Version: September 2022
1. Scope | General
1.1 These End User Licence Terms (the “Terms”) apply between Foundation for Research on Information Technologies in Society (“IT’IS”) and the users of IT’IS’s TI Plan (the “Software”) ( the “End User”) and shall form an integral part of any agreement between IT’IS and End User, whether entered into by execution of registration forms or other registration documents by IT’IS and End User, by completion of any click-through or other online process, by email correspondence or in any other form (the “Agreement”). 1.2 IT’IS shall provide the Software to End User free of charge as software as a service in accordance with the Agreement. The Software is provided solely as software as a service, i. e., for browser-supported and Internet-based use via End User’s end devices. IT’IS may, at its sole discretion, subcontract any or all of its obligations under these Terms and any Agreement to third parties. 1.3 Specifications of the Software are included in the current user manual for the Software (the “Manual”). Any other product information sent to End User, if any, such as marketing material, product descriptions, product roadmaps and the like, shall be for informational purposes only and shall not constitute binding declarations by IT’IS. 1.4 The version of these Terms which is applicable at the time concerned shall also apply to all future Agreements between End User and IT’IS without IT’IS being required to refer to these Terms in each individual case. These Terms shall be deemed to be confirmed by End User at the latest when IT’IS grants access to the Software. 1.5 These Terms shall apply exclusively. Any terms and conditions of End User which deviate from, conflict with or supplement these Terms are explicitly waived.
2. End User Account | Updates | Availability
2.1 In order to be able to use the Software in accordance with these Terms, End User shall create a dedicated user account on IT’IS’s website (the “End User Account”) 2.2 IT’IS may carry out necessary updates and upgrades to the Software in order to improve the usability, security or stability of the Software or to extend its features or to ensure its compliance with statutory requirements. Updates and upgrades to the Software shall be provided at IT’IS’s sole discretion. 2.3 IT’IS strives to offer constant availability of the Software but cannot warrant uninterrupted availability thereof. IT’IS offers the Software as a service and therefore has no influence and is not responsible for End User’s Internet access or Internet connection including its availability, bandwidth or any costs and expenses of End User associated therewith.
3. Licence Grant to the Software | Licence Restrictions
3.1 Subject to these Terms, IT’IS hereby grants to End User, during the Registration Term, a non-exclusive, non-transferable, non-sublicensable right and licence to use the software as a service version of the Software on its end devices for research purposes only. 3.2 For the avoidance of doubt End User is always a natural person. 3.3 Except as otherwise expressly provided in these Terms, End User shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, or otherwise generate income from the Software; (b) copy the Software onto any public or distributed network; (c) decompile, reverse engineer or disassemble any portion of the Software, or attempt to discover any source code or other operational mechanisms of the Software; (d) modify, adapt, translate or create derivative works based on all or any part of the Software; (e) use any components of the Software other than together with the Software; (f) modify any proprietary rights notices that appear in the Software or components thereof; (g) use the Software in violation of any applicable laws and regulations or outside of the licence scope set forth herein; (h) configure the Software to collect (aa) any data that falls within the definition of ‘special categories of data’ within the meaning of the EU General Data Protection Regulation or a similar concept; (bb) passwords or other authentication credentials; (cc) any biometric data or genetic data; or (dd) any data relating to a person under the age of sixteen (16) years old (collectively, “Prohibited Data”); or (i) use the Software to (aa) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware, or (bb) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity; (cc) interfere with or disrupt the integrity or performance of third-party systems, or the Software or data contained therein; (dd) attempt to gain unauthorized access to the Software or IT’IS’s systems or networks; or (ee) perform, or engage any third party to perform, authenticated or unauthenticated penetration testing, vulnerability assessments or other security assessments on the Software. 3.4 End User shall not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof in breach of any applicable laws and regulations. In particular, End User and its affiliates shall comply with the sanctions imposed by Swiss Government, the European Union and the United Nations. End User shall, at its own expense, obtain all necessary customs, import, or other governmental authorisations and approvals.
4. Proprietary Rights
IT’IS and its suppliers own and shall retain all proprietary rights, including all copyright, database rights, patent, trade secret, trademark and all other intellectual property rights, in and to the Software and the results of any Services. The Software may only be used by End User as prescribed by the Manual.
5. Use of the Software | Content
5.1 Ownership of and responsibility for all results obtained by End User using the Software (the “Content”) shall fully remain with End User or its respective owner and only End User is liable for the Content. 5.2 End User represents and warrants that it will not introduce any viruses, worms, Trojan horses, malicious code or other harmful or destructive content to the Software.
6. Warranties
6.1 The extent, nature and quality of the services to be performed by IT’IS are determined by the Agreement and the Manual. Any other information or requirements do only form part of the Agreement if and insofar IT’IS and End User so agree in writing or if IT’IS so confirms in writing. Product descriptions, illustrations, test programs, etc. represent mere service specifications but do not constitute guarantees or agreements on certain specifications. In order to be valid, an agreement on a guarantee requires the written confirmation from management personnel of IT’IS. 6.2 End User’s claims for damages for a breach of this warranty are subject to the limitations set forth in clause 14.
7. Maintenance and Support
7.1 End User shall report any defects exclusively via the email support system offered by IT’IS or the support option within the Software. 7.2 IT’IS has no duty whatsoever to remedy and defects within a certain time-frame. Nevertheless, IT’IS will do its best at the sole discretion of IT’IS to rectify defects within reasonable time. 7.3 Under no circumstances shall End User be entitled to obtain the source code of the Software.
8. Legal Defects in the Software
8.1 To the extent that claims are made against End User by third parties alleging the infringement of property rights arising from the use of the Software, End User shall notify IT’IS without undue delay at least in text form (email shall suffice). IT’IS shall at its own discretion fulfil or defend the third-party claims or end the dispute by way of settlement. End User grants IT’IS the sole authority to decide on defence of rights and settlement negotiations. End User shall furnish IT’IS with any powers of attorney which may be required in this regard on a case-by-case basis and End User shall support IT’IS in the defence in any manner which may be reasonably expected. 8.2 IT’IS shall only be liable in respect of the infringement of property rights to the extent that the Software has been used in accordance with these Terms and the Agreement. IT’IS shall not be liable if the Software is modified by End User or third parties or is combined, operated or used with programs or data not provided by IT’IS or approved in advance in writing by IT’IS and third-party claims are derived therefrom. 8.3 If claims are made against IT’IS within the scope of the foregoing provisions in clauses 8.2, End User shall indemnify IT’IS from such claims upon first request.
9. Fees | Payment Terms
9.1 End User’s right to use the Software in accordance with these Terms and the Agreement shall be free of charge.
10. RegistrationTerm | Termination
10.1 The term of the Agreement shall initially be twelve (12) months, starting on the date and the End User has registered with the Software (the “RegistrationTerm”). The Term is not automatically renewed but the End User has to explicitly apply for extension of the Term. 10.2 IT’IS and End User may terminate the Agreement for convenience at any time with two (2) weeks notice. 10.3 Good cause entitling IT’IS to terminate the Agreement without notice for good cause shall include without being limited to (a) End User breaching the use restrictions under clause 3, or (b) End User using the Software in another way than as foreseen in this Agreement and the Manual.
11. Confidentiality
11.1 If IT’IS or End User receive Confidential Information (as defined below), they may only use such Confidential Information to exercise their rights and fulfil their obligations under the Agreement and shall take reasonable measures to avoid unauthorized disclosure or misuse of Confidential Information. They shall not disclose Confidential Information, except for IT’IS to their employees, subcontractors, or professional advisers who have a legitimate need to know the Confidential Information and are legally bound to keep such Confidential Information confidential, and as required to be disclosed by applicable law, or judicial or other governmental or regulatory order. These Terms and the Agreement constitute Confidential Information of IT’IS. 11.2 “Confidential Information” means any information that is directly or indirectly disclosed or made accessible in connection with the Agreement (a) to IT’IS by or on behalf of End User, or (b) to End User by or on behalf of IT’IS, and which is identified as ‘confidential’ or ‘proprietary’ or which, given the nature of the information or circumstances surrounding the disclosure, should reasonably be understood by the recipient to be confidential or proprietary, but does not include information that the recipient can demonstrate it already rightfully knew or possessed, becomes public through no fault of the recipient, is received by the recipient from a third party with the legal right to disclose it, or can be shown to have been independently developed by the recipient without reference to the discloser’s Confidential Information.
12. Data Protection
12.1 IT’IS and End User shall comply with any applicable laws concerning the protection of personal data including but not limited to the EU General Data Protection Regulation. If required by such laws, IT’IS and End User shall enter into a separate written agreement on the processing of personal data.
13. No Set-off | Limitation of Right of Retention | No Assignment
13.1 End User shall not assign any of its rights or obligations under these Terms or under the Agreement without the prior written consent of IT’IS.
14. IT’IS’s Liability
14.1 The End User agrees and acknowledges that the Software is a novel and experimental online tool developed for neuroscientists and brain stimulation experts to determine optimized electrode placement and stimulation conditions for targeting deep brain regions. The Software does not provide binding results and is not a substitute for the expert End User's own calculations of electrode placement and stimulation conditions for targeting deep brain regions. The Software is only intended to assist the expert End User in his/her own calculations. Therefore, the expert End User shall always ascertain the Software's results by doing his/her own calculations. DO NOT ACT SOLELY ON THE RESULTS OF THE SOFTWARE. The expert End User uses the Software and its results at his/her own risk. As a consequence, IT'IS does not give any representations and warranties for the Software and the liability of IT'IS in connection with the Software and its use and application is excluded to the full extent possible under the applicable law. IT'IS is not liable for any damages (including without limitation consequential, incidental, direct, indirect, special or punitive damages, damages for loss of profits, loss of use, business interruption, loss of information or data, or pecuniary loss) resulting from the use of or reliance on the Software. In particular, IT'IS Foundation is not responsible for (a) the correctness, completeness, integrity and accuracy of any data calculated by the Software, (b) any conclusions drawn by the End User or any third party from any simulation, calculation, modelling or other process or operation executed by the Software or by End User using the Software, (c) the technical, scientific, legal and commercial feasibility of any project, product and undertaking of the End User or any third party, and (d) the economic and financial viability of any project, product and undertaking of the End User or any third party. 14.2 By using the Software, the End User agrees to Swiss material law (excluding conflict of law rules) being applicable and the ordinary Swiss courts of Zurich, Canton of Zurich, having exclusive jurisdiction for all disputes arising out of or in connection with the Software and its use.
15. Revision of these Terms
15.1 IT’IS may amend and/or update these Terms with future effect from time to time and as necessary for technical, economic or legal reasons.
16. Applicable Law | Jurisdiction
16.1 These Terms and any Agreement and all rights arising from or in connection therewith shall exclusively be governed by Swiss material law (excluding conflict of law rules) and the ordinary Swiss courts of Zurich, Canton of Zurich, shall have exclusive jurisdiction for all disputes arising out of or in connection with the Software and its use.
17. Written Form | Severability
17.1 Amendments and supplements to these Terms and or the Agreement shall be subject to an acceptance of said Terms or said Agreement by End User. 17.2 Should any provision of these Terms be or become ineffective or invalid in whole or in part, the effectiveness and validity of the other provisions of these Terms shall not be affected. Such ineffective or invalid provision shall be replaced by a provision which comes as close as legally possible to what IT’IS and End User would have agreed, pursuant to the meaning and purpose of the original provision and of these Terms if they had recognised the ineffectiveness or invalidity of the original provision. The foregoing shall also apply to any possible omission in these Terms that was not intended by IT’IS and End User.
18. Miscellaneous
18.1 These Terms and/or any Agreement between IT’IS and End User do not create any company, joint venture, partnership, or any company of any other kind between IT’IS and End User.. 18.2 References to statutory provisions in these Terms shall be for clarification purposes only. Consequently, statutory provisions shall also apply without such clarification provided that they are not directly amended or expressly excluded by these Terms.