IMPACT APPLICATIONS, INC. SERVICES AGREEMENT
Important – Read Carefully. Notice to User:
This Services Agreement (“Agreement”) is a legal document between you or your organization (“Customer”) and ImPACT Applications, Inc. (“ImPACT Applications”). It is important that you read this document before using the Products (as such term is defined herein) and updates and upgrades thereto and any accompanying documentation, including, without limitation printed materials, ‘online’ files, or electronic documentation. The terms and conditions of this Agreement shall govern and control the use of any and all of the Products. By checking the box next to “I have read and accept the Services Agreement” below, or by installing, or otherwise using the Products, you agree to be bound by the terms of this Agreement including, without limitation, the warranty disclaimers, limitation of liability, data usage, and termination provisions below, whether or not you decide to purchase the Products. You agree this Agreement is enforceable like any written agreement negotiated and signed by you or your organization. If you do not agree with the terms and conditions of this Agreement, you should not use the Products and you shall have no right to install, use or otherwise benefit from the Products. By entering into this Agreement, you hereby represent and warrant to ImPACT Applications and its affiliates that you are a duly authorized representative of your organization and that by checking the box next to “I have read and accept the Services Agreement” below you are acting within your authority and creating a legally binding agreement between you or your organization and ImPACT Applications. By checking the box next to “I have read and accept the Services Agreement” below you certify that either (A) your organization is a medical provider, institution of education, sports team or similar organization or (B) you are a licensed healthcare provider in your state, country, province, or territory and you are permitted to use the Products under applicable rules, regulations, and laws. You acknowledge and agree that only such organizations and licensed healthcare providers are permitted to license and use the Products and that any license to the Products is expressly conditioned upon you or your organization maintaining such status throughout the term of the Agreement as further described below.
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the respective meanings assigned to them below: “Configurations” means standard set-up and activation services for the Product. “Customer Materials” means all materials and content, such as logos and Customer’s standard operating procedures, if any, provided to ImPACT Applications by Customer for incorporation into the Product. “Customer Promotional Materials” means the promotional materials related to the Product that are created or developed by Customer. “Customer Site” means a web site owned or controlled by Customer through which Customer and Test Takers access the Product. “Documentation” means user documentation for the Product available at ImPACT Applications’ web Site or sent to the Customer in print, as such documentation may be amended by ImPACT Applications from time to time. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, each as amended. “ImPACT Applications Promotional Materials” means the promotional materials related to the Product that are created or developed by ImPACT Applications. “ImPACT Applications Site” means one or more web sites owned or controlled by ImPACT Applications or an affiliate of ImPACT Applications through which Customer or Test Takers may obtain access to the Product. “Person” or “person” means any corporation, partnership, limited liability company, joint venture, other entity, or natural person. “Product” means the ImPACT Applications products and services available from time-to-time on or through the ImPACT Applications Site, as such Products are described in greater detail in the Documentation, together with any Updates thereto. “Product Infrastructure” means the hardware, software, and other equipment that ImPACT Applications uses in connection with its hosting of the Product for Customer hereunder. “Promotional Materials” means the Customer Promotional Materials and ImPACT Applications Promotional Materials. “Terms of Use” means the terms and conditions of use for the Product, including ImPACT Applications’ Privacy Policy and Terms of Use accessible at www.impacttest.com, which terms and conditions of use shall be accessible to users of the Product through a login or other access screen, as such terms and conditions of use are amended by ImPACT Applications from time to time. “Territory” means the country in which Customer is located and the Products are available and approved for use. “Test Taker” means people other than Customer who are allowed by Customer to access the Product via the ImPACT Applications Site or a Customer Site. “Trademark and Logo Usage Guidelines” means the quality levels and guidelines that ImPACT Applications maintains in connection with the ImPACT Applications Marks (as identified on Schedule B hereto). “Update” means any update, upgrade, or new release for the Product that ImPACT Applications may make available to Customer from time to time hereunder.
2. PRODUCT ACCESS; RESTRICTIONS; EXTENSION OF AGREEMENT TO SUBSEQUENT PRODUCTS
2.1 Limited License. Subject to Customer’s compliance with the terms and conditions of this Agreement, ImPACT Applications hereby grants to Customer, during the Term, a non-exclusive, non-transferable (except as expressly permitted hereunder), license: (a) to access the Product, to use the Product in the Territory, and to authorize Test Takers to access and use the Product, via the ImPACT Applications Site or a Customer Site; (b) to use the ImPACT Applications Marks, including any goodwill therein, in the Territory and solely for use upon or in connection with the Product and for the purpose of promoting, advertising, or marketing the Product in accordance with the Trademark and Logo Usage Guidelines; (c) to use the ImPACT Applications Promotional Materials, in the Territory and solely for the purpose of promoting, advertising, or marketing the Product in accordance with the Trademark and Logo Usage Guidelines; and (d) to grant sublicenses, to access and use the Product under the same terms and conditions set forth in this Agreement. Customer acknowledges and agrees that any tests licensed under this Agreement that are not used by the expiration or earlier termination of this Agreement will expire such that Customer will not be entitled to use such tests. If a license to a test expires under this Section 2.1, Customer will not be entitled to any refund, pro-ration, rebate, or other compensation from ImPACT Applications. Customer acknowledges and agrees that unless a particular Product is available in the official language of the Territory other than English, the Product will be provided in English language only and that support for the Product will be provided in English language only during ImPACT Applications’ Normal Business Hours unless otherwise agreed to by the parties in writing.
2.2 Authority. Customer represents and warrants to ImPACT Applications on the Effective Date and throughout the Term that Customer and its personnel are duly licensed and registered within the Territory and permitted and authorized by all applicable laws, rules, and regulations to access and use the Product in the Territory. Customer acknowledges and agrees that: (a) ImPACT Applications shall have the right to immediately terminate this Agreement, with or without notice and in ImPACT Application’s sole and exclusive determination, in the event Customer and its personnel are no longer permitted to access and use the Product in the Territory and (b) Customer, its personnel, representatives, shareholders, agents, directors, and affiliates shall indemnify and hold harmless ImPACT Applications, its affiliates, directors, employees, shareholders, and agents for any threat of claim, actual claim, and/or direct or indirect damages arising from Customer’s breach of this Section 2.2.
2.3 Terms of Use. All access to and use of the Product, Documentation, ImPACT Applications Marks, and ImPACT Applications Promotional Materials by Customer and Test Takers, as the case may be, shall be in accordance with the Terms of Use. Prior to using or being provided access to the Product, each Test Taker shall first have assented to the Terms of Use in some reasonable and verifiable manner as approved by ImPACT Applications. Customer shall not take any action that would mask, delete, or otherwise alter the Terms of Use or any other disclaimers or notices that ImPACT Applications may include in the Product from time to time. Customer agrees to (i) promptly notify ImPACT Applications should Customer become aware that any Test Taker has violated or is violating the Terms of Use; and (ii) reasonably cooperate with ImPACT Applications in any actions that ImPACT Applications may elect to take with respect to any Test Taker who violates the Terms of Use, including, without limitation, terminating such Test Taker’s access to the Product. Prior to using or being provided access to the Product, each Test Taker shall have either assented to the Terms of Use or, if applicable, provided Customer the consent required under the Children’s Online Privacy Protection Act of 1998, as amended (“COPPA”). Customer shall not take any action that would mask, delete, or otherwise alter the Terms of Use or any other disclaimers or notices that ImPACT Applications may include in the Product from time to time. Customer shall be and remain primarily liable for any breach of the Terms of Use or failure to secure the required COPPA consent from a Test Taker prior to using the Product.
2.4 Configurations. ImPACT Applications shall prepare and incorporate Configurations in order to enable access to the Product. ImPACT Applications and its licensors own and shall continue to own all right, title, and interest in and to the Product and such Configurations after any Configurations are incorporated therein; provided however that Customer or its licensors shall own and continue to own all right, title, and interest in and to the Customer Materials. Customer hereby grants to ImPACT Applications a royalty-free license to prepare the Configurations and to incorporate said Configurations into the Product as permitted hereunder.
2.5 Proprietary Notices. ImPACT Applications shall prepare and incorporate Configurations in order to enable access to the Product. ImPACT Applications and its licensors own and shall continue to own all right, title, and interest in and to the Product and such Configurations after any Configurations are incorporated therein; provided, however, that Customer or its licensors shall own and continue to own all right, title, and interest in and to the Customer Materials. Customer hereby grants to ImPACT Applications a royalty-free license to prepare the Configurations and to incorporate said Configurations into the Product as permitted hereunder.
2.6 Conditions of Use. In order to carry out the rights granted in Section 2 hereto, Customer is authorized to: (i) use the ImPACT Applications Marks in such style, appearance, and manner as ImPACT Applications shall, in its sole discretion, specify or approve in writing and in strict accordance with all of the applicable Trademark and Logo Usage Guidelines; and (ii) create or develop Customer Promotional Materials; provided, however, that Promotional Materials may only be used in connection with the Product pursuant to this Agreement. ImPACT Applications shall retain all right, title, and interest in and to (including copyrights and trademarks) the ImPACT Applications Marks and ImPACT Applications Promotional Materials, and Customer grants to ImPACT Applications all right, title, and interest in and to any Customer Promotional Materials related to the Product. Customer is expressly prohibited from modifying the ImPACT Applications Marks or ImPACT Applications Promotional Materials unless expressly agreed to in writing and such modifications are expressly approved in writing by ImPACT Applications. Customer will not use the ImPACT Applications Marks in conjunction or association with any other trademark, trade name, or logo, or place the ImPACT Applications Marks in close proximity to any other name, mark, or logo other than the name, trademarks, and related designs of Customer without the express prior written approval of ImPACT Applications, provided that such placement is carefully done so as to avoid any potential for confusion as to the source of the Product or Promotional Materials and to clearly distinguish the Product or Promotional Materials as originating from ImPACT Applications. Customer will comply as soon as reasonably practicable (but in any event within twenty (20) days) with all reasonable instructions furnished by ImPACT Applications from time-to-time with respect to the style, appearance, and manner of use of the ImPACT Applications Marks on the Product or Promotional Materials, including instructions to revise the style, appearance, or manner of use as ImPACT Applications may specify from time to time. Whenever the ImPACT Applications Marks are used on or in connection with the Product or Promotional Materials, Customer shall use the trademark symbol “™” or the registration symbol “®”, as appropriate. Customer shall display all other notices on or in connection with the Product or Promotional Materials and otherwise, as are or may be required by any applicable laws and regulations. ImPACT Applications is authorized to list Customer in or on ImPACT Applications Promotional Materials, including on ImPACT Applications’ web site, as a licensed provider of services employing the Product. An ImPACT Applications Mark usage guide is attached to this Agreement at Schedule B.
2.7 Other License Restrictions. Customer shall not make any representations, warranties, conditions, or guarantees with regard to the Product that are inconsistent with or in addition to those made by ImPACT Applications to Customer hereunder. In addition, except as expressly authorized herein, Customer shall not authorize Test Taker to: (i) copy or modify the Product for any purpose; (ii) reverse engineer, decompile, modify, translate, disassemble, or discover the source code for all or any portion of the Product; or (iii) distribute, disclose, market, rent, lease, or otherwise transfer the Product or Documentation to any other person, except as set forth in Section 2.1 hereto.
2.8 Reservation of Rights. Except for the licenses and rights expressly granted under this Agreement, no licenses or rights are granted by either party to the other party hereunder, by implication, estoppel, or otherwise. All such other licenses and rights are reserved unto ImPACT Applications or Customer, as applicable. ImPACT Applications expressly reserves the right, in its sole discretion and in the Territory and throughout the world, to: (i) sell or license the Product directly to any third party; (ii) use the ImPACT Applications Marks for the purpose of promoting, advertising, or marketing the Product; and (iii) grant promotional, advertising, and/or marketing rights to other persons. All Test Takers must be located within the Territory.
2.9 Promotional Activities. Customer shall have the right to create and distribute Customer Promotional Materials for the Products resold pursuant to this Agreement. Customer may create Customer Promotional Materials and, subject to the Terms of Use, modify ImPACT Applications Promotional Materials; provided, however, such ImPACT Applications Promotional Materials may only be used in connection with Products resold pursuant to this Agreement. ImPACT Applications shall retain all right, title, and interest in and to (including copyrights and trademarks) the ImPACT Applications Promotional Materials. Customer shall be responsible for any modifications to the ImPACT Applications Promotional Materials. Customer will provide ImPACT Applications with a copy of any Promotional Materials created or developed pursuant to this Section 2.9 for ImPACT Applications’ approval prior to use or distribution. ImPACT Applications agrees to provide Customer with written notice of approval or rejection of such materials within ten (10) calendar days of ImPACT Applications’ receipt of such materials. Customer agrees that such promotional or advertisement activities shall comply with the Terms of Use. Customer grants ImPACT Applications all right, title, and interest in and to any modifications to the ImPACT Applications Promotional Materials.
2.10 Product Representations. Customer shall make no, and shall indemnify ImPACT Applications for and against any and all claims arising out of, representations or warranties concerning quality, performance, or other characteristics of the Products other than those which are consistent in all respects with, and do not expand the scope of, the representations and warranties made by ImPACT Applications for such Products. Customer may not write or otherwise create any additional Product Documentation or authorize the creation thereof without ImPACT Applications’ express prior written consent. The only Product Documentation that Customer is authorized to distribute is official ImPACT Applications Product Documentation produced by ImPACT Applications. Customer agrees that its obligation to indemnify ImPACT Applications for and against any and all claims arising out of any warranty that is inconsistent with or additional to the warranties contained in this Agreement shall not be affected, reduced, or impaired by the fact that Customer is required by local mandatory law to provide such inconsistent or additional warranty.
2.11 Ownership of Customer Data. The ImPACT Applications system will aggregate and generate data relating to Test Takers that will relate to medical information such as age, height, weight, prior injuries, and test results from using the Product and such other information as ImPACT Applications may determine from time-to-time would be useful in evaluating or improving the performance of the Product (the “Customer Data”). Customer is the sole exclusive owner of the Customer Data. ImPACT Applications shall be permitted to use aggregated, de-identified Customer Data, for internal and external evaluation purposes, provided that such information does not identify an individual or the Customer and there is no reasonable basis to believe that the information can be used to identify an individual or the Customer. Any use of Customer Data by ImPACT Applications shall comply with all applicable rules, laws, and regulations regarding data protection and privacy.
2.12 Government Approvals. Customer shall, at its expense, obtain all registrations, licenses, and permits required to perform its obligations, pay all taxes and fees due in connection therewith, and provide ImPACT Applications with such documentation as ImPACT Applications may request to confirm Customer’s compliance with this Section 2.12 and agrees that it shall not engage in any course of conduct that, in ImPACT Applications’ reasonable belief, would cause ImPACT Applications to be in violation of the laws of any jurisdiction.
2.13 Material Breach. Any breach of any of the provisions of this Section 2 by Customer shall be deemed a material breach of this Agreement.
2.14 Applicability of Agreement to All ImPACT Applications Products and Pricing Changes. Customer acknowledges ImPACT Applications may offer additional Products during the Term of this Agreement (each a “Subsequent Product” and collectively, the “Subsequent Products”). Customer and ImPACT Applications acknowledge and agree Subsequent Products may be licensed by Customer, subject to all terms and conditions of this Agreement, without a formal written modification of this Agreement or the execution of a separate contract on the condition that Subsequent Products and pricing terms are described in a writing by ImPACT Applications and acknowledged by Customer. Such a writing and acknowledgement may include email exchanges, an online ordering system or portal, or any other means that is mutually acceptable by the parties without any need to reference this Agreement or any amendment thereto. Performance subsequent to any acknowledgement or writing as stated herein shall constitute acceptance. ImPACT Applications may also amend Schedule A consistent with the terms of this Agreement without a written modification of this Agreement, provided that any modifications to Schedule A are provided to Customer in a manner consistent with this Section. Upon communication to customer of revisions to Schedule A, said revisions shall merge into and fully become part of this Agreement without need for a separate acceptance or novation.
3. PRODUCT INFRASTRUCTURE
3.1 Obligations of ImPACT Applications. Subject to Customer’s compliance with the terms and conditions of this Agreement, ImPACT Applications shall be responsible for providing and maintaining the Product Infrastructure. The Product Infrastructure is subject to modification by ImPACT Applications from time to time for purposes such as adding new functionality, maximizing operating efficiency, and upgrading hardware and software. Customer understands and acknowledges that such modifications may require changes to Customer’s internet access and telecommunications infrastructure to maintain Customer’s desired level of performance. ImPACT Applications will provide industry standard web hosting and connectivity. Customer acknowledges and agrees that downtime may occur for systems maintenance, including without limitation diagnostics, upgrades, and operations reconfiguration and that unscheduled downtime may occur as a result of forces beyond the immediate control of ImPACT Applications including, but not limited to, hardware failures, electrical outages, or failures or outages caused by Customer’s network or internet service provider. 3.2 Obligations of Customer; Internet Access and Telecommunications Services. Except for the Product Infrastructure, which will be provided by ImPACT Applications, Customer shall be responsible for obtaining and maintaining all hardware, software, equipment, and other items required in connection with Customer’s access to and use of the Product as contemplated hereunder, including, without limitation, all hardware, software, equipment, and other items required to develop and maintain the Customer Site functionality necessary to facilitate access to the Product. Customer at its expense shall be responsible for obtaining internet access and/or telecommunications services, or upgrading Customer’s existing internet access or telecommunications services, to allow access to the Product by Customer and Test Takers. ImPACT Applications shall not be responsible for interruptions in Customer’s use of the Product caused by such providers or interruptions in the service provided by such providers.
4. TEST ACCESSIBILITY; SERVICE; REPORTS; USER’S GUIDE; UPDATES
4.1 Test Accessibility; Service. A description of how to access the Products, ImPACT Applications technical support, and report generation is set forth on Schedule A.
4.2 Updates. ImPACT Applications shall provide all Updates to Customer as they are released generally by ImPACT Applications to all of its customers. Any and all Updates offered by ImPACT Applications to its customers during the Term shall be provided to Customer free of charge.
5. FEES AND PAYMENTS; TAXES; LATE PAYMENTS
5.1 Product Fees – License. In consideration of the license rights and services and services provided by ImPACT Applications hereunder in accordance with this Agreement, Customer will pay ImPACT Applications the applicable Product Fees within thirty (30) calendar days of receipt of an invoice. Current fees for the Products are set forth on Schedule A (the “Product Fees”). All Product Fees shall be paid in United States Dollars. ImPACT Applications shall electronically invoice Customer for all Product Fees due hereunder, and it is Customer’s sole responsibility to update ImPACT Applications regarding any changes in Customer’s electronic contact information. All undisputed Product Fees due to ImPACT Applications shall be paid by Customer in full without right of set-off or deduction. Customer will notify ImPACT Applications of any disputed Product Fees within five (5) calendar days of receipt of the applicable invoice. Thereafter, the parties will promptly coordinate, exercise good faith efforts to resolve the disputed amount, and arrange for the expeditious payment of any Product Fees owed as part of such resolution, if any. In the event all amounts due to ImPACT Applications are not paid when due, ImPACT Applications shall have the right, in its sole and absolute discretion, to suspend Customer’s access to the Product until payment is remitted, subject to ImPACT Applications’ compliance with all applicable national, federal, state, provincial and local rules, laws, and regulations regarding data protection, data retention, and data privacy of Customer Data. Failure to pay undisputed Product Fees as set forth above shall constitute a material breach of this Agreement and shall subject Customer to termination of this Agreement in accordance with Section 8.
5.2 Product Fees;. The Product Fees shall apply only to Products and not to any other goods or services ImPACT Applications may offer, including without limitation, separate modules, professional services, or third-party products offered by ImPACT Applications from time to time, all of which ImPACT Applications may, in its sole discretion, separately offer and price. ImPACT Applications may offer special promotions or discounts on Products from time to time and as a result, may amend pricing of the promotional or discounted Products upon thirty (30) days prior written notice to Customer.
5.3 Fee Increases. ImPACT Applications may, upon sixty (60) days prior written notice to Customer, increase the Product Fees charged to Customer hereunder, which notice may be in the form of a general notification, such as a banner or popup within the Product, a mass email, or other means that ImPACT Applications deems practicable.
5.4 Taxes. To the extent applicable, Customer shall be responsible for paying all sales, use, value-added, and other similar taxes in connection with the Product and services provided hereunder, except for taxes assessed, levied, or imposed based upon ImPACT Applications’ property or income. ImPACT Applications may elect to include said taxes, duties, and charges as separately itemized charges in its invoices to Customer hereunder.
5.5 Late Payments. If any amounts due to ImPACT Applications hereunder are not paid when due in accordance with Section 5.1, ImPACT Applications shall have the right, in its sole and absolute discretion, to: (i) immediately terminate this Agreement by delivering written notice thereof to Customer; (ii) immediately suspend Customer’s access to the Product, including the ability to access the Product to view and download previous test results; and (iii) charge Customer interest on such late payment, which shall accrue interest from the first day following the due date until paid in full at the lesser of one and one-half percent (1 1/2%) per month or the maximum rate permitted by law.
6. WARRANTIES AND LIMITATIONS OF LIABILITY
6.1 Warranty. ImPACT Applications warrants that the Product will operate in substantial conformance with the Documentation. Customer must notify ImPACT Applications in writing, within ten (10) calendar days following the date on which Customer is first given access to the Product, of any failure of Product to operate in substantial conformance with the Documentation. Customer must also notify ImPACT Applications in writing, within ten (10) days following the date of performance of any services by ImPACT Applications hereunder, of any failure by ImPACT Applications to perform said services in a professional manner and in accordance with the terms and conditions of this Agreement. ImPACT Applications’ sole obligation and Customer’s sole remedy with respect to any failure of the Product to substantially conform to the specifications therefor, or of any failure of ImPACT Applications to perform services hereunder in a professional manner and in accordance with the terms and conditions of this Agreement, is for ImPACT Applications to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for Customer to terminate this Agreement upon written notice to ImPACT Applications and receive reimbursement of any Product Fees paid during the Initial Term.
6.2 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 6.1, IMPACT APPLICATIONS DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE PRODUCT, THE PRODUCT INFRASTRUCTURE, OR ANY OTHER MATTER COVERED BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IMPACT APPLICATIONS DOES NOT WARRANT THAT THE PRODUCT OR THE PRODUCT INFRASTRUCTURE WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR FREE, OR THAT ALL FAILURES OF THE PRODUCT TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. THE PRODUCT AND THE PRODUCT INFRASTRUCTURE ARE WARRANTED ONLY TO CUSTOMER, AND CUSTOMER SHALL NOT EXTEND ANY WARRANTIES OR MAKE ANY REPRESENTATIONS FOR OR ON BEHALF OF IMPACT APPLICATIONS OR IMPACT APPLICATIONS’ LICENSORS TO ANY OTHER PERSONS.
6.3 Limitations of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR LOST PROFITS, REVENUES, OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, DIMUNITION IN VALUE, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, ENHANCED, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, CLAIMS RELATED TO DIAGNOSTIC ACCURACY AND/OR MEDICAL MALPRACTICE), REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES OR WHETHER SUCH DAMAGES WERE FORESEEABLE. EXCEPTING INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND THE SPECIFIC OBLIGATIONS OF IMPACT APPLICATIONS UNDER SECTION 7.1, THE AGGREGATE LIABILITY OF IMPACT APPLICATIONS FOR ANY AND ALL CLAIMS ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER SHALL NOT EXCEED THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH ANY SUCH CLAIM FIRST ARISES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
6.4 Consumer Protection Laws. THE PRODUCT IS A BUSINESS PRODUCT, THE APPLICATION OF WHICH IS COMMERCIAL, RATHER THAN CONSUMER-ORIENTED, IN NATURE, REGARDLESS OF THE USE BY ANY PERSON OR ENTITY. IN EXECUTING THIS AGREEMENT, THE PARTIES RECOGNIZE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THAT CONSUMER PROTECTION LAWS IN ANY APPLICABLE TERRITORY SHALL NOT APPLY.
6.5 Acknowledgement. The parties acknowledge that the limitations and disclaimers set forth in this Agreement were an essential element in setting consideration under this Agreement.
7. INFRINGEMENT INDEMNIFICATION
7.1 IP Indemnification by ImPACT Applications. ImPACT Applications hereby agrees to indemnify and hold harmless Customer from and against all damages, settlement amounts, costs, and expenses (including reasonable attorneys’ fees) that Customer may be required to pay to third parties to the extent such damages, settlement amounts, costs, and expenses are directly attributable to claims that the Product infringes or misappropriates a U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, except such claims due to: (i) a breach by Customer of any provision of this Agreement; (ii) any Customer Materials; or (iii) use of the Product in combination with any software, hardware, or other equipment not provided by ImPACT Applications where the infringement or misappropriation would not have occurred but for such combination. Notwithstanding anything stated herein to the contrary, in no event shall ImPACT Applications be required to indemnify Customer in an amount or amounts, in the aggregate, in excess of the fees and payments ImPACT Applications has received hereunder.
7.2 Additional Obligation of ImPACT Applications. In the event Customer is enjoined or otherwise prohibited, or in ImPACT Applications’ opinion is reasonably likely to be enjoined or otherwise prohibited, from using the Product as a result of any claim for which ImPACT Applications is required to indemnify Customer under Section 7.1 above, ImPACT Applications, at its own expense and option, shall, in addition to fulfilling its obligations described in Section 7.1, promptly: (i) procure for Customer the right to continue using the Product; (ii) modify the Product so that it becomes non-infringing without materially altering its capacity or performance; (iii) replace the Product with a product that is reasonably equivalent in capacity and performance but is non-infringing; or, if none of the foregoing remedies is available to ImPACT Applications on commercially reasonable terms; (iv) require Customer to cease using the Product and repay to Customer any prepaid fees and other amounts paid by Customer to ImPACT Applications hereunder.
7.3 Exclusive Remedy. Sections 7.1 and 7.2 state the entire obligation of ImPACT Applications and the exclusive remedy of Customer with respect to any actual or threatened claim that the Product, or use thereof by Customer or any Test Taker, infringes or misappropriates the patent, copyright, trademark, trade secret, or other intellectual property rights of any person.
8. TERM AND TERMINATION
8.1 Term. The initial term of this Agreement (the “Initial Term”) shall be one year from the Effective Date. This Agreement, and any amendments to Schedule A as set forth in Section 2.16, shall automatically renew for additional identical one-year periods (each a “Renewal Term” and the Initial Term and any Renewal Term(s) are collectively referred to as the “Term”) under the then-current fee schedule for the Products and services, a copy of which will be provided to Customer upon request, unless Customer, at least thirty (30) business days prior to the end of the applicable Term, provides ImPACT Applications with notice that this Agreement will expire at the end of the applicable Term. As of the Effective Date any and all prior agreements related to the licensing of the Products between Customer and ImPACT Applications shall be terminated.
8.2 Termination. Subject to Section 5 of this Agreement, either party shall have the right to immediately terminate this Agreement by delivering written notice thereof to the other party if the other party fails to perform or comply with any material term or condition of this Agreement and does not cure such failure within thirty (30) days following its receipt of written notice thereof from the other party. ImPACT Applications may terminate this Agreement immediately if (i) Customer is declared insolvent or bankrupt by a court of competent jurisdiction, (ii) if a voluntary or involuntary petition in bankruptcy is filed in any court of competent jurisdiction against Customer, (iii) Customer makes or executes an assignment of substantially all of its assets for the benefit of creditors, or (iv) substantially all of Customer’s assets are seized or attached. Additionally, Customer may terminate this Agreement at any time with or without cause upon providing ImPACT Applications at least sixty (60) days prior written notice pursuant to Section 9.10. If, as a result of a change in law or regulation or a judicial or administrative interpretation, the performance by either party hereto of any provision of this Agreement should jeopardize the licensure of Customer, its participation Medicare, Medicaid, Blue Cross, or other government reimbursement or payment programs, its exemption from taxation under Internal Revenue Code Section 501(c)(3) or its full accreditation by the Joint Commission, or if it should constitute a violation of any statute, regulation, or ordinance, Customer may request that this Agreement be renegotiated to eliminate the jeopardy and, if agreement is not then reached, terminate this Agreement. In the event ImPACT Applications receives formal or informal notice or, in ImPACT Applications’ sole judgment, is about to receive formal or informal notice from any regulatory or governmental body that use of any Product in the Territory will be suspended ImPACT Applications may (i) immediately and without prior notice suspend and/or terminate Customer’s access to such Product and (ii) shall refund Customer a pro rata portion of the Product Fees actually paid to ImPACT Applications during the twelve (12) month period immediately preceding the date on which ImPACT Applications suspends or terminates access to the Product.
8.3 Effect of Termination. Upon the earlier of the expiration or termination of this Agreement: (i) all license rights of Customer under this Agreement shall automatically and immediately cease; (ii) Customer shall immediately cease all uses of the Product; (iii) Customer shall immediately delete all computer programs and files of ImPACT Applications from its computer systems and return to ImPACT Applications or destroy all Documentation, training materials, and/or Promotional Materials in its possession or control and shall certify in writing within ten (10) days from the date of such termination or expiration that such deletions, returns, or destructions have taken place; (iv) Customer shall immediately cease any and all use of the ImPACT Applications Marks and the Promotional Materials, including removing the ImPACT Applications Marks and the Promotional Materials from any website Customer operates; and (v) Customer shall return or destroy all Promotional Materials within thirty (30) days following termination or expiration, and shall certify having done so in writing. Customer shall no longer have any right or ability to market or license any of the Products, or to provide support related to the Products or offer training related to the Products. Customer agrees upon the effective date of such termination to pay all undisputed sums due to ImPACT Applications, promptly cooperate with ImPACT Applications to resolve any disputed sums per Section 5.1, return all proprietary information to ImPACT Applications. The following shall survive the expiration or sooner termination of this Agreement: the provisions of Sections 6 (Warranties and Limitations of Liability), 7 (Infringement Indemnification), 8 (Term and Termination), and 9 (General); any payment obligations of the parties hereunder accruing prior to the date of such expiration or termination; and any other provisions herein expressly surviving such expiration or termination or necessary to interpret the respective rights and obligations of the parties hereunder.
9. GENERAL
9.1 Independent Contractors. In making and performing this Agreement, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer, franchisee, or partner of the other party for any purpose.
9.2 Force Majeure. In the event either party is unable to perform its obligations under the terms of this Agreement (other than the obligation to pay amounts due and owing hereunder) because of acts of God, strikes, equipment, or transmission failure or other causes reasonably beyond its control, such party shall not be liable to the other party for any damages resulting from such failure to perform or otherwise from such causes.
9.3 Governing Law. This Agreement and its subject matter shall be governed in accordance with the laws of the State of Delaware without regard to the choice of law or conflict of laws principles contained therein. All controversies arising hereunder shall be brought in a court of competent subject matter jurisdiction located in the State of Delaware. The parties hereby consent to the exclusive jurisdiction of any court having competent subject matter jurisdiction located in the State of Delaware and hereby agree to waive any claim or defense of inconvenient forum or governmental immunity. The parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. In any suit or proceeding between the parties relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys and other professionals incurred in connection with the suit or proceeding, including costs, fees, and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.
9.4 Public Statements. Either party may disclose the existence of this Agreement, but shall not represent to any third party any positions, statements, intentions, terms of this Agreement, or other actions on behalf of the other. ImPACT Applications is authorized to use Customer’s name, trademark, or service marks or issue press releases and similar public statement regarding this Agreement and Customer’s use of the Product.
9.5 Confidentiality. The parties (each, a “Recipient”) agree to use all information concerning the other party (each, a “Discloser”) and the Discloser’s respective subsidiaries and affiliates furnished by or on behalf of the Discloser hereunder (collectively, the “Confidential Information”) solely for the purpose of the transactions contemplated hereby. The Confidential Information will be kept confidential by the Recipient and its agents unless such Confidential Information: (i) is required to be disclosed by law; (ii) is disclosed pursuant to the Discloser’s prior written consent; or (iii) otherwise becomes non-confidential as described below. Upon termination of this Agreement, the Recipient will return all Confidential Information as may be requested by the Discloser. The term “Confidential Information” shall not be deemed to include information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of the Recipient, generally known or available to the public; (ii) is known by the Recipient at the time of receiving such information as evidenced by its records created prior to the date of this Agreement and is not accompanied by a duty of confidentiality; (iii) is hereafter furnished to the Recipient by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by the Recipient without any breach of this Agreement and without use of or reference to the Confidential Information; or (v) is the subject of a written permission to disclose provided by the Discloser.
9.6 THIS SECTION 9.6 APPLIES ONLY TO CUSTOMERS IN THE UNITED STATES. Privacy Adherence. ImPACT Applications understands that Customer might be a “covered entity” as defined by HIPAA. In carrying out its obligations in accordance with this Agreement, ImPACT Applications may have access to protected health information of Customer patients (“PHI”), thereby creating a Business Associate relationship between Customer and ImPACT Applications. In compliance with HIPAA, the parties are committed to complying with the Standards for Privacy of Individually Identifiable Health Information (the “Privacy Rule”) promulgated under HIPAA, and ImPACT Applications has agreed to abide by the terms and conditions of this Section 9.6 governing the use of PHI. Unless otherwise defined in this Section 9.6, capitalized terms shall have the meaning established by 45 CFR §§ 160.103 and 164.501. ImPACT Applications may use or disclose PHI in accordance with this Section 9.6, provided such use or disclosure by Customer would not violate the Privacy Rule. ImPACT Applications shall comply with the requirements of the Privacy Rule related to PHI. Specifically, ImPACT Applications shall:
i. Not use or further disclose PHI other than as permitted or required by this Section 9.6 or as required by law (as such term is defined by the Privacy Rule);
ii. Use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by this Section 9.6;
iii. Report to Customer any use or disclosure of the PHI not provided for by this Section 9.6 of which ImPACT Applications becomes aware;
iv. Mitigate, to the extent practicable, any harmful effect that is known to ImPACT Applications of a use or disclosure of PHI not permitted by this Section 9.6;
v. Make PHI available in accordance with 45 CFR § 164.524;
vi. Make available for amendment and incorporate any amendments to PHI in accordance with 45 CFR § 164.526;
vii. Make available the information required to provide an accounting of disclosures in accordance with 45 CFR § 164.528;
viii. Make ImPACT Applications’ internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received on behalf of, Customer available to the United States Secretary of Health and Human Services for purposes of determining Customer’s compliance with the Privacy Rule. Upon written request from Customer or an authorized Data Owner following expiration of this Agreement, ImPACT Applications shall destroy or cause to be destroyed all PHI received from, or created or received on behalf of Customer in ImPACT Applications’ possession or under ImPACT Applications’ control, subject to (a) ImPACT Applications’ internal backup data retention policies and (b) except where such destruction is (x) not permitted under applicable law, regulation, court order, subpoena, or similar legal process or (y) otherwise not feasible. If PHI is retained pursuant to clauses (a) and (b) in the previous sentence, ImPACT Applications will extend protections of this Section 9.6 to the retained data and limit further uses and disclosures to those purposes that make return or destruction infeasible. For purposes of this Agreement, “Data Owner” means an individual or legal entity that holds ownership rights with respect to a given set of Customer Data, or that is otherwise legally permitted to view and request the deletion or modification of such Customer Data.
9.7 Third Party Beneficiaries. Test Takers are not and will not be deemed to be third-party beneficiaries of this Agreement, or to have any contractual relationship with ImPACT Applications by reason of this Agreement. Customer hereby agrees to indemnify and hold harmless ImPACT Applications from any and all damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by ImPACT Applications or its affiliates in connection with any claims brought by Test Takers against ImPACT Applications or its affiliates that arise from or in connection with the Product or any other matter covered by this Agreement.
9.8 Insurance.9.8 Insurance. ImPACT Applications shall maintain for the Term of this Agreement general liability insurance with a combined single limit of at least One Million Dollars (US$1,000,000.00) for any claim arising out of a single occurrence and cyber liability insurance with a limit of at least One Million Dollars (US $1,000,000.00) for any claim arising out of a single occurrence.
9.9 No Medical Advice. The Product and the results obtained from use of the Product do not constitute medical advice. Customer and all Test Takers should use the data received as a result of using the Product to consult with qualified medical personnel. The Product is only one component of a concussion management treatment protocol and must be used in combination with the advice of qualified medical personnel.
9.10 Miscellaneous. Customer may not assign any of its rights or privileges, or delegate any of its duties or obligations hereunder, in whole or in part, by operation of law or otherwise, to any third party without the prior written consent of ImPACT Applications. Customer’s merger or consolidation with another entity or health care system shall not be considered an assignment requiring the prior written consent of ImPACT Applications, provided that the surviving entity assumes all of Customer’s obligations hereunder without qualification or condition. This Agreement shall be freely assignable by ImPACT Applications upon thirty (30) days prior written notice to Customer. Any attempted assignment or delegation of this Agreement or any duties or obligations hereunder in violation of the foregoing limitations shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. All notices required to be in writing shall be delivered by hand, sent by recognized overnight courier (such as Federal Express or UPS), electronic mail, or mailed by certified or registered mail, return receipt requested, postage pre-paid, addressed to the parties set forth herein. This Agreement, including all schedules attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. Except as expressly provided herein, this Agreement may not be amended, supplemented, or otherwise modified, including any subsequent terms of use or other terms and conditions referenced on a purchase order or invoice, except by an instrument expressly amending this Agreement in writing signed by both parties. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity or unenforceability of any of the terms of this Agreement in any other jurisdiction. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. The headings contained in this Agreement are for convenience only and shall not affect meaning or interpretation of this Agreement. This Agreement shall become binding when any one or more counterparts hereof, individually or taken together, shall bear the original or facsimile signature of each of the parties hereto. This Agreement may be executed in any number of counterparts, each of which shall be an original as against any party whose signature appears thereon, but all of which together shall constitute but one in the same instrument.
Schedule A
General Service Description
The test is reachable over the internet from any industry standard browser. ImPACT Pediatric and ImPACT Quick Test are available as part of the ImPACT Toolkit app available from the Apple App Store at http://appstore.com/impacttoolkit.
Customer Configuration and Installation
Please see https://www.impacttestonline.com/htmlcc/Files/sports/qrg_enus.pdf
Availability and Maintenance
ImPACT Applications will use commercially reasonable efforts to make the Product available for Customer use with four (4) hours reserved for maintenance downtimes per week. These maintenance windows may require additional time. Customer designated system administrators are notified via email 24 hours in advance of any scheduled down time. Automated encrypted back-ups are performed on all Customer data.
Service Delivery
ImPACT Applications provides support on-line via e-mail only during Normal Business Hours, 7:00 a.m. CST to 7:00 p.m. CST, Monday through Friday, excluding legal holidays. ImPACT Applications provides technical support only to the Customer. It is Customer’s sole responsibility to provide support to Test Takers.
Documentation
The computer requirements for ImPACT: https://www.impacttestonline.com/htmlcc/Files/sports/qrg_enus.pdf Device requirements for ImPACT Pediatric and ImPACT Quick Test: ImPACT Pediatric and ImPACT Quick Test are currently available for use with an Apple® iPad tablet device that is running iOS Version 8 or higher. This test battery is not standardized for use with the Apple iPad mini due to screen size limitations.
Clinical Reports
Reports are available for Customer’s authorized personnel to generate and use in managing the Customer’s Test Takers. Additional support functions allow for follow up testing and individual results retrieval by Customer’s authorized personnel.
Schedule B Trademark and Logo Usage Guidelines
Manual for print and web related materials.
Effective January 08, 2021
For more information on the application
of the ImPACT Applications brand, please contact the
ImPACT Applications marketing department at marketing@impacttest.com.
Trademark Usage Guidelines
These Trademark Usage Guidelines (the “Guidelines”) set forth the rules for using or referring to the trademarks and service marks owned by ImPACT Applications, Inc. (“ImPACT Applications”) for any/all uses in all mediums. It is imperative that these specifications are followed wherever and whenever the organization and its partners utilize the ImPACT Applications name and identity. For the purposes of these Guidelines, “ImPACT Applications Trademark(s)” shall include all registered or unregistered trademarks and service marks (such as words, names, symbols, devices, slogans, logos, or combination of these) owned by ImPACT Applications including, but not limited to, the trademarks and service marks listed on the ImPACT Applications Trademark List as set forth below. ImPACT Applications considers its trademarks and service marks to be among its most valuable intellectual property assets. As such, ImPACT Applications intends to take all appropriate measures to preserve the strength of and retain its exclusive rights to use its marks. United States and international trademark and copyright laws protect many of these trademarks and service marks.
Trademark List:
ImPACT®
ImPACT Pediatric®
ImPACT® Quick Test
ImPACT Toolkit™
ImPACT Passport®
Cognitive Impairment Screener™ Usage Rules for Printed or Typed Materials
Proper Use of Trademark Symbol
The trademark symbol “™” or “®” should be used with the mark the first time that it appears in any copy.
Proper Capitalization of Letters
The form of the text should always appear as follows “ImPACT Applications” with the initial letter “I” capitalized, a lower case “m” and the letters “PACT” capitalized with no spaces in between.
Usage Rules for ImPACT Applications Logos
The Usage Guidelines for ImPACT Applications logos are located at https://impacttest.box.com/v/Customer-Usage-Style-Guide the content of which may be updated from time to time in ImPACT Applications’ sole and absolute discretion.
