THIS TERMS OF SERVICE AGREEMENT contain the terms and conditions on which Neuromersive Inc., a Delaware corporation (“NRXR”) supply content, products and services to Client, the purchaser of the product, content or services.

WHEREAS, NRXR designs and creates virtual reality exercises for use in neurological rehabilitation (collectively with all proprietary software, software as a service, and any related updates, materials, and documentation made available to Client by NRXR in connection with this Agreement, the “Product”);

WHEREAS, Client is a healthcare provider engaged in neurological rehabilitation and desires to use the Product in the course of its rehabilitation services;

NOW, THEREFORE, in consideration of the premises and the agreements set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, agree as follows:

1. Provision of Product and Grant of License.  NRXR shall provide Client with the Product, including all software, hardware, materials, and documentation necessary for the operation of the Product and as identified in Exhibit A, which is attached hereto and incorporated for all purposes.  Subject to the terms and conditions contained in this Agreement, NRXR hereby grants to Client, for the Term, a non-exclusive, non-perpetual, terminable, non‑transferable, limited license to utilize the Product for its internal use in accordance with the terms of this Agreement during the term of this Agreement.  Client’s rights under this Agreement will automatically terminate upon expiration of or termination of this Agreement.

2. Ownership.  All right, title, interest, and ownership in the Product shall at all times remain solely with NRXR.  All data created throughout the Term by NRXR and by the Product shall be the property and Confidential Information of NRXR.

3. Restrictions on Use.  With regard to the Product, no intellectual property license, and no other license of any kind, is granted except for the limited right to use the Product as provided in this Agreement during the Term.  Client shall use the Product according to and in compliance with this Agreement and all documentation and recommendations provided by NRXR.  NRXR shall provide all software included in the Product in object code only, and Client shall not reverse engineer, disassemble, or decompile any software which in included in or with the Product.  No NRXR materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or means without NRXR’s prior express written permission.  Client shall not alter the Product except with the prior written consent of NRXR.  Any alterations made or suggested for the Product by Client shall be the exclusive property of NRXR, together with all intellectual property and other rights therein.  Client shall execute any documents, and otherwise cooperate with NRXR at NRXR’s expense, as necessary to enable NRXR to protect such rights.  Client may not rent, lease, or lend the Product to any other person or entity.

4. Equipment. 

a. Client hereby purchases from NRXR, and NRXR hereby sells to Client, the equipment identified in Exhibit A (the “Equipment”).  The Equipment shall be deemed to include any software, documentation (including manuals and educational materials) or software maintenance releases and updates which are provided by the manufacturer of the Equipment (the “Manufacturer”).  NRXR shall deliver the Equipment to Client at the Client Address.  NRXR may substitute the Equipment for equipment of equivalent or superior functionality.

b. Client acknowledges and agrees that it is exclusively responsible for the operation, supervision, management and control of the Equipment, including, but not limited to, providing adequate training for its personnel, instituting appropriate security and safety procedures, and implementing reasonable procedures to examine and verify all output before use.  NRXR shall have no responsibility or liability for Client’s use of the Equipment or any associated equipment. Upon delivery of the Equipment, Client bears all risk of loss and damage to the Equipment.

5. Term.  This Agreement shall commence on the Effective Date and shall end on the last day of the Initial Term (which shall be the last day of the month in which the time period indicated in Section 1(a) following the Effective Date expires).  This Agreement shall automatically renew for successive renewal terms of twelve (12) months (“Renewal Term(s),” or collectively with the Initial Term, the “Term”) unless terminated as permitted hereunder.  Either party may terminate this Agreement at the expiration of the Initial Term or the then-current Renewal Term by providing written notice to the other party of not less than ninety (90) days prior to the end of the Initial or the then-current Renewal Term.  For avoidance of doubt, termination shall be effective at the expiration of the Initial Term or the then-current Renewal Term, as applicable. 

6. Fees and Expenses.  

a. Client shall pay the Monthly Fee to NRXR each month during the Term.  Payments of the Monthly Fee are due and payable in advance without demand. The first payment shall be due upon Client’s receipt of the Product and subsequent payments shall be due on the first (1st) day of each month thereafter during the Term.  If Client receives the Product on a day other than the first day of a calendar month, the Monthly Fee for such partial month shall be prorated in the proportion that the number of days of the partial month after Client’s receipt of the Product bears to the number of days in that calendar month. 

b. Client shall pay the Equipment Purchase Price to NRXR within three (3) business days of the Effective Date.  Any taxes, duties, or other charges incurred by NRXR following delivery of the Equipment shall be payable within ten (30) days of receipt by Client of NRXR’s invoice therefor.

c. In addition to any other fees described herein, NRXR shall be entitled to reasonable out-of-pocket expenses, including the cost of shipping the Equipment to Client.  Any additional charges for services not covered by the Monthly Fee shall be due and payable within thirty (30) days from the date of Client’s receipt of invoice.  In the event any payment under this Agreement shall not be paid within five (5) days of becoming due, the unpaid balance shall accrue interest at the rate of one percent (1%) per month.  If any fault or problem is found under investigation to be due to unauthorized use of the Product, Client shall pay NRXR all reasonable costs and expenses incurred by NRXR in consequence of such investigation, calculated on a time and materials basis at NRXR’s then prevailing rates.  Client shall pay for all applicable taxes, duties, or levies at the then-prevailing rate.  The purchase price and any other charges arising under this Agreement shall be invoiced and be payable in U.S. dollars.

7. Warranties.

a. THE WARRANTIES MADE IN THIS AGREEMENT ARE THE ONLY WARRANTIES MADE BY NRXR WITH RESPECT TO THE PRODUCT. CLIENT AGREES THAT THE EXPRESS OBLIGATIONS AND WARRANTIES MADE BY NRXR IN THIS AGREEMENT ARE IN LIEU OF AND, TO THE FULLEST EXTENT PERMITTED BY LAW, TO THE EXCLUSION OF ANY OTHER WARRANTY, CONDITION, TERM, UNDERTAKING OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, RELATING TO ANYTHING SUPPLIED OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT INCLUDING (WITHOUT LIMITATION) AS TO THE CONDITION, QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR THE PURPOSE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NRXR DOES NOT WARRANT THE FUNCTIONING OF ANYTHING SUPPLIED OR SERVICES PERFORMED HEREUNDER WITH SOFTWARE OR EQUIPMENT NOT PRODUCED BY NRXR, OR THAT THE OPERATION OF ANYTHING SUPPLIED OR SERVICES PERFORMED HEREUNDER WILL BE UNINTERRUPTED OR ERROR FREE.

b. NRXR warrants to Client that it has the right to transfer title of the Equipment to Client.  NRXR’s sole liability under this warranty with respect to the Equipment shall be to obtain any title or authorization necessary to transfer such title to Client.  THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES REGARDING THE EQUIPMENT, AND NRXR DOES NOT MAKE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, REGARDING THE EQUIPMENT, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  Client expressly acknowledges and agrees that warranties regarding patents, materials, workmanship, or use of the Equipment (the “Manufacturer’s Warranty”), if any, are made exclusively by the Manufacturer and not by NRXR and, if made, shall be encompassed within a separate agreement.  Client’s exclusive remedy under Manufacturer’s Warranty shall be as provided therein and shall lie exclusively against and be obtainable only from the Manufacturer, and Client expressly agrees that it shall have no claim or cause of action against NRXR in the event the Manufacturer is for any reason unwilling or unable to perform under the terms of Manufacturer’s Warranty.  

8. HEALTH AND SAFETY WARNINGS.  CLIENT ACKNOWLEDGES AND AGREES THAT THE PRODUCT, IN CONJUNCTION WITH THE EQUIPMENT, IS A VIRTUAL REALITY PLATFORM AND THAT THERE ARE INHERENT RISKS OF PERSONAL INJURY, DISCOMFORT, AND/OR PROPERTY DAMAGE THAT ARE ASSOCIATED WITH VIRTUAL REALITY PLATFORMS AND THE PRODUCT AND THE EQUIPMENT AND THAT SUCH RISKS MAY BE GREATER FOR THE ANTICIPATED USERS OF THE PRODUCT AND THE EQUIPMENT.  CLIENT ACKNOWLEDGES AND AGREES THAT IT SHALL READ, EVALUATE, AND FOLLOW ALL HEALTH AND SAFETY WARNINGS, GUIDELINES AND/OR INSTRUCTIONS WITH RESPECT TO THE PRODUCT AND THE EQUIPMENT.

9. Indemnity.  NRXR shall indemnify, hold harmless, and defend (at its sole expense) Client and its officers, directors, employees, agents, successors, and assigns, from and against claims brought against Client by any third party alleging that Client’s use of the Product, in accordance with the terms and conditions of the Agreement, constitutes infringement or misappropriation of its patent, copyright, trademark, or trade secret rights, and/or third-party claims based on or resulting from NRXR’s breach of its confidentiality or data security obligations under this Agreement.  NRXR will pay damages finally awarded against Client (or the amount of any settlement NRXR enters into) with respect to such claims and any reasonable costs and expenses.

10. Confidentiality. Client and NRXR shall hold, and shall each cause their respective officers, employees, agents, consultants, and advisors to hold (and NRXR shall cause NRXR and its respective officers, employees, agents, consultants, and advisors to hold), in strict confidence and not to disclose or release without the prior written consent of the other party, any and all Confidential Information (as defined herein); provided, that a receiving party may disclose, or may permit disclosure of, Confidential Information (a) to their respective auditors, attorneys, financial advisors, bankers, and other appropriate consultants and advisors who have a need to know such information and are informed of their obligation to hold such information confidential to the same extent as is applicable to the parties hereto and in respect of whose failure to comply with such obligations, Client or NRXR, as the case may be, will be responsible or (b) to the extent Client or NRXR is compelled to disclose any such Confidential Information by judicial or administrative process or, in the opinion of legal counsel, by other requirements of law.  Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made pursuant to clause (b) above, Client or NRXR, as the case may be, shall promptly notify the other of the existence of such request or demand and shall provide the other a reasonable opportunity to seek an appropriate protective order or other remedy, which both parties will cooperate in seeking to obtain.  In the event that such appropriate protective order or other remedy is not obtained, the party whose Confidential Information is required to be disclosed shall or shall cause the other party to furnish, or cause to be furnished, only that portion of the Confidential Information that is legally required to be disclosed.  As used in this section, “Confidential Information” shall mean all proprietary, technical, or operational information, data, or material of one party which has been disclosed by NRXR or its representatives, in written, oral (including by recording), electronic, or visual form to, or otherwise has come into the possession of, the other (except to the extent that such Confidential Information can be shown to have been (i) in the public domain through no fault of such party or (ii) later lawfully acquired from other sources by the party to which it was furnished; provided, however, in the case of (ii) that such sources did not provide such information in breach of any confidentiality obligations).

11. Protected Health Information.  Notwithstanding anything in this Agreement to the contrary, to the extent that information exchanged between NRXR and Client constitutes protected health information (“PHI”, as defined in the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act, and the regulations promulgated thereunder), NRXR shall not use or disclose PHI except as necessary to provide and support the Product and shall not use or disclose PHI in a manner that would violate any law if used or disclosed by Client, except as otherwise permitted by this Agreement or as required by law.  NRXR shall implement reasonable and appropriate safeguards to ensure that PHI is not used or disclosed in any manner inconsistent with this Agreement and to protect the confidentiality, integrity, and availability of any electronic PHI it creates, receives, maintains, or transmits on behalf of Client as required by law.  Client retains any and all rights to the PHI it releases to NRXR.  NRXR agrees that it acquires no title or rights to PHI as a result of this Agreement.  If NRXR and Client enter into a separate business associate agreement, such business associate agreement shall supersede this section in its entirety.

12. LIMITATION OF LIABILITY.  IN NO EVENT SHALL NRXR BE LIABLE TO CLIENT OR ANY USER OF THE PRODUCT OR THE EQUIPMENT FOR PAYMENT OF ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF PROFITS, GOODWILL, BUSINESS OPPORTUNITIES, USE OR REVENUE, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE), IN WARRANTY OR OTHERWISE, RESULTING FROM THE PERFORMANCE OF NRXR’S OBLIGATIONS UNDER THIS AGREEMENT OR CLIENT’S USE OF THE PRODUCT OR THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM PERSONAL INJURY OR DAMAGE TO PROPERTY, EVEN IF NRXR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING THE FOREGOING, NRXR’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY REASON, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL BE LIMITED TO ACTUAL DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID BY CLIENT WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT THAT IS THE SUBJECT OF THE CLAIM.  This Limitation of Liability does not apply to infringement or misappropriation of patent, copyright, trademark, or trade secret rights.

13. Non-Hiring. During the Term and for a period of one (1) year thereafter, neither party shall directly or indirectly, knowingly solicit, hire or otherwise retain, as an employee, consultant or independent contractor, any employee of the other party, within one (1) year of the employee or independent contractor leaving the employ or engagement of the other party, unless previously agreed in writing by the other party.

14. Export/Re-Export Restrictions. Client agrees to comply with all export and re-export restrictions and regulations imposed by the governments of the United States, Canada and/or the country within which the Product and Equipment are shipped by NRXR to Client.

15. Assignment.  Client shall not assign this Agreement, nor any interest therein, or otherwise transfer any rights or obligations under this Agreement.  Any attempted assignment or transfer may result in the immediate termination of this Agreement at NRXR’s option.

16. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given upon (a) a transmitter’s confirmation of a receipt of a facsimile transmission, (b) confirmed delivery of a standard overnight courier or when delivered by hand or (c) the expiration of five (5) business days after the date mailed by certified or registered mail (return receipt requested), postage prepaid, to the parties at the following addresses (or at such other addresses for a party as shall be specified by like notice):

If to NRXR, to:

Neuromersive, Inc.

6913 Camp Bowie Blvd., #173

Fort Worth, Texas 76116

Attn:  Veena Somareddy

Telephone: (682) 233-5646

If to Client, to Client Address.

17. Survival.  The rights and responsibilities of the parties pursuant to Sections 3, 4, 11, 12, 13, 14, 15, 18, 23, 25, 26, and 28 shall survive the expiration or earlier termination of this Agreement.

18. Relationship of Parties.  Nothing contained in this Agreement shall be construed as creating a fiduciary relationship or a partnership, joint venture, agency, trust or other association of any kind, each party hereto being individually responsible only for its own obligations as set forth in this Agreement.

19. No Third-Party Beneficiaries.  Nothing in this Agreement is intended to or shall confer upon any person or entity (other than the parties hereto) any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement, including any user of the Product or the Equipment, and no person or entity shall be deemed a third-party beneficiary under or by reason of this Agreement.

20. Amendment.  No amendments, additions to, alterations, modifications, or waivers of all or any part of this Agreement shall be of any effect, whether by course of dealing or otherwise, unless explicitly set forth in writing and executed by both parties hereto.  If the provisions of this Agreement and the provisions of any purchase order, service order, work statement, or similar order acknowledgment written in connection with this Agreement conflict, the provisions of this Agreement shall prevail.

21. Waiver. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.  The failure of any party to require the performance of any provision of this Agreement shall not affect any party’s right to full performance thereof at any time thereafter.

22. Severability. If any provision of this Agreement or the application of any such provision to any person, entity or circumstance shall be declared judicially to be invalid, unenforceable or void, such decision shall not have the effect of invalidating or voiding the remainder of this Agreement, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting therefor another provision that is legal and enforceable and that achieves the same objective.

23. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one agreement binding on NRXR and Client.

24. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas without giving effect to the conflicts of law principles thereof.

25. Jurisdiction and Waiver of Jury Trial.

a. Any action, suit or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement must only be brought in any federal court located in the State of Texas or any Texas state court, and each party consents to the non-exclusive jurisdiction and venue of such courts (and of the appropriate appellate courts therefrom) in any such action, suit or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such, action, suit or proceeding in any such court or that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.  Process in any such action, suit or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.

b. EACH PARTY ACKNOWLEDGES THAT ANY DISPUTE THAT MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY EXPRESSLY WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT.  THE SCOPE OF THIS WAIVER IS INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS.  EACH PARTY REPRESENTS THAT (a) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (b) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, AND (c) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY.

26. Further Assurances. From time to time, each party agrees to execute and deliver such additional documents and will provide such additional information and assistance as any party may reasonably require to carry out the terms of this Agreement.

27. Joint Drafting and Negotiation. Each of Client and NRXR agrees that they have had an opportunity to participate in the drafting, preparation and negotiation of this Agreement.  Each of Client and NRXR expressly acknowledges such participation and negotiation in order to avoid the application of any rule construing contractual language against the drafter thereof and agrees that the provisions of this Agreement shall be construed without prejudice to the party who actually memorialized this Agreement in final form.

28. Entire Agreement.  This Agreement constitutes the entire agreement between NRXR and Client with respect to the subject matter hereof and supersedes any and all prior representations, warranties, understandings, or agreements, written or oral, with respect to the subject matter hereof.

EXHIBIT A

PRODUCT AND EQUIPMENT

1. XR Therapy System and Software