Clinical Enrollment Form

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 and Documentation (as such terms are defined below). The terms and conditions of this Agreement shall govern and control the use of any and all of the Products and Documentation.

By checking the box next to “I have read and accept the Services Agreement” below, or by purchasing, 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, automatic renewal and subscription charges and termination provisions below. You agree this Agreement is enforceable like any written agreement negotiated and signed by you or your organization. If you do not agree to 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 you or your organization 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 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:

“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 manuals and knowledge base in ImPACT Applications Site for the Product available at ImPACT Applications’ website 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 websites owned or controlled by ImPACT Applications, including training materials contained therein and the Customer Center portal through which Customer or Test Takers may obtain access to the Product.

“Marks” mean Parties’ names, trademarks, or service marks.

“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 on or through the ImPACT Applications Site, as such products and services are described in greater detail in the Documentation and in Schedule A, 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, collectively, the Customer Promotional Materials and ImPACT Applications Promotional Materials.

“Subscription” means the right that the Customer buys to access and use the Product and services for a period of one year, as described in a quote or similar document, in return for paying the agreed Subscription fees.

“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 or directed by Customer or a Customer sublicensee 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; USE; RESTRICTIONS; PROMOTIONAL ACTIVITIES

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 to: (a) access the Product, use the Product in the Territory, and authorize Test Takers to access and use the Product via the ImPACT Applications Site or a Customer Site; (b) use ImPACT Applications Marks and ImPACT Applications Promotional Materials, including any goodwill therein, in the Territory and solely for use upon or in connection with the Product and to create Customer Promotional Materials for the purpose of promoting, advertising, or marketing the Product in accordance with the Trademark and Logo Usage Guidelines; and (c) grant sublicenses to access and use the Product under the same terms and conditions set forth in this Agreement. All Test Takers must be located within the Territory.

Customer acknowledges and agrees that (i) licenses to the Product purchased under the Subscription model expire one year from the date of purchase, as determined by reference to the date set forth on the applicable Product invoice; and (ii) any Products licensed under this Agreement that are not used by the expiration or earlier termination of this Agreement will automatically expire such that Customer will not be entitled to use such Products. If a license to any Product expires under this Section 2.1, Customer will not be entitled to any refund, proration, 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 only in the English language during ImPACT Applications’ Normal Business Hours, as set forth in Schedule A, unless otherwise agreed to by the parties in writing.

2.2 Sublicenses and Resell. Customer is prohibited from granting sublicenses to any other organization, except to its direct subsidiary. Any sublicenses granted by Customer under the terms of this Agreement shall be subject to the same terms and conditions set forth in this Agreement, and Customer shall obtain written assurances from each sublicensee that such sublicensee agrees to be bound by the terms and conditions set forth in this Agreement. No sublicensee shall be authorized to grant any further sublicenses. Customer shall notify ImPACT Applications of any sublicense granted by Customer under this Agreement within thirty (30) calendar days of grant. ImPACT Applications reserves the right to terminate any sublicense upon cause shown and reasonable notice to Customer. Customer is also prohibited from reselling or distributing the Products to any other organization, unless previously agreed upon in writing by ImPACT Applications. Any breach by Customer of this Section 2.2 shall result in an immediate termination of this Agreement pursuant to Section 8.3.

2.3 Use & Consents.  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 this Agreement. Except as expressly authorized herein, Customer shall not allow Test Takers to: (i) copy or modify the Product or Documentation 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. Customer agrees to (x) promptly notify ImPACT Applications should Customer become aware that any Test Taker violated or is violating this Section 2.3; and (y) reasonably cooperate with ImPACT Applications in any actions that ImPACT Applications may elect to take with respect to any Test Taker who violates this Section 2.3, including, without limitation, terminating such Test Taker’s access to the Product.

Before a Test Taker may access or use the Product, Customer shall obtain and document, if applicable, verifiable consent from the Test Taker’s parent or legal guardian as required by the Children’s Online Privacy Protection Act of 1998 and its implementing regulations, as amended (“COPPA”), or any other consent required under applicable law in the Territory.

Customer shall be and remains primarily liable for any breach of this Section 2.3.

2.4 Proprietary Notices.  Customer shall not remove any trademark, copyright, or patent notices, any proprietary or restricted rights notices, or any other proprietary notices or disclaimers that appear in the Product, any of the Documentation, or ImPACT Applications Promotional Materials. Unless otherwise agreed to in writing by ImPACT Applications, Customer shall state, if applicable, on (a) its website, (b) on all Products, and (c) on or in all Promotional Materials that, as applicable: (i) the ImPACT Applications Marks are “licensed from ImPACT Applications, Inc.”; (ii) the Products are “licensed from ImPACT Applications, Inc.”; and (iii) the Products are subject to copyright.

2.5 Promotional Activities.  Customer shall have the right to create and distribute Customer Promotional Materials for the Products licensed pursuant to this Agreement. Customer may create Customer Promotional Materials and, subject to this Agreement, modify ImPACT Applications Promotional Materials; provided, however, such ImPACT Applications Promotional Materials may only be used in connection with Products licensed pursuant to this Agreement. ImPACT Applications shall retain all right, title, and interest (including copyrights and trademarks) in and to 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 2.5 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) business days of ImPACT Applications’ receipt of such materials. Customer agrees that such promotional or advertisement activities shall comply with this Agreement. Customer grants ImPACT Applications all right, title, and interest in and to any modifications to the ImPACT Applications Promotional Materials.

2.6 Conditions of Use – ImPACT Applications Marks.  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 licensed pursuant to this Agreement. ImPACT Applications shall retain all right, title, and interest (including copyrights and trademarks) in and to 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. 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) calendar 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 as Schedule B.

2.7 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 to ImPACT Applications or to 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.

2.8 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 the quality, performance, or other characteristics of the Product, such as its safety and effectiveness, 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.

2.9 Government Approvals; 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 shall, at its expense, obtain all registrations, licenses, and permits required to administer the Product, pay all taxes and fees due in connection therewith, and provide ImPACT Applications with such documentation upon request to confirm Customer’s compliance with this Section 2.9. Customer 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.

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 2.9.

2.10 Third Party Websites.  ImPACT Applications Site may integrate with third-party services or tools, or provide links to other content, including websites or open education resources, on the Internet that ImPACT Applications does not control (collectively the “Third-Party Content”), which may provide opinions, recommendations, or other information from various individuals, organizations, or companies. ImPACT Applications is not responsible for the nature, quality, or accuracy of such Third-Party Content, and its inclusion does not imply or express an approval or endorsement thereof by ImPACT Applications or of any of the opinions, treatments, information, products, or services provided in the Third-Party Content.

Certain third-party websites and applications, including those that use artificial intelligence and large language models (collectively, “AI Tools”), may contain or generate output that resembles or mimics, but is not derived from or otherwise based on, bona fide content and materials from ImPACT Applications Products and services, and ImPACT Applications shall not be responsible for such output.

3. PRODUCT INFRASTRUCTURE; UPDATES; SUPPORT

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, necessary for test administration, scoring and Customer Data hosting. 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 system 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.

3.3  Test Accessibility; Service.  A description of how to access the Products, ImPACT Applications technical support, and report generation is set forth on Schedule A.

3.4  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.

3.5  Use of Passwords.  Customer will have the opportunity to create a username and password to access the ImPACT Applications Site and the Products (the “Login Credentials”). All Customer designated account users should have their own Login Credentials. ImPACT Applications will treat anyone who uses Customer’s Login Credentials as the Customer. ImPACT Applications will not be responsible for Customer’s sharing or other misuse of the Login Credentials, and ImPACT Applications will hold the Customer responsible for the activities of a person using the Login Credentials. Customer agrees to maintain the Login Credentials in confidence and to notify ImPACT Applications immediately if Customer knows or suspects that someone is using the Login Credentials in an inappropriate manner.

4.  CONFIDENTIALITY; CUSTOMER DATA; DATA PRIVACY

4.1 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 services 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.

4.2 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.

4.3  Ownership of Customer Data.; Access; Deletion.  ImPACT Applications system will aggregate and generate data relating to Customer’s Test Takers, including protected health information such as age, gender, symptoms, 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 and has continuous access to all Customer Data through ImPACT Applications Site throughout the Agreement Term (as defined in Section 8.1). Only ImPACT Applications’ employees exercising its rights and performing its duties under the Agreement (the “Essential Personnel”) and Customer registered users with Login Credentials, explicitly authorized by the Customer, may have access to Customer Data through the ImPACT Applications’ Site. Any use of Customer Data by ImPACT Applications shall comply with all applicable rules, laws, and regulations regarding data protection and privacy, as outlined in detail in the ImPACT Applications’ “Privacy Notice” (available here: https://impacttest.com/privacy-notice/).

Upon written request from Customer or an authorized Data Owner, following termination or an expiration of this Agreement, or at any other time, to delete Customer Data (“Data Deletion Request”), ImPACT Applications shall securely destroy all Customer Data 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 and disaster recovery data retention policies and procedures, 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 Customer Data is retained pursuant to clauses (a) and (b) in the previous sentence, ImPACT Applications will extend protections of this Section 4.3 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. If no written request from Customer or Data Owner is received following expiration of this Agreement, ImPACT Applications will dispose of all Customer Data in accordance with ImPACT Applications’ standard medical records retention schedule as outlined in the Privacy Notice.

Customer acknowledges and agrees that Customer Data cannot be recovered following the destruction, and unconditionally releases, waives, and discharges any right or entitlement, whether by contract, under operation of law, or otherwise, to bring any cause of action or claim against ImPACT Applications now or in the future in connection with any Data Deletion Request. Customer assumes any and all risk of loss, liability, damage, expenses, or costs that may occur as a result of Data Deletion Request.

4.4  De-Identified Data.  ImPACT Applications shall be permitted to use aggregated, de-identified Customer Data (“De-Identified Information”), only for lawful purposes, including quality assurance, internal and external research, development and evaluation purposes, norm development and validation, regulatory submissions and approvals, and other activities to develop, evaluate, improve, and demonstrate the effectiveness of the products and services; 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 De-Identified Information by ImPACT Applications shall comply with all applicable rules, laws, and regulations in the Territory regarding data protection and privacy, as outlined in detail in the Privacy Notice.

4.5 Privacy Adherence; HIPAA.  (A) THIS SECTION 4.5(A) APPLIES ONLY TO CUSTOMERS LOCATED IN THE UNITED STATES. 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, in compliance with HIPAA, and the Parties agree to abide by the terms and conditions of the Business Associate Addendum attached hereto as an Schedule D (available here: https://impacttest.com/ba-addendum/) (the “BAA”).

(B) THIS SECTION 4.5(B) APPLIES ONLY TO CUSTOMERS LOCATED OUTSIDE OF THE UNITED STATES. To the extent deemed necessary by ImPACT Applications under the laws of the jurisdiction in which Customer is based or to which Customer is otherwise subject, the Parties may enter into an appropriate data processing agreement setting forth their respective rights and obligations with respect to the data processed in connection with this Agreement. In carrying out its obligations in accordance with this Agreement, ImPACT Applications will have access to Customer Data and therefore shall, at the minimum:

1. i. Not use or further disclose Customer Data other than as permitted or required by this Section 4.5 or as required by applicable data protection law in the Territory;
2. ii. Use appropriate safeguards to prevent use or disclosure of the Customer Data other than as provided for by this Section 4.5;
3. iii. Report to Customer any use or disclosure of the Customer Data not provided for by this Section 4.5 of which ImPACT Applications becomes aware;
4. iv.  Mitigate, to the extent practicable, any harmful effect that is known to ImPACT Applications of a use or disclosure of Customer Data not permitted by this Section 4.5;
5. v. Only disclose Customer Data to ImPACT Applications’ employees who need to know the Customer Data in order to provide the services and the disclosure of Customer Data shall be limited to the extent necessary to provide such services under this Agreement.

5. FEES AND PAYMENTS; TAXES; LATE PAYMENTS

5.1  Fees; Payment Disputes.  In consideration of the license rights and services provided by ImPACT Applications hereunder in accordance with this Agreement, Customer will pay ImPACT Applications the applicable Product fees or annual “Subscription Fee”, as the case may be, (collectively, the “Fees”) in the amounts set forth in the applicable order form, quote or fee schedule, which will clearly state the Fee amount or range, the billing frequency, and any applicable taxes, and Customer will pay all such Fees within thirty (30) calendar days of receipt of the applicable invoice. Subscription Fee will be billed on a recurring basis, annually in advance on or about the first anniversary day of the Subscription purchase (or as otherwise stated in the applicable quote or order form), unless Customer timely terminates such Subscription by providing ImPACT Applications with a written termination request at least sixty (60) calendar days prior to the Subscription renewal. Customer acknowledges and agrees that no Subscription Fee refunds will be provided by ImPACT Applications if Customer stops using or terminates the active Subscription before its expiration. A current copy of the applicable Fees will be provided to Customer upon request. All Product Fees shall be paid in United States Dollars.

Customer shall be responsible for collecting Fees from any sublicensees and shall remit the same to ImPACT Applications according to the terms set forth in this Section 5. ImPACT Applications shall electronically invoice Customer for all 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 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 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 Fees owed as part of such resolution, if any. If 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. Failure to pay undisputed 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  Other Fees; Optional Annual CIC Program.  The Fees shall apply only to Product 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. If Customer opts to enroll in a Credentialed ImPACT Consultant (“CIC”) Program, Customer shall pay ImPACT Applications the applicable CIC Program fee upon ImPACT Applications’ acceptance of a Customer affiliate into the CIC Program (“CIC Enrollment Date”) and each one-year anniversary thereof pursuant to the payment terms set forth in Section 5 and as outlined in detail in the Schedule C.

5.3  Fee Increases.  ImPACT Applications reserves the right, on a yearly basis, and upon sixty (60) days prior written notice to Customer, increase the 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.

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 and any of its sublicensees’ 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 under applicable 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 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 Fees paid during the Term.

6.2 Warranty Disclaimer.  EXCEPT AS SET FORTH IN SECTION 6.1, IMPACT APPLICATIONS DISCLAIMS ANY AND ALL WARRANTIES (WHETHER EXPRESSED OR IMPLIED) 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’S AUTHORIZED SUBLICENSEES, AND CUSTOMER AND CUSTOMER’S AUTHORIZED SUBLICENSEES 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, 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 MEDICAL DEVICE, THE APPLICATION OF WHICH IS COMMERCIAL, RATHER THAN CONSUMER-ORIENTED, IN NATURE, REGARDLESS OF THE NATURE OF ANY SUBLICENSES OR 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; or (ii) 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 limit set forth in Section 6.3.

7.2 Additional Obligation of ImPACT Applications.  If 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”) will be one (1) year from the Effective Date. This Agreement and any amendments to the Schedules as set forth in Section 9.10 will automatically renew for additional 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 Subscriptions, a copy of which will be provided to Customer upon request, unless Customer terminates this Agreement  at least sixty (60) calendar days prior to the start of the applicable Renewal Term and in accordance with Section 8.2 below.

8.2 Termination.  Customer may terminate this Agreement at any time, with or without cause, by providing ImPACT Applications with a written intent of termination (the “Termination Notice”) at least sixty (60) calendar days before the requested termination date. Customer may provide the Termination Notice by (a) email to support@impacttest.com, or (b) completing the Cancellation Request Form available at: https://impacttest.com/customer-cancellation-request/.

If Customer fails to provide the Termination Notice within the required notice period set forth above this Agreement and any previously purchased Subscriptions will automatically renew and Customer will be charged for all associated Fees for the applicable Renewal Term, as outlined in Section 5. Customer may not withhold, offset, or dispute such Fees based on an untimely Termination Notice.

ImPACT Applications may terminate this Agreement at any time, with or without cause, by providing the Customer with a thirty (30) days prior written notice.

8.3 Termination for Cause.  Subject to Section 5 of this Agreement, either party has the right to immediately terminate this Agreement by delivering written notice 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 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. Such termination will not relieve Customer of its obligation to pay all unpaid undisputed Fees and charges accrued or payable through the end of the applicable notice period, including any outstanding invoices.

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 in Medicare, Medicaid, Blue Cross, or other 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 constitutes a violation of any statute, regulation, or ordinance, Customer may request that this Agreement be renegotiated to eliminate the jeopardy and, if the Parties are unable to reach agreement within thirty (30) days after such request, terminate this Agreement upon written notice to ImPACT Applications.

8.4 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. Upon the effective date of such termination, Customer agrees to: (a) pay all undisputed sums due to ImPACT Applications, (b) promptly cooperate with ImPACT Applications to resolve any disputed sums per Section 5.1, and (c) return all Confidential Information and proprietary information to ImPACT Applications.

8.5 Survival.  The following shall survive the expiration or sooner termination of this Agreement:  (i) the provisions of Sections: 4 (Confidentiality; Customer Data; Data Privacy) 6 (Warranties and Limitations of Liability), 7 (Infringement Indemnification), 8 (Term and Termination), and 9 (General); (ii) any payment obligations of the Customer hereunder accruing prior to the date of such expiration or termination; (iii) any provisions herein expressly surviving such expiration or termination; and (iv) any provisions that, in order to give proper effect of its intent, should survive such expiration or termination.

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. Neither Party has the authority to obligate or bind the other in any manner.

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, war, pandemics, epidemics, public health emergencies, 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  Dispute Resolution; Mediation. THIS SECTION 9.4 APPLIES ONLY TO CUSTOMERS LOCATED OUTSIDE OF THE UNITED STATES. The Parties will use their best efforts to settle any disputes, controversies or differences arising out of this Agreement (“Disputes”). Before the Parties initiate any legal action, other than injunctive relief, the Parties will use an executive conference. The conference will be attended by at least one executive from each Party. At the conference, each Party will present its view of the Dispute, and the executives will enter into good faith negotiations in an attempt to resolve the Dispute. If the Dispute is not resolved, then the Parties will submit the Dispute to mediation (the “Mediation”). All such Mediations shall be conducted through the platform provided by New Era ADR, Inc. (https://www.neweraadr.com) (the “New Era Platform”) in accordance with its rules and procedures for “Virtual Expedited Arbitrations” by a professional neutral(s) with substantial experience in resolving commercial disputes (the “Neutral”). The Neutral shall be chosen in accordance with the rules and procedures of the New Era Platform. The Parties will bear costs as provided for under this Agreement or, if silent, in accordance with the rules and procedures of the New Era Platform. The prevailing party may be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees and all other expenses) incurred in connection therewith, at the Neutral’s discretion. If and only if any such unresolved dispute or controversy arising from or relating to this Agreement is not finally settled through Mediation, either Party may then pursue resolution of the Dispute consistent with the other terms of this Agreement.

9.5 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.

9.6 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.

9.7 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.

9.8 Assignment.  Neither Party may 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 the other Parties. Any Party’s merger or consolidation with another entity or shall not be considered an assignment requiring the prior written consent of other Parties, provided that the surviving entity assumes all of that Party’s obligations hereunder without qualification or condition. 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.

9.9 Notices.  All notices relating to this Agreement (“Notices”) must be in writing. Notices to the ImPACT Applications will be sent to the following address:

ImPACT Applications, Inc.

One Pierce Place, Itasca, IL 60143

Attn: General Counsel

Email: legal@impacttest.com

Notices to Customer will be sent to the address Customer provided during registration, as Customer may update from time to time. Any Notice will be deemed given on the date delivered if delivered personally; the next business day if sent by recognized overnight courier; 3 business days after being mailed certified first class mail, postage prepaid; or upon confirmation receipt that it was transmitted satisfactorily if transmitted by facsimile or email to addresses or numbers set forth below or as otherwise provided in writing by either Party.

9.10 Miscellaneous.  This Agreement, including Schedules A, B, C and D attached to this Agreement (collectively referred to as the “Schedules”) and the Privacy Notice constitute 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. This Agreement may not be amended, supplemented, waived or otherwise modified in any way, including by any subsequent terms and conditions referenced on a Customer’s purchase order, without the prior written consent of ImPACT Applications. ImPACT Applications may revise this Agreement and/or Schedules from time to time and will post the revised Agreement to ImPACT Applications’ Site, and will provide notice to Customer of any such revision, which may be given by mass email or by posting a notice on the ImPACT Applications’ Site. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THE AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Customer’s continued use of the Product and services will constitute Customer’s agreement to any new provisions within the revised Agreement.

Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction will 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.

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 http://appstore.com/impacttoolkit.

Customer Configuration and Installation

The Customer Center overview, technical requirements for ImPACT and ImPACT administration recommendations are described in Quick Reference Guide available at https://impacttest.box.com/v/Get-Started-Guide.

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.

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 disaster recovery back-ups are performed on all Customer data.

Customer Service and Technical Support

ImPACT Applications provides customer service and technical support on-line via e-mail only during Normal Business Hours, 9:00 a.m. CST to 5:00 p.m. CST, Monday through Friday, excluding legal holidays.  ImPACT Applications provides support only to the Customer. It is Customer’s sole responsibility to provide support to Test Takers.

Documentation

Administration and Interpretation Manual for ImPACT:  https://impacttest.box.com/v/ImPACT-Clinical-Manual-PUBLIC

Administration and Interpretation Manual for ImPACT Pediatric:  https://impacttest.box.com/v/ImPACT-Pediatric-Manual

Administration, Scoring and Interpretation Manual for ImPACT Quick Test:  https://impacttest.box.com/v/ImPACT-QuickTest-Manual

Clinical Reports

Clinical 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.

SCHEDULE C

Credentialed ImPACT Consultant Program

The Credentialed ImPACT Consultant (the “CIC”) program is available to licensed healthcare professionals permitted under applicable law to administer neurocognitive testing in the following categories: M.D., D.O., Ph.D., Psy.D., Neuropsychologist, Physician Assistant, and Nurse Practitioner or its international equivalent (each a “CIC in Training”). A CIC in Training must be either a Customer employee or an independent contractor. Determinations regarding eligibility are made by ImPACT Applications in its sole and absolute discretion. Eligibility criteria may be subject to change from time to time with or without notice.

CIC Program Enrollment

1. An eligible CIC in Training is given automatic access to the required training courses on the “CIC Enrollment Date.” All educational and marketing materials are available at https://concussioncareresources.com.
2. The CIC in Training must apply for the CIC program online. The CIC in Training must create a video on-demand training account and complete an application.
3. Once the CIC in Training is deemed eligible and accepted for the CIC program:
   1. Customer will be invoiced for the annual fee for the CIC program (the “CIC Fee”), if applicable. The CIC Fee includes the first year CIC training courses which are intended to assist the CIC in passing the test. Video on-demand rules apply for course expirations. CIC courses may change at any time.
   2. The CIC in Training will receive a link to the exam via email. Detailed instructions to access the test are included in the email.
   3. Program rules:
      1. The CIC in Training must pass the CIC exam test with a score of at least 80% to be eligible for participation in the program.
      2. Each CIC in Training has three attempts to pass the test. If the CIC in Training fails three times, the CIC in Training is required to wait 45 calendar days before being given three more attempts.
      3. If the CIC in Training does not pass the test within a year of the initial application, the CIC in Training will be required to pay the CIC Fee again at the anniversary of the application date to continue training and testing.
      4. At least one (1) CIC in Training must pass the CIC test as set forth above within ninety (90) calendar days of the Effective Date for Customer to receive CIC discounted prices on testing.
4. If the CIC in Training passes the CIC test:
1. Customer will be invoiced for the annual fee for the CIC program (the “CIC Fee”), if applicable. The CIC Fee includes the first year CIC training courses which are intended to assist the CIC in passing the test. Video on-demand rules apply for course expirations. CIC courses may change at any time.
2. The CIC in Training will receive a link to the exam via email. Detailed instructions to access the test are included in the email.
3. Program rules:
   1. The CIC in Training must pass the CIC exam test with a score of at least 80% to be eligible for participation in the program.
   2. Each CIC in Training has three attempts to pass the test. If the CIC in Training fails three times, the CIC in Training is required to wait 45 calendar days before being given three more attempts.
   3. If the CIC in Training does not pass the test within a year of the initial application, the CIC in Training will be required to pay the CIC Fee again at the anniversary of the application date to continue training and testing.
   4. At least one (1) CIC in Training must pass the CIC test as set forth above within ninety (90) calendar days of the Effective Date for Customer to receive CIC discounted prices on testing.
5. (For Customers with the CIC discount only) The CIC discount shall be available upon the CIC Enrollment Date and remain in effect so long as at least one (1) eligible individual for the CIC Program satisfies the requirements set forth on Schedule C within ninety (90) calendar days of the CIC Enrollment Date.

   Customer shall automatically revert to the then-current retail pricing;Customer will be invoiced for the difference between the current retail pricing and the CIC discount pricing for any invoices created within such ninety (90) calendar day period; Customer shall be denied access to CIC program benefits until and unless another individual affiliated with Customer completes and maintains CIC status.

6. 6. The Customer will be immediately eligible for the CIC discount for the first 90 days. If the CIC candidate fails to pass the test within ninety (90) calendar days, then Customer will be invoiced for the difference between the current retail pricing and the CIC discount pricing for any invoices created within such ninety (90) calendar day period;Customer will automatically revert to then-current retail pricing and Customer shall be denied access to CIC program benefits until and unless another individual affiliated with Customer completes and maintains CIC status;The continuous availability of discounted pricing for testing Products shall be conditioned upon Customer maintaining at least one CIC on staff.

Yearly Renewal

7.  The CIC certification expires one year from the CIC enrollment date and must be renewed before that expiration date for the Customer to retain the CIC benefits, under the then current CIC Fee, if applicable.

8.      Each year after initial approval, the CIC is required to take one (1) ImPACT Applications continuing education course to maintain CIC status. This course is taken in the form of a video on-demand course or live webinar. The annual course is included in the CIC Fee. Courses included in the annual CIC Fee are not transferrable to other healthcare providers or CICs in Training and may not be broadcasted or viewed with multiple people or in a group. CIC Courses may change at any time.

9.      If the CIC fails to complete the required one (1) education course or pay the CIC Fee (if applicable) before the renewal date, Customer’s access to CIC benefits (including discounts) shall be automatically suspended with or without notice. The CIC listing shall be temporarily removed from the ImPACT Applications website and CIC discounts shall be automatically suspended until Customer has a CIC associated with its account.

10.    ImPACT Applications may, upon sixty (60) days prior written email notice, increase the CIC Fee, which will become applicable upon Customer’s next renewal.

SCHEDULE D

BUSINESS ASSOCIATE ADDENDUM

(for US Customers only)

This Business Associate Addendum (“BAA”), effective as of the effective date of the underlying Services Agreement (the “Agreement”), supplements, and is made part of the Agreement by and between ImPACT Applications, Inc., a Delaware corporation (“Business Associate”) and the counterparty to the Agreement (“Covered Entity”). Business Associate and Covered Entity are referred to collectively as the “Parties” and individually as a “Party”. To the extent that Covered Entity discloses Protected Health Information to Business Associate (or Business Associate handles Protected Health Information on Covered Entity’s behalf) in connection with services or products provided to Covered Entity, or as otherwise required or allowed by the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996, codified at 42 U.S.C. §1320d through d-9, as amended (“HIPAA”), and only to the extent required by law, Covered Entity and Business Associate agree to the following terms and conditions, which are intended to comply with HIPAA, the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”), and their respective implementing regulations:

1. Definitions
   1. “Business Associate” will generally have the same meaning as the term “business associate” at 45 C.F.R. §160.103, and in reference to the party to this BAA, will mean ImPACT Applications, Inc.
   2. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 C.F.R. §160.103, and in reference to the party to this BAA, will mean the entity that has entered into a Services Agreement with Business Associate.
   3. “HIPAA Rules” means the Privacy, Security, Breach Notification, and Enforcement Rules at 45 C.F.R. Part 160 and Part 164.
   4. “Services Agreement” means the agreement between the Parties in which Business Associate performs functions or activities on behalf of Covered Entity. This BAA is an integral part of the Services Agreement as if fully set forth therein.
   5. Other definitions: The following terms used in this BAA will have the same meaning as those in the HIPAA Rules: Breach, Data Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary, Notice of Privacy Practices, Protected Health Information (to the extent such Protected Health Information is received, used, disclosed, accessed or maintained by Business Associate), Required By Law, Secretary, Security Incident, Subcontractor, Unsecured Protected Health Information, and Use. Other terms will have the definitions set forth in this BAA.
2. Obligations and Activities of Business Associate
   1. Business Associate agrees to not Use or Disclose Protected Health Information other than as permitted or required by this BAA, as Required by Law, or as contemplated by the Terms of Use.
   2. Business Associate agrees to use appropriate safeguards, including compliance with Subpart C of 45 C.F.R. Part 164, with respect to electronic Protected Health Information to prevent Use or Disclosure other than as permitted by this BAA.
   3. Business Associate agrees to report to Covered Entity’s Privacy Official any Use or Disclosure not provided for by this BAA, including Breaches as required by 45 C.F.R. §164.410, and Security Incidents of which it becomes aware.
   4. Business Associate agrees to ensure that subcontractors agree to the same restrictions as required by 45 C.F.R. §§164.502(e)(1)(ii) and 164.308(b)(2).
   5. Business Associate agrees to make PHI in a Designated Record Set available to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. §164.524.
   6. Business Associate agrees to make amendments available pursuant to 45 C.F.R. §164.526.
   7. Business Associate agrees to provide accounting of disclosures under 45 C.F.R. §164.528.
   8. Business Associate agrees to comply with Subpart E of the HIPAA Rules when carrying out Covered Entity obligations.
   9. Business Associate agrees to make its internal practices, books, and records related to Use and Disclosure of PHI available to the Secretary for HIPAA compliance.
3. Permitted Uses and Disclosures of Protected Health Information
   1. Business Associate may Use or Disclose PHI as necessary to perform services set forth in the Terms of Use and as otherwise permitted by HIPAA.
   2. Business Associate may Use or Disclose PHI as Required By Law.
   3. Uses and Disclosures shall comply with HIPAA Minimum Necessary requirements.
   4. Business Associate may create de-identified information consistent with HIPAA.
   5. Business Associate may provide Data Aggregation services and Limited Data Set disclosures.
   6. Business Associate may report violations of law to appropriate authorities.
   7. Business Associate may not violate Subpart E of HIPAA.
   8. Business Associate may Use PHI for proper management and administration.
   9. Business Associate may Disclose PHI for management or legal responsibilities, with confidentiality assurances.
4. Obligations of Covered Entity
   1. Covered Entity will notify Business Associate of limitations in Notice of Privacy Practices.
   2. Covered Entity will notify Business Associate of revocations of permission by Individuals.
   3. Covered Entity will notify Business Associate of restrictions agreed to under 45 C.F.R. §164.522.
   4. Covered Entity agrees to comply with all applicable laws, including HIPAA.
   5. Covered Entity may not request impermissible Uses or Disclosures.
5. Term and Termination
   1. Term: Except as otherwise provided, the term of this BAA coincides with the Terms of Use and terminates per those provisions or for cause.
   2. Termination for Cause: Upon knowledge of a material breach, the non-breaching Party may terminate if not cured within 30 days.
   3. Effect of Termination: Upon Covered Entity instruction, Business Associate will return or destroy PHI subject to retention policies and legal requirements.
   4. If no written request from Covered Entity is received, Business Associate shall:
   1. Retain only PHI necessary for proper management or legal responsibilities.
   2. Dispose of PHI per standard retention schedule (Privacy Notice).
   3. Continue safeguards for electronic PHI while retained.
   4. Not Use or Disclose PHI except as permitted.
   5. Return or destroy PHI when no longer needed.
   6. Obligations survive termination.
6. Interpretation and Amendment of this BAA

   A regulatory reference to HIPAA means the section as in effect or as amended. This BAA supersedes prior agreements. Amendments are valid only if in writing and signed by both Parties.

7. No Third-Party Rights / Independent Contractors

   The terms are for the Parties’ benefit and do not create third-party rights. Parties are independent contractors.

8. Notices

   Any notice required or permitted will be in writing and delivered in person, by courier, registered mail, or facsimile. Parties may change addresses by written notice.

9. Governing Law

   To the extent not preempted by federal law, this BAA will be governed by state law governing the Terms of Use.

10. Binding Nature and Benefits

    This BAA binds and benefits the Parties and their successors and permitted assigns.

11. Severability

    Each provision will be interpreted to be valid under applicable law. If any provision is invalid, it will not affect the remainder; material invalid provisions allow termination upon 90 days’ notice.