Terms of Use
These terms of use (“Terms of Use”) govern your use of the ImPACT Applications, Inc. (“ImPACT Applications”) web site including, but not limited to the Customer Center and training materials contained therein (the “ImPACT Applications Site”), the ImPACT Applications concussion assessment tools available on or through the ImPACT Applications Site (each an “ImPACT Applications Product” and collectively, the “ImPACT Applications Products”), the results generated by the ImPACT Applications Products, information which appears on the ImPACT Applications Site or ImPACT Applications Products, such as articles for scholarly publications, and other material contained on the ImPACT Applications Site and in ImPACT Applications Products all of which are provided to you for informational purposes only.
Neither the ImPACT Applications Site nor the ImPACT Applications Products constitute medical advice.
You should seek professional medical advice, diagnosis, and/or treatment for any and all medical conditions, whether as a result of using an ImPACT Applications Product or otherwise. In the event you believe you have suffered a concussion or some other medical condition you should immediately seek the advice of a neuropsychologist, medical doctor or another qualified healthcare provider. If you are suffering from symptoms that may be related to a concussion or some other serious medical condition you should immediately stop using the ImPACT Applications Site and/or the ImPACT Applications Products and call 911 or seek the attention of a qualified healthcare provider immediately.
Disclaimer of warranties; limited liability of ImPACT Applications
The ImPACT Applications Site, the ImPACT Applications Products, and the results received as a result of the use of either the ImPACT Applications Site and/or the ImPACT Applications Products are provided to you on an “as is,” “where is” basis.
TO THE MAXIMUM EXTENT PERMITTED, IMPACT APPLICATIONS MAKES NO WARRANTY AS TO THE IMPACT APPLICATIONS SITE, THE IMPACT APPLICATIONS PRODUCTS, THE OPERATION OF THE IMPACT APPLICATIONS SITE, OR TO ANY SERVICES PROVIDED BY IMPACT APPLICATIONS THROUGH THE IMPACT APPLICATIONS SITE, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, SATISFACTORY QUALITY, DIAGNOSTIC ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE MAXIMUM EXTENT PERMITTED, IN NO EVENT WILL IMPACT APPLICATIONS OR ANY OF ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, SERVICE PROVIDERS, SUBCONTRACTORS OR LICENSORS BE LIABLE TO LICENSEE OR ANY THIRD PARTY (WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE IMPACT APPLICATIONS SITE, THE IMPACT APPLICATIONS PRODUCTS OR ANY PORTION THEREOF, INCLUDING BUT NOT LIMITED TO, THE INABILITY TO ACCESS THE IMPACT APPLICATIONS SITE OR THE IMPACT APPLICATIONS PRODUCTS, INACCURATE RESULTS, LOSS OF PROFITS OR DAMAGES STEMMING FROM LOSS OR CORRUPTION OF DATA OR DATA BEING RENDERED INACCURATE, THE COST OF RECOVERING ANY DATA, CLAIMS RELATED TO DIAGNOSTIC ACCURACY AND/OR MEDICAL MALPRACTICE OR PERSONAL INJURY, EVEN IF IMPACT APPLICATIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED, IMPACT APPLICATIONS AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS, HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATION OR WARRANTY RELATED TO THE ACCURACY, RELIABILITY, COMPLETENESS, CURRENTNESS, OR TIMELINESS OF THE IMPACT APPLICATIONS SITE, THE IMPACT APPLICATIONS PRODUCTS, MATERIALS PROVIDED TO YOU THROUGH THE IMPACT APPLICATIONS SITE OR IMPACT APPLICATIONS PRODUCTS, LINKS THAT MAY APPEAR ON THE IMPACT APPLICATIONS SITE OR IN THE IMPACT APPLICATIONS PRODUCTS AND OTHER MATERIALS THAT MAY BE MADE AVAILABLE TO YOU FROM TIME-TO-TIME ON THE IMPACT APPLICATIONS SITE OR THROUGH THE IMPACT APPLICATIONS PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED, IN NO EVENT SHALL IMPACT APPLICATIONS’ AGGREGATE LIABILITY EXCEED FEES ACTUALLY PAID TO IMPACT APPLICATIONS IN THE 12-MONTH PERIOD PRIOR TO THE EVENT OUT OF WHICH SUCH LIABILITY AROSE.
THE FOREGOING LIMITATIONS WILL APPLY EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
Use of the ImPACT Applications Site and the ImPACT Applications Products are governed by these Terms of Use.
The laws of the United States and foreign countries regarding copyrights, trademarks, trade secrets, and/or service marks protect the ImPACT Applications Site, the ImPACT Applications Products, and many or all of the other materials provided to you through the ImPACT Applications Site and/or ImPACT Applications Products. All right, title and interest in and to the ImPACT Applications Site and each of the ImPACT Applications Products shall remain solely with ImPACT Applications or its affiliates. Any use of the ImPACT Applications Site, the ImPACT Applications Products and/or the materials made available to you on the ImPACT Applications Site or through the ImPACT Applications Products not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other applicable laws. ImPACT Applications reserves the right to alter, change or modify without notice the ImPACT Applications Site and/or the ImPACT Applications Products.
In the event you should violate any of these Terms of Use, your license to use the ImPACT Applications Site and the ImPACT Applications Products shall automatically and immediately terminate.
Authority; Consent; Compliance with Applicable Laws; Privacy
By accessing the ImPACT Applications Site and the ImPACT Applications Products you represent and warrant to ImPACT Applications and its affiliates that: (1) you are an authorized ImPACT Applications user and you meet all applicable requirements to use the ImPACT Applications Products; (2) you and/or your organization have properly secured all required consents to collect, use and access the information made available by accessing the ImPACT Applications Products; and (3) your use of the ImPACT Applications Products complies with all applicable privacy laws, regulations, and rules including, but not limited to, the collection and processing of Personal Identifiable Information and data concerning health.
For a description of policies and methods used by ImPACT Applications to protect personal data refer to the Privacy Notice available at www.impacttest.com
Issuance and use of your ImPACT Applications password
Upon becoming a user of the ImPACT Applications Site and/or a licensee of an ImPACT Applications Product you will be issued a unique password that will enable you to access certain portions of the ImPACT Applications Site and the ImPACT Applications Products. Your password will also allow you to provide and store certain information on the ImPACT Applications Site. Once you have been issued a password for the ImPACT Applications Site and/or Product you shall be solely responsible for taking all reasonable steps to ensure that no unauthorized access to your ImPACT password occurs. You shall be solely responsible for the safekeeping of your password, authorizing use of your password, contacting ImPACT Applications immediately upon learning of a misappropriation of your password and/or your request to deactivate your password. You grant ImPACT Applications and all other persons or entities involved in the operation of the ImPACT Applications Site and ImPACT Applications Products the right to transmit, monitor, retrieve, store, and use your information in connection with the operation of the ImPACT Applications Site and ImPACT Applications Products.
Links to other sites and advertisements
ImPACT Applications may provide links to third-party web sites on the ImPACT Applications Site and/or in the ImPACT Applications Products. ImPACT Applications shall not be responsible for the content provided through third-party sites linked from time-to-time to the ImPACT Applications Site and/or ImPACT Applications Products and does not make any representations regarding their content, accuracy or non-infringement. You agree that your use of third-party websites is at your own risk and subject to the terms of use of use for such sites.
Indemnity
You agree to defend, indemnify, and hold harmless ImPACT Applications, its subsidiaries, affiliates, shareholders, employees, agents, officers, directors, successors and assigns, service providers, subcontractors, and licensors harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable attorney’s and accounting fees, resulting from, or alleged to result from, your violation of these Terms of Use.
General
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF USE, THE BREACH THEREOF, AND/OR ANY OTHER DISPUTE BETWEEN THE PARTIES RELATED TO THE SUBJECT MATTER OF THESE TERMS OF USE, TO INCLUDE ANY CLASS ACTION LAWSUIT, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES INCLUDING THE OPTIONAL RULES FOR EMERGENCY MEASURES OF PROTECTION, WHICH SHALL BE THE EXCLUSIVE FORUM FOR ANY DISPUTES. THE ARBITRATION HEARING SHALL TAKE PLACE IN THE STATE OF DELAWARE, BEFORE A SINGLE ARBITRATOR TO BE SELECTED PURSUANT TO THE RULES OF THE AAA. JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. IF FOR ANY REASON THIS ARBITRATION CLAUSE IS STRICKEN OR DEEMED TO BE UNENFORCEABLE, THE PARTIES CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY COURT HAVING COMPETENT SUBJECT MATTER JURISDICTION LOCATED IN THE STATE OF DELAWARE AND 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 THESE TERMS OF USE. THIS PROVISION IS INTENDED TO BE SEVERABLE FROM THE OTHER PROVISIONS OF THESE TERMS OF USE, AND SHALL SURVIVE AND NOT BE MERGED INTO ANY SUCH JUDGMENT.
These Terms of Use and the rights, obligations, liabilities, and responsibilities of the parties hereto, shall be governed and interpreted in accordance with the laws of the State of Delaware, without reference to the choice of law or conflicts of laws principles of that or any other jurisdiction. The invalidity of any provision of these Terms of Use by any court having competent jurisdiction shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect.
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 at the addresses first set forth below, or at such other address as the applicable party may designate in writing.
The waiver by either party of any default or breach of these Terms of Use will not constitute a waiver of any rights with respect to other provisions or with respect to a subsequent default or breach. No act, delay or omission on the part of either party will be deemed a waiver unless expressly made in writing.
