IMPACT APPLICATIONS, INC. SERVICES AGREEMENT
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
By checking the box next to “I have read and accept the Services Agreement” below, or by 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, and termination provisions below, whether or not you
decide to purchase the Products. 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
(A) your organization is a medical provider, institution of education, sports team, or similar organization or (B)
you 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 only such organizations
and licensed healthcare providers are permitted to license and use the Products and 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.
As used in this Agreement, the following terms shall have the respective meanings assigned to them below:
“Customer Materials” means all materials and content, such as logos and
Customer’s standard operating procedures, if any, provided to ImPACT Applications by Customer for
incorporation into the Product.
“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 documentation for
the Product available at ImPACT Applications’ web Site 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
“ImPACT Applications Promotional Materials” means the promotional
materials related to the Product that are created or developed by ImPACT Applications.
Applications Site” means one or more web sites owned or controlled by ImPACT Applications or an
affiliate of ImPACT Applications, including training materials contained therein and the Customer Center portal
through which Customer or Test Takers may obtain access to the Product.
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 from time-to-time on or through the ImPACT Applications Site, as such products and services are described
in greater detail in the Documentation, together with any Updates thereto.
Infrastructure” means the hardware, software, and other equipment that ImPACT Applications uses
in connection with its hosting of the Product for Customer hereunder.
Materials” means the Customer Promotional Materials and ImPACT Applications Promotional
“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 Products that ImPACT Applications may make available to Customer from time
to time hereunder.
2. PRODUCT ACCESS; RESTRICTIONS; EXTENSION OF AGREEMENT TO SUBSEQUENT PRODUCTS
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 for the purpose of promoting, advertising, or marketing the Product in
accordance with the Trademark and Logo Usage Guidelines; (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 any tests licensed under this Agreement that are not used by the expiration or
earlier termination of this Agreement will expire such that Customer will not be entitled to use such tests. If a
license to a test expires under this Section 2.1, Customer will not be entitled to any refund, pro-ration, 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 unless otherwise agreed to by the parties in writing.
Sublicenses. Customer may grant sublicenses to any other organization. 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.
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. Prior to using or being provided access to the
Product, each Test Taker shall, if applicable, provide Customer the consent required under the Children’s
Online Privacy Protection Act of 1998 and the regulations thereunder, each as amended (“COPPA”), or any
other consent required under applicable laws in the Territory. 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. Customer shall be and remains primarily liable for any breach of this Section 2.3.
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. 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.
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 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 Products, such as medical device 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 Ownership of Customer Data. The ImPACT
Applications system will aggregate and generate data relating to Test Takers that will relate to medical information
such as age, height, weight, 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. ImPACT
Applications shall be permitted to use aggregated, de-identified Customer Data, for internal and external research,
development, and evaluation purposes, 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 Customer Data by ImPACT Applications shall comply with all applicable rules, laws, and
regulations regarding data protection and privacy.
2.10 Government Approvals. Customer shall, at its
expense, obtain all registrations, licenses, and permits required to perform its obligations, 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 2.10. 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.
2.11 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 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
2.12 Material Breach. Any breach of any of the provisions of Section 2 by Customer shall
be deemed a material breach of this Agreement.
2.13 Applicability of Agreement to All ImPACT Applications
Products; Schedules. Customer acknowledges that ImPACT Applications may offer additional Products during the
Term of this Agreement (each, a “Subsequent Product” and, collectively, the “Subsequent
Products”). Customer and ImPACT Applications acknowledge and agree that Subsequent Products may be licensed by
Customer, subject to all terms and conditions of this Agreement, without a formal written modification of this
Agreement or the execution of a separate contract on the condition that Subsequent Products and pricing terms are
described in a writing by ImPACT Applications and acknowledged by Customer. Such a writing and acknowledgement may
include email exchanges, an online ordering system or portal, or any other means that is mutually acceptable by the
parties without any need to reference this Agreement or any amendment thereto. Performance subsequent to any
acknowledgement or writing as stated herein shall constitute acceptance. ImPACT Applications may also amend
Schedules A, B and C (collectively referred to as the “Schedules”) consistent with the terms of this
Agreement without a written modification of this Agreement, provided that any modifications to the Schedules are
provided to Customer in a manner consistent with this Section 2.13. Upon communication to customer of revisions to
the Schedules, said revisions shall merge into and fully become part of this Agreement without need for a separate
acceptance or novation.
3. PRODUCT INFRASTRUCTURE
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. 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.
4. TEST ACCESSIBILITY; SERVICE; REPORTS; USER’S GUIDE; UPDATES
4.1 Test Accessibility; Service. A description of how to access the Products, ImPACT Applications technical
support, and report generation is set forth on Schedule A.
4.2 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
5. FEES AND PAYMENTS; TAXES; LATE PAYMENTS
5.1 Product Fees - License. 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 (the “Product Fees”) within thirty (30) calendar days of receipt of an invoice. All Product
Fees shall be paid in United States Dollars. Customer shall be responsible for collecting Product 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 Product 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 Product 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 Product 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 Product 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 Product 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
5.2 Product Fees; Optional Annual CIC Fee; CIC Discount Requirements. The Product Fees shall
apply only to Products 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 CIC (defined below), Customer shall pay ImPACT Applications a fee of US$999 per CIC 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. Тhe availability of
discounted pricing for testing Products shall be conditioned upon Customer maintaining at least one Credentialed
ImPACT Consultant (“CIC”) on staff pursuant to Schedule C. 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 Enrolment Date. If
Customer fails to maintain at least one CIC on staff in accordance with this Section 5.2, then Customer shall
automatically revert to the 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.
Increases. ImPACT Applications may, upon sixty (60) days prior written notice to Customer, increase the
Product 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.
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 by 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
Product 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 EXPRESS 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
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; (ii) any Customer Materials; or (iii)
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 the 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”) shall be one year from the
Effective Date. This Agreement, and any amendments to the Schedules as set forth in Section 2.13, shall
automatically renew for additional identical 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 services, a copy of which will be provided to Customer upon request, unless Customer,
at least thirty (30) business days prior to the end of the applicable Term, provides ImPACT Applications with notice
that this Agreement will expire at the end of the applicable Term. As of the Effective Date, any and all prior
agreements related to the licensing of the Products between Customer and ImPACT Applications shall be terminated.
8.2 Termination. Subject to Section 5 of this Agreement, 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 such failure
within thirty (30) days following its receipt of written notice thereof 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. Additionally,
Customer may terminate this Agreement at any time with or without cause upon providing ImPACT Applications at least
sixty (60) days prior written notice pursuant to Section 9.10. 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
government 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 should constitute a violation of any statute,
regulation, or ordinance, Customer may request that this Agreement be renegotiated to eliminate the jeopardy and, if
agreement is not then reached, terminate this Agreement. In the event ImPACT Applications receives formal or
informal notice or, in ImPACT Applications’ sole judgment, is about to receive formal or informal notice from
any regulatory or governmental body that use of any Product in the Territory will be suspended ImPACT Applications
may (i) immediately and without prior notice suspend and/or terminate Customer’s access to such Product and
(ii) shall refund Customer a pro rata portion of the Product Fees actually paid to ImPACT Applications during the
twelve (12) month period immediately preceding the date on which ImPACT Applications suspends or terminates access
to the Product.
8.3 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 proprietary information to ImPACT Applications.
The following shall survive the expiration or sooner termination of this Agreement: (i) the provisions of Sections 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.
9.1 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.
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 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.
9.5 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
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 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
9.6 Privacy Adherence. (A) THIS SECTION 9.6(A) APPLIES ONLY TO CUSTOMERS 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 ImPACT Applications has agreed to abide by the terms and conditions of this Section 9.6 governing
the use of PHI. Unless otherwise defined in this Section 9.6, capitalized terms shall have the meaning established
by 45 CFR §§ 160.103 and 164.501. ImPACT Applications may use or disclose PHI in accordance with this
Section 9.6, provided such use or disclosure by Customer would not violate the Privacy Rule. ImPACT Applications
shall comply with the requirements of the Privacy Rule related to PHI. Specifically, ImPACT Applications shall:
i. Not use or further disclose PHI other than as permitted or required by this Section 9.6 or as required by law
(as such term is defined by the Privacy Rule);
ii. Use appropriate safeguards to prevent use or disclosure of the PHI other than as provided for by this
iii. Report to Customer any use or disclosure of the PHI not provided for by this Section 9.6 of which ImPACT
Applications becomes aware;
iv. Mitigate, to the extent practicable, any harmful effect that is known to ImPACT Applications of a use or
disclosure of PHI not permitted by this Section 9.6;
v. Make PHI available in accordance with 45 CFR § 164.524;
vi. Make available for amendment and incorporate any amendments to PHI in accordance with 45 CFR § 164.526;
vii. Make available the information required to provide an accounting of disclosures in accordance with 45 CFR
viii. Make ImPACT Applications’ internal practices, books, and records relating to the use and disclosure of
PHI received from, or created or received on behalf of, Customer available to the United States Secretary of Health
and Human Services for purposes of determining Customer’s compliance with the Privacy Rule.
(B) Upon written request from Customer or an authorized Data Owner following expiration of this Agreement, ImPACT
Applications shall destroy or cause to be destroyed all PHI 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 data retention policies 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 PHI is retained pursuant to clauses (a) and (b) in the previous sentence, ImPACT Applications will
extend protections of this Section 9.6 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.
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.
9.8 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.
9.9 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
9.10 Miscellaneous. Customer may not 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 ImPACT Applications. Customer’s merger or consolidation with
another entity or health care system shall not be considered an assignment requiring the prior written consent of
ImPACT Applications, provided that the surviving entity assumes all of Customer’s obligations hereunder
without qualification or condition. This Agreement shall be freely assignable by ImPACT Applications upon thirty
(30) days prior written notice to Customer. 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 or UPS), electronic mail (firstname.lastname@example.org), or mailed
by certified or registered mail, return receipt requested, postage pre-paid, addressed to the parties set forth
herein. 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. Except as expressly provided herein, this
Agreement may not be amended, supplemented, or otherwise modified, including any subsequent terms and conditions
referenced on a purchase order or invoice, except by an instrument expressly amending this Agreement 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. This Agreement shall become binding when any one or more counterparts hereof,
individually or taken together, shall bear the original, facsimile, or electronic signature of each of the parties
hereto. This Agreement may be executed in any number of counterparts, each of which shall be an original as against
any party whose signature appears thereon, but all of which together shall constitute but one in the same
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 at http://appstore.com/impacttoolkit.
Customer Configuration and Installation Please see https://www.impacttestonline.com/htmlcc/Files/sports/qrg_enus.pdf
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 back-ups are performed on all Customer data.
ImPACT Applications provides support on-line via e-mail only during Normal
Business Hours, 7:00 a.m. CST to 7:00 p.m. CST, Monday through Friday, excluding legal holidays. ImPACT Applications
provides technical support only to the Customer. It is Customer’s sole responsibility to provide support to
The computer requirements for ImPACT: https://www.impacttestonline.com/htmlcc/Files/sports/qrg_enus.pdf
Device requirements for ImPACT Pediatric and ImPACT Quick Test: 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.
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.
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
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.
ImPACT® Quick Test
Cognitive Impairment Screener™
Usage Rules for Printed or Typed Materials Proper Use of Trademark Symbol
symbol “™” or “®” should be used with the mark the first time that it appears in
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
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.
An eligible “CIC in Training” (defined below) is given automatic access
to the required training courses on the CIC Enrollment Date. 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.
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 independent contractor.
- 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.
- Once the CIC in training is deemed eligible for the CIC program:
- Customer will be invoiced for the annual CIC fee. This fee includes the 1st 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. 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. At this point,
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 CIC in Training will receive a link to the exam via email once accepted into the CIC program.
Detailed instructions to access the test are included in the email.
- The CIC in Training must pass the CIC test with a score of at least 80% to be eligible
for participation in the program.
- 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.
- 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 yearly fee again at the anniversary of
the application date to continue training and testing.
- 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
- If the CIC in Training passes the CIC test:
- The CIC in Training is approved as a CIC and Customer is entitled to the CIC program benefits
set forth in this Agreement.
- The CIC is sent an electronic certificate.
- The CIC is added to our provider directory at https://concussioncareproviders.com/
- Customer has access to discounted pricing.
- All educational and marketing materials are available at https://concussioncareresources.com
- 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 annual 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 included in the initial or renewal fee may change at any time.
- If the CIC fails to complete the required one (1) education course or pay the annual fee 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 discounts
shall be automatically suspended until Customer has a CIC associated with its account.
- Customer’s access to CIC benefits (including discounts) are contingent on Customer maintaining at least
one CIC at each physical location that Customer maintains.