer also has and is encouraged to use alternative methods to identify Devices managed with the Software, including by providing anonymous identifiers that do not include or constitute Personal Information. In no event will Customer provide to Digital Brain any special categories of Personal Information as defined by GDPR.

20. Third-party Acknowledgements
Portions of the Software and/or Services may utilize or include open source and third-party software and other copyrighted material. Such software and Customer’s use of the Software and/or Services is subject to any applicable third- party licenses as set forth within the Software or made available upon Customer’s request. The terms and conditions of such third-party licenses shall govern Customer’s use thereof. Digital Brain represents that it has the right and authorization to use and distribute open source and third-party software utilized in conjunction with the Software and Services or that is embedded in the Software and Digital Brain shall maintain compliance with all applicable open source and third-party software licenses.

21. Data Collection
Digital Brain and its service providers may collect and use statistical, usage, configuration and performance data of the Hosted Services (collectively, “Performance and Usage Data“) and Customer Content to monitor the performance, integrity and stability of the Hosted Services, address or prevent technical or security issues, provide Support Services, and improve the Hosted Services. Digital Brain will not otherwise access, use or process Customer Content except as necessary to provide the Services. During and after the term of this Agreement, Digital Brain and its service providers may use and disclose Performance and Usage Data and Customer Content for any purpose, provided that such Performance and Usage Data and Customer Content have first been de-identified, anonymized and aggregated such that the data or content (as applicable) does not identify Customer or any individual, including, without limitation, a Customer employee or end user.

22. Choice of Law, Jurisdiction and Venue
This Agreement is governed by the laws of The Netherlands, without regard to its conflict of laws provisions.
Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be settled at the District Court of Assen (The Netherlands) or at the discretion of Digital Brain B.V. another competent court. The language used in proceedings before this court shall be English.

23. Miscellaneous
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior understandings regarding such subject matter, whether written or oral. No amendment or
modification to the provisions of this Agreement will be binding unless in writing and signed both Parties. Any waiver by a Party of a breach of any provision of this Agreement will not operate as or be construed as a waiver of any further or subsequent breach. Provisions of this Agreement which by their nature are to be performed or enforced following any termination of this Agreement shall survive such termination. Digital Brain may assign this Agreement to an Affiliate or in connection with a merger or the sale of substantially all of Digital Brain assets. This Agreement will be binding upon and inure to the benefit of the Parties, their successors and permitted assigns. If this Agreement is translated into languages other than English, the English version will control. This Agreement may be executed in counterparts, which together constitute one binding agreement. Digital Brain reserves all rights not expressly granted to Customer under this Agreement.