IMPACT APPLICATIONS, INC.™ SERVICES AGREEMENT Academic Institution/School
Important - Read Carefully. Notice to User:
This License Agreement ("Agreement") is a legal document between you and ImPACT Applications, Inc. ("ImPACT"). It is important that you read this document before using the ImPACT software and updates and upgrades thereto and any accompanying documentation, including, without limitation printed materials, 'online' files, or electronic documentation. The terms and conditions of this Agreement shall govern and control your use of any and all of the ImPACT software.
By clicking the "I accept" and "Next" buttons below, or by installing, or otherwise using the software, you agree to be bound by the terms of this Agreement including, without limitation, the warranty disclaimers, limitation of liability, data use and termination provisions below, whether or not you decide to purchase the software. You agree that this Agreement is enforceable like any written agreement negotiated and signed by you. If you do not agree, you must click the "Decline" button below and you shall have no right to install, use or otherwise benefit from the software. By entering into this Agreement you hereby represent and warrant to ImPACT and its affiliates that you are a duly authorized representative of your organization and that by clicking "I accept" and "Next" you are acting within your authority and creating a legally binding agreement between your organization and ImPACT.
By clicking the "I accept" and "Next" buttons below you certify that either your organization is a hospital, sports medicine clinic, institution of secondary or post-secondary education, professional sports team or similar organization receiving post injury services from a licensed Medical Doctor, Doctor of Osteopathic Medicine, Neuropsychologist, Psychologist, Nurse Practitioner or Physician's Assistant in good standing. You acknowledge and agree only those organizations and individuals listed above are permitted to license and use the ImPACT post injury testing products and that any license to the ImPACT testing products is expressly conditioned upon my organization maintaining such status throughout the term of the license as further described below.
As used in this Agreement, the following terms shall have the respective meanings assigned to them below:
"Customer Materials" means all materials and content owned or controlled by Customer, including but not limited to and Customer's standard operating procedures and intellectual property such as logos, copyright works and trademarks.
"Customer Site" means a web site owned or controlled by Customer through which Customer may obtain access to the Product.
"Configurations" means standard set-up and activation services for the Product.
"Documentation" means user documentation for the Product available at ImPACT's web site or sent to the Customer in print, as such documentation may be amended by ImPACT from time to time.
"End User" means an individual authorized by the Customer to access the Program.
"ImPACT Site" means one or more web sites owned or controlled by ImPACT or an affiliate of ImPACT through which Customer may obtain access to the Product.
"Normal Business Hours" means 9:00 a.m. to 5:00 p.m., Eastern Standard Time, on weekdays, but excluding all holidays observed by ImPACT.
"Person" or "person" means any corporation, partnership, limited liability company, joint venture, other entity or natural person.
"Product" means the ImPACT baseline and post-concussion tests as available on the ImPACT Site, as such products are described in greater detail in the Documentation, together with any Updates thereto.
"Product Infrastructure" means the hardware, software and other equipment that ImPACT uses in connection with its hosting of the Product for Customer hereunder.
"Update" means any update, upgrade or new release for the Product that ImPACT may make available to Customer from time to time hereunder.
2. PRODUCT ACCESS; RESTRICTIONS
2.1 Limited License. Subject to Customer's compliance with the terms and conditions of this Agreement, ImPACT hereby grants to Customer a non-exclusive, non-transferable (except as expressly permitted hereunder), license to execute, access, employ, utilize and display the Product, and to authorize End Users to access and use the Product via the ImPACT Site or a Customer Site. For purposes of this Agreement "End Users" shall mean students and players in Customer's respective organizations. Except for the licenses and rights expressly granted under this Agreement, no other licenses or rights are granted by either party by implication, estoppel or otherwise. All such other licenses and rights are reserved unto ImPACT or Customer, as applicable. Except and to the limited extent as may be otherwise specifically permitted by applicable law, Customer may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Product by any means whatsoever, directly or indirectly, or disclose any of the foregoing, except to the extent you may be expressly permitted to decompile the Product under applicable law. Customer may not loan, rent, lease, sublicense, distribute or otherwise transfer all or any portion of the Product to third parties. Customer may not copy the Product and is prohibited from modifying, adapting or translating the Product.
2.3 Configurations; Ownership. ImPACT shall prepare and incorporate Configurations into the Product. ImPACT and its licensors own and shall continue to own all right, title and interest in and to the Product, Configurations, Documentation, ImPACT site, all copyright, patent, trade secret and trademark rights therein and any application or registration related thereto, and the goodwill attaching to any ImPACT intellectual property is and shall remain vested solely in ImPACT. Customer shall never directly or indirectly challenge or contest the ownership or validity of ImPACT's right in or to such intellectual property.
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 or any of the Documentation. ImPACT 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 Customer Materials.
2.5 Other License Restrictions. Customer shall not make any representations, warranties, conditions or guarantees with regard to the Product that are inconsistent with or in addition to those made by ImPACT to Customer hereunder. In addition, except as expressly authorized herein, Customer shall not authorize users to: (i) copy or modify the Product for any purpose; (ii) reverse engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the Product; or (iii) distribute, disclose, market, rent, lease or otherwise transfer the Product or Documentation to any other person, except to End Users as expressly permitted hereunder.
3. PRODUCT INFRASTRUCTURE
3.1 Obligations of ImPACT Subject to Customer's compliance with the terms and conditions of this Agreement, ImPACT shall be responsible for providing and maintaining the Product Infrastructure. The Product Infrastructure is subject to modification by ImPACT from time to time for purposes such as adding new functionality, maximizing operating efficiency and upgrading hardware. ImPACT shall give Customer reasonable prior notice of any such modifications. 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.
3.2 Obligations of Customer; Internet Access and Telecommunications Services. Customer will use the Product in compliance with all applicable federal, state and local laws including, but not limited to the Health insurance Portability and Accountability Act of 1996, as amended ("HIPAA") and the Family Educational Rights and Privacy Act ("FERPA"). The Product Infrastructure will be provided by ImPACT. Customer shall, at its sole expense, be responsible for obtaining Internet access and/or telecommunications services, or upgrading Customer's existing Internet access or telecommunications services, so as to allow access to the Product by Customer. ImPACT shall not be responsible for interruptions in Customer's use of the Product caused by such providers or interruptions in the service provided by such providers.
4. TEST ACCESSIBILITY; SERVICE; REPORTS; USER'S GUIDE; UPDATES
4.1 Test Accessibility; Service. A description of how to access the Product, ImPACT service and report generation is set forth on Schedule A.
4.2 Updates. ImPACT shall provide all Updates to Customer as they are released generally by ImPACT to all of its customers.
5. FEES AND PAYMENTS. In consideration of the license rights and services provided by ImPACT hereunder, Customer shall pay to ImPACT the amounts set forth on the Order Form submitted to ImPACT by the Customer, the terms of which are incorporated herein by reference (the "Product Fees"). Thereafter, all recurring Product Fees shall be due (A) on the first day of each month if such Product Fees recur monthly or (B) within 30 days of the beginning of any additional Term. ImPACT shall invoice Customer for all Product Fees due hereunder. All Product Fees due to ImPACT hereunder shall be paid by Customer in full, without any right of set-off or deduction.
6. WARRANTIES AND LIMITATIONS OF LIABILITY
6.1 Warranty. ImPACT warrants the Product will operate in substantial conformance with the Documentation. Customer must notify ImPACT in writing, within fifteen (15) days following the date on which Customer is first given access to the Product, of any failure of Product to operate in substantial conformance with the Documentation. ImPACT's sole obligation and Customer's sole remedy with respect to any failure of the Product to substantially conform to the specifications therefore is for ImPACT 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 and receive reimbursement of any Product Fees paid hereunder.
6.2 Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS SET FORTH IN SECTION 6.1, IMPACT DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE PRODUCT, THE PRODUCT INFRASTRUCTURE OR ANY OTHER MATTER COVERED BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IMPACT 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 PRODUCT TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. THE PRODUCT AND THE PRODUCT INFRASTRUCTURE ARE WARRANTED ONLY TO CUSTOMER, AND CUSTOMER SHALL NOT EXTEND ANY WARRANTIES OR MAKE ANY REPRESENTATIONS FOR OR ON BEHALF OF IMPACT OR IMPACT'S LICENSORS TO ANY OTHER PERSONS.
6.3 Limitations of Liability. Excepting instances of negligence or willful misconduct and the specific obligations of ImPACT under Section 6.1 above or infringement under Section 7.1, the aggregate liability of ImPACT 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. IN NO EVENT SHALL EITHER PARTY 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.
6.4 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 Indemnification by ImPACT. ImPACT hereby agrees to indemnify and hold harmless Customer from and against all damages, settlement amounts, costs and expenses (including reasonable attorney's fees) that Customer may be required to pay to third parties to the extent such damages, settlement amounts, costs and expenses are attributable to claims: (a) resulting from the negligence or willful misconduct of ImPACT, (b) resulting from the breach of this Agreement by ImPACT, or (c) that the Product infringes or misappropriates a U.S. patent, copyright, trademark rights of a third party, except such claims are due to: (i) a breach by Customer of any provision of this Agreement; (ii) any Customer Materials included in the Product; or (iii) use of the Product in combination with any software, hardware or other equipment not provided by ImPACT 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 be required to indemnify Customer in an amount or amounts, in the aggregate, in excess of the fees and payments ImPACT has received hereunder.
7.2 Additional Obligation of ImPACT. In the event Customer is enjoined or otherwise prohibited, or in ImPACT's opinion is reasonably likely to be enjoined or otherwise prohibited, from using the Product as a result of any claim for which ImPACT is required to indemnify Customer under Section 7.1 above, ImPACT, 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 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 hereunder.
7.3 Exclusive Remedy. Sections 7.1 and 7.2 state the entire obligation of ImPACT and the exclusive remedy of Customer with respect to any actual or threatened claim that the Product, or use thereof by Customer or any End User, infringes or misappropriates the patent, copyright, trademark, trade secret or other intellectual property rights of any person.
8. TERM AND TERMINATION
8.1 Initial Term. The term of this Agreement (the "Term") shall be the term set forth on Schedule A. This Agreement shall automatically terminate upon the expiation of the Term unless the parties, at least thirty (30) business days prior to the end of the Term, agree to renew the Agreement upon terms and conditions mutually agreeable to each party.
8.2 Termination. Either party shall have the right to immediately terminate this Agreement by delivering written notice thereof to the other party if the other party fails to perform or comply with any material term or condition of this Agreement and does not cure said failure within thirty (30) days following its receipt of written notice thereof from the other party. Additionally, Customer may terminate this Agreement at any time with or without cause upon providing ImPACT at least thirty (30) days prior written notice pursuant to Section 9.7. Customer agrees to pay any and all costs related to providing the Customer with a copy of customer data upon termination. Notwithstanding anything stated herein to the contrary, ImPACT may terminate this Agreement immediately and without notice in the event at any point during the term of this Agreement Customer fails to maintain its status as a hospital, sports medicine clinic, institution of secondary or post-secondary education, professional sports team or similar organization receiving post injury services from a licensed Medical Doctor, Doctor of Osteopathic Medicine, Neuropsychologist, Psychologist, Nurse Practitioner or Physician's Assistant in good standing.
8.3 Effect of Termination. Upon the expiration or sooner termination of this Agreement, all license rights of Customer under this Agreement shall automatically and immediately cease and Customer shall promptly cease all uses of the Product, delete all computer programs and files of ImPACT from its computer systems and return to ImPACT or destroy all Documentation in its possession or control. The following shall survive the expiration or sooner termination of this Agreement: the provisions of Sections 6, 7, 8 and 9; any payment obligations of the parties hereunder accruing prior to the date of such expiration or termination; and any other provisions herein expressly surviving such expiration or termination or necessary to interpret the respective rights and obligations of the parties hereunder. Any and all Personal Information in ImPACT's possession will be destroyed by ImPACT following termination unless Customer notifies ImPACT in writing within ten (10) day of termination that Customer wants to receive all such Personal Information. Customer shall be solely responsible for paying ImPACT for any and all reasonable costs and expenses incurred by ImPACT to deliver such Personal Information to Customer.
9.1 Independent Contractors. In making and performing this Agreement, the parties are acting and shall act as independent contractors. No party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
9.2 Force Majeure. In the event that any party is unable to perform its obligations under the terms of this Agreement (other than the obligation to pay amounts due and owing hereunder) because of acts of God, strikes, equipment or transmission failure or other causes reasonably beyond its control, such party shall not be liable to the other party for any damages resulting from such failure to perform or otherwise from such causes.
9.3 Governing Law. This Agreement and its subject matter shall be governed in accordance with the laws of the Commonwealth of Pennsylvania without regard to conflict of laws principles contained therein. All controversies arising hereunder shall be brought in the state and federal courts located in Allegheny County, Pennsylvania. The parties expressly agree that the Uniform Computer Information Transactions Act, as adopted or amended from time to time, shall not apply to this Agreement or the goods and services to be delivered hereunder. Additionally, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
9.4 Public Statements; Use of Trademarks and Copyrighted Materials. Either party may disclose the existence of this Agreement but may not represent to any third party any positions, statements, intentions or other actions on behalf of the other. Neither party shall use the other party's name, trademarks, copyrights or service marks or issue any press release or similar public statement without the other party's prior written consent which shall not be unreasonably withheld or delayed.
(a) The parties (each, a "Recipient") agree to use all information concerning the other party (each, a "Discloser") and their respective subsidiaries and affiliates furnished by or on behalf of the Discloser hereunder (collectively, the "Confidential Information") solely for the purpose of the transactions contemplated hereby. The Confidential Information will be kept confidential by the Recipient and its agents unless such Confidential Information (i) is required to be disclosed by law, (ii) is disclosed pursuant to the Discloser's prior written consent or (iii) otherwise becomes non-confidential as described in 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; (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; (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; or (v) is the subject of a written permission to disclose provided by the Discloser. The provisions of this 9.5 shall survive termination of this Agreement.
(b) In addition to the obligations set forth above in this Section, ImPACT and/or its agents shall hold all information in respect of or relating to End Users and customers, employees, contractors and agents of any kind (including survey answers, age information and any other customer data, for example), as well as any and all personally-identifiable information stored in or processed by ImPACT' hereunder, including by or through its system, (collectively, the "Personal Information") secure and shall comply with all laws and regulations relating to the protection and privacy of the Personal Information, including those obligations as they exist or will exist under the Personal Information Protection and Electronic Documents Act (Canada), HIPAA and FERPA, as applicable. ImPACT shall not disclose any Personal Information to any third party whatsoever (other than subcontractors who have agreed to be bound by nondisclosure obligations comparable to those set out in this subsection (b). All Personal Information and customer data shall be the exclusive property of the Customer, and the Customer hereby grants permission to ImPACT to access and use such Personal Information solely and strictly for the purpose of carrying out its obligations pursuant to this Agreement. ImPACT agrees it shall not use any Personal Information for any other marketing, preference tracking or other purposes not directly related to its performance of its obligations pursuant to this Agreement. The parties acknowledge and agree that such a breach of this section would cause the other party irreparable injury for which an adequate remedy at law is not available. Notwithstanding anything stated herein to the contrary, in the event of such a breach, the non-breaching party shall be entitled to injunctive relief in addition to any other remedies it may have at law or in equity.
9.6 No Medical Advice. The Product and the results obtained from use of the Product do not constitute medical advice. Customer and all End Users 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.
9.7 Miscellaneous. Except in the event an assignment to a wholly-owned entity of a party, the sale of all or substantially all of a party's assets or in the event of a merger of a party with and into another entity, the result of which is the party to this Agreement is not the surviving entity, neither party may assign any of its rights or privileges, or delegate any of its duties or obligations hereunder, in whole or in part, to any third party without the prior written consent of the non-assigning party which consent shall not be unreasonably delayed or conditioned. Any attempted assignment or delegation of this Agreement or any duties or obligations hereunder in violation of the foregoing limitations shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. All notices required to be in writing shall be delivered by hand, sent by recognized overnight courier (such as Federal Express, Airborne or UPS), or mailed by certified or registered mail, return receipt requested, postage pre-paid, addressed to the parties set forth above. This Agreement, including all schedules attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. This Agreement may not be amended, supplemented or otherwise modified except by an instrument in writing signed by both parties. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity or unenforceability of any of the terms of this Agreement in any other jurisdiction. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. The headings contained in this Agreement are for convenience only and shall not affect meaning or interpretation of this Agreement.
By clicking the "I accept" and "Next" buttons below, or by installing, or otherwise using the Product, you agree to be bound by the terms of this Agreement including, without limitation, the warranty disclaimers, limitation of liability, data use and termination provisions below, whether or not you decide to purchase the Product. You agree that this Agreement is enforceable like any written agreement negotiated and signed by you. If you do not agree, you must click the "Decline" button below and you shall have no right to install, use or otherwise benefit from the Product. By entering into this Agreement you hereby represent and warrant to ImPACT and its affiliates that you are a duly authorized representative of your organization and that by clicking "I accept" and "Next" you are acting within your authority and creating a legally binding agreement between your organization and ImPACT.
The "Term" of this Agreement shall be one year from the Effective Date.
General Service Description
The test is reachable over the internet from any industry standard browser with the Flash Player installed.
Customer Configuration and Installation
The test is reachable over the internet from any industry standard browser with the Flash Player installed. There is no installation required beyond the Flash Player (version 6.0 or higher) from Adobe.
ImPACT will confirm that the customer site has access to compatible computers, Internet access and browser software based on ImPACT provided hardware/software/network criteria checklists to use with customers to assess configuration requirements.
Availability and Maintenance
ImPACT 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 administrators will be notified via email 24 hours in advance of any unscheduled down time.
Automated back-ups are performed on all customer data.
ImPACT provides support on-line via e-mail only from 8:00 A.M. EST through 6:00 P.M. EST. Monday through Friday (excluding legal holidays). ImPACT provides technical support only to the Customer. It is Customer's sole responsibility to provide support to End Users.
A presentation entitled "Getting Started with ImPACT" may be downloaded at www.impacttest.com/video/2011GettingStartedwithImPACT.wmv. A document entitled "ImPACT Applications Tech Facts" can be downloaded at https://www.impacttestonline.com/customercenter/pdfs/ImPACT_Applications_Tech_Facts.pdf. This document provides information pertaining to requirements, where to obtain required software (Flash Player), and general tips for troubleshooting. No additional training is required or offered by ImPACT. This document provides information pertaining to requirements, where to obtain required software (Flash Player), and general tips for troubleshooting. No additional training is required or offered by ImPACT.
Reports are available for Customer's authorized personnel to generate and use in managing the Customer's End Users. Additional support functions allow for follow up testing and individual results retrieval by Customer's authorized personnel. The Customer may purchase custom reports from ImPACT upon request from time to time at prices to be set by ImPACT. Report availability will be determined by ImPACT from time to time in its sole discretions and ImPACT is under no obligation to generate customer reports.