USER AGREEMENT
This User Agreement (the “Agreement“) is a contract between you and ImPACT Applications, Inc. (“ImPACT Applications“) that governs your use of the ImPACT Applications Products. This Agreement applies to ImPACT Applications customers in jurisdictions where the Products are legally available for purchase only. By creating an account and using the ImPACT Applications Products, you agree to comply with all of the terms and conditions in this Agreement, so please read all of the terms and conditions carefully. In addition, you also agree be bound by the ImPACT Applications Privacy Policy and Terms of Use. If you do not agree with the terms and conditions of this Agreement, the Privacy Policy or the Terms of Use please do not use the Products.
Upon receipt of payment for the Products and subject to your compliance with the terms and conditions of this Agreement, ImPACT Applications hereby grants to you a non-exclusive, non-transferable license to access and use the products and services (the “Products“) available from time-to-time on or through one or more web sites owned or controlled by ImPACT Applications or an affiliate of ImPACT Applications through which you obtain access to the Products (the “ImPACT Applications Site“).
Once you have completed your account information and paid for the Products, ImPACT Applications will email you a link to access the Products (the “Link“). The Link will be active for 90-days. If you do not access the Link within the 90-day period, you will need to repurchase the Products. If you receive an “invalid baseline” result you will be given one opportunity to re-take the baseline test. If you receive another “invalid baseline” result, you will need to consult with a trained ImPACT Applications care provider that can be located here: https://concussioncareproviders.com/. In either of the aforementioned circumstances, you will not be entitled to a refund.
The ImPACT Applications system will aggregate and generate data such as your age, height, weight, prior injuries, and test results from using the Products and such other information as ImPACT Applications may determine from time-to-time would be useful in improving the performance of the Products (the “Your Data“). You are the sole exclusive owner of the Your Data. ImPACT Applications shall be permitted to use Your Data in an aggregated, de-identified form, for internal and external evaluation purposes, provided that such information does not identify you and there is no reasonable basis to believe that the information can be used to identify you. Any use of Your Data by ImPACT Applications shall comply with all applicable rules, laws, and regulations regarding data protection and privacy. Additional information about ImPACT Applications use of Your Data is located in the Privacy Policy.
IMPACT APPLICATIONS PRODUCTS ARE NOT DIAGNOSTIC TOOLS AND CANNOT TELL YOU IF YOU HAVE A CONCUSSION. IF YOU FEEL THAT YOU HAVE A CONCUSSION, CONTACT A MEDICAL PROFESSIONAL IMMEDIATELY.
IMPACT APPLICATIONS DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE PRODUCTS 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 PRODUCTS WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR FREE, OR THAT ALL FAILURES OF THE PRODUCTS CAN OR WILL BE CORRECTED. THE PRODUCTS ARE WARRANTED ONLY TO YOU, AND YOU SHALL NOT EXTEND ANY WARRANTIES OR MAKE ANY REPRESENTATIONS FOR OR ON BEHALF OF IMPACT APPLICATIONS OR IMPACT APPLICATIONS’ LICENSORS TO ANY OTHER PERSONS.
IN NO EVENT SHALL IMPACT APPLICATIONS BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, 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. EXCEPT AS PROHIBITED BY LAW, 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 YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH ANY SUCH CLAIM FIRST ARISES.
In the event the Products are unavailable, or ImPACT Applications is unable to perform its obligations under the terms of this Agreement because of acts of God, strikes, equipment, or transmission failure or other causes reasonably beyond its control, ImPACT Applications will not be liable to you for any damages resulting from such failure to perform or otherwise from such causes.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT, THE BREACH THEREOF, AND/OR ANY OTHER DISPUTE BETWEEN THE PARTIES RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, 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 AGREE THAT COURTS OF COMPETENT SUBJECT MATTER JURISDICTION LOCATED IN THE STATE OF DELAWARE SHALL SERVE AS THE SOLE AND EXCLUSIVE FORUMS TO RESOLVE ANY DISPUTES RELATING TO THIS CONTRACT, THE ENFORCEMENT THEREOF, OR ANY OTHER DISPUTE RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT. THE PARTIES SPECIFICALLY EXCLUDE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS TO THIS AGREEMENT. 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.
Except for the licenses and rights expressly granted under this Agreement, no licenses or rights are granted to you hereunder, by implication, estoppel, or otherwise. All such other licenses and rights are reserved unto ImPACT Applications. You may not assign any of your rights or privileges, in whole or in part, by operational of law or otherwise, to any third party without the prior written consent of ImPACT Applications. Any attempted assignment or delegation of this Agreement by you 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. This Agreement, the Terms of Use and the Privacy Policy 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. If there is a conflict between the terms of this Agreement and the Terms of Use, this Agreement will govern. ImPACT Applications may update this Agreement, the Terms of Use and/or the Privacy Policy at any time, with or without notice, in its sole discretion. 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.
