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.
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.