1.1. “Acceptable Use Policy” means the ways and methods you can acceptably use the HeadCheck Services. By u sing the HeadCheck services you agree to comply with our Acceptable Use Policy at www.headcheckhealth.com/acceptable-use (“AUP”)
1.2. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.4. “Application” means the online, software as a service applications provided by HeadCheck via a URL, web-based admin panel and/or mobile access, designated by HeadCheck from time to time, as described by the Documentation.
1.5. “Athlete” means an athlete or patient under the Customer’s program or services, whose Information is stored by you in the Services.
1.7. “Customer Data” means all electronic data or information submitted by Customer or its Users to the Application or HeadCheck in connection with a use of the Application, including but not limited to data pertaining to Athletes.
1.8. “Documentation” means the online user guides made generally available for the Application, as updated from time to time, including without limitation the information available at support.headcheckhealth.com.
1.10. “Free Services” means the Services or other products or features made available by HeadCheck to you on an unpaid trial or free basis.
1.11. “HeadCheck” has the meaning given to it in the preamble.
1.12. “Internal Activities” means use by Clinic in a clinic setting at the Clinic Location and through health care practitioners.
1.13. “Order Form” means the ordering documents (including without limitation online ordering documents and online forms setting out the terms of the engagement between HeadCheck and Customer, and all related promotional and other information) for purchase from HeadCheck that are completed by the parties from time to time. Order Forms will be deemed incorporated herein..
1.15. “Product Specific Terms” means the additional product-related terms that apply to your use of HeadCheck services, our Additional Services and Third party Services. These terms form part of the Customer Terms of Service and can be found at www.headcheckhealth.com/terms.
1.16. “Residual Information” means the ideas, know-how, and techniques retained in the unaided memories of HeadCheck’s personnel who have had access to the Confidential Information of Customer.
1.17. “Services” means professional or support services that HeadCheck may perform as mutually agreed upon by the Parties, such as training and consulting services, and services relating to the implementation, integration or customization of the Application.
1.18. “Start Date” means the first date on which Customer accesses the Services, or sixty (60) days following the date that the Order Form is submitted, whichever occurs first.
1.19. “Subscription Term” means the initial term of your subscription to the applicable Service, as specified on your Order Form(s), and each subsequent renewal term (if any), or as otherwise defined in Product Specific Terms. For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services..
1.20. “Taxes” means all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body.
1.22. “User” means individuals who are authorized by Customer to use the Application, and who have registered to use the Application or as otherwise defined in Product Specific Terms.
2. APPLICATION AND SERVICES.
2.1. Provision of the Application. Subject to the terms and conditions of this Agreement, HeadCheck will make the Application and Services available to Customer and its Users pursuant to this Agreement and all Order Forms during a Subscription Term. HeadCheck may also provide you access to our Free Services at any time by activating them in your HeadCheck account.
2.2. Additional Services. Subject to the terms and conditions of this Agreement, the parties may agree for HeadCheck to provide further Services in an additional Order Form or in a separately executed Statement of Work containing relevant project details. HeadCheck will retain ownership of all deliverables and work product created by HeadCheck in connection with the performance of such Services, excluding any pre-existing technology, materials or Confidential Information (defined below and on Product Specific Terms found at www.headcheckhealth.com/product-terms) supplied by Customer for incorporation into such deliverables or work product.
2.3. Customer Responsibilities. Customer will use the Application and Services solely for the Internal Activities (as defined in the Order Form) of the Customer. Application and Services usage by Affiliates, acquirors or acquirees of Customer would require additional fees and a separate agreement with HeadCheck. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer will: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Application and Services, and notify HeadCheck promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, provincial, federal and foreign laws in using the Application and Services including but not limited to the Personal Information Protection and Electronic Documents Act and the Health Insurance Portability and Accountability Act of 1996. Customer will comply with all HeadCheck instructions relating to Customer’s or its Users’ use of the Application and Services. Customer will meet and conform to the connectivity and other technical specifications and operating requirements and security standards established from time to time by HeadCheck.
2.4. Use Restrictions. Customer will not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Application available to any third party, other than to Users or as otherwise contemplated by this Agreement; (ii) send to or store in the Application infringing, inappropriate, unlawful or tortious material; (iii) send to or store malicious code in the Application; (iv) interfere with or disrupt the integrity or performance of the Application or the data contained therein; (v) attempt to gain unauthorized access to the Application or its related systems or networks; (vi) alter, modify or create derivative works of the Application; (vii) frame or mirror any content forming part of the Application, other than on Customer’s own intranets or otherwise for its own internal business purposes; (viii) reverse engineer the Application for any purpose; or (ix) access the Application for purposes of building a competitive product or service, or copy any ideas, features, functions or graphics of the Application.
2.5. Further Restrictions. Customer will use the Application and Services only in accordance with the terms and conditions of this Agreement, including any limits and restrictions set forth in the applicable Order Forms. HeadCheck may modify or temporarily suspend Customer’s and its Users’ access to and use of the Application and Services for any breach of the aforementioned restrictions or as necessary to comply with any law or regulation.
2.6. Application Operation. HeadCheck may monitor all use of the Application and Services, including for security and operational purposes. HeadCheck may temporarily suspend access to the Application and Services in the event Customer or a User is engaged in, or HeadCheck in good faith suspects is engaged in, any unauthorized conduct (including any violation of the terms of this Agreement, any applicable law or third party right).
2.7. Application Updates. Customer acknowledges that the Application and Services may be updated from time-to-time, including to remove or modify features and functionality that are available as of the Start Date notwithstanding the applicable Order Form, provided that if any such modifications substantially and materially decrease the overall service offering to Customer within three (3) years of the Start Date, that Customer and HeadCheck may agree in good faith to a reasonable adjustment to the applicable Fees.
3.1. Treatment of Confidential Information. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s permission.
3.2. Permitted Disclosure. The obligation of nondisclosure set forth herein will not apply to any Confidential Information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information; (v) the Receiving Party is required to disclose by any applicable law, by any rule or regulation of any court or government agency of competent jurisdiction, or pursuant to legal process; (vi) permitted to be disclosed under this Agreement; provided that the Receiving Party provides the Disclosing Party with prompt written notice of the requirement to disclose, reasonable assistance in the opposing or limiting of such disclosure and limits such disclosure to that strictly required by such court, government agency or legal process.
3.3. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to immediate injunctive and other equitable relief.
3.4. HeadCheck Development. Nothing in this Agreement will prohibit HeadCheck from developing products, concepts, systems or techniques that are similar to those contemplated by or embodied in Customer’s Confidential Information. Notwithstanding the confidentiality obligations of HeadCheck under this Agreement, HeadCheck may during and after the Subscription Term use in its business any Residual Information. “Residual Information”, for purposes of this Agreement, means the ideas, know-how, and techniques retained in the unaided memories of HeadCheck’s personnel who have had access to the Confidential Information of the Customer. In addition if Customer recommends to HeadCheck additional features, functionality, or performance that Customer believes will improve the Application that HeadCheck subsequently incorporates into the Application, then with respect to such recommendations, Customer (a) hereby assigns and will be deemed to assign to HeadCheck all right, title and interest in and to such recommendations, and (b) hereby acknowledges that the Application incorporating such new features, functionality, or performance will be the sole and exclusive property of HeadCheck and all such recommendations will be free from any confidentiality restrictions that might otherwise be imposed upon HeadCheck pursuant to this Section or otherwise.
4. PROPRIETARY RIGHTS.
4.1. Ownership. Subject to the limited rights expressly granted hereunder, HeadCheck and its licensors will retain all right, title and interest in and to the Application, Documentation, technology developed by HeadCheck as part of the Services, and all modifications thereto by whomever made, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer and its Users will not delete or in any manner alter the copyright, trademark, and other proprietary notices of HeadCheck, if any, appearing on the Application or Documentation.
4.2. Customer Data. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, including, but not limited to, uploading the Customer Data to the Application, assuring that all such Customer Data is properly formatted and configured, and is in all respects “Application-ready”.
4.3. Retention and Deletion of Information. HeadCheck agrees to retain Customer Data for a period of 10 years or such other time period as required by all applicable laws (whichever is greater). Such Customer Data will be retained either, at the discretion of HeadCheck, in digital or non-digital form.
4.4. Customer Input. All questions, comments, suggestions or the like provided to HeadCheck, whether in connection with the use of the Application or Services or otherwise, shall be deemed to be non-confidential and HeadCheck shall have no obligation of any kind with respect to such information, and shall be free to reproduce, use, disclose and distribute the information to others without limitation. Furthermore, HeadCheck shall be free to use any ideas, concepts, techniques, or know-how contained in such information for any purpose, including but not limited to, development, manufacturing and marketing of products and services that incorporate such information.
5. WARRANTIES; DISCLAIMERS.
5.1. Warranties. Each Party represents and warrants that it has the power to enter into this Agreement. Customer represents and warrants to HeadCheck that it is authorized to share the Customer Data with HeadCheck for the purposes of providing the Application and Services. HeadCheck represents and warrants to Customer that the Application will perform in all material respects with the Documentation. HeadCheck represents and warrants that the Application, and Customer represents and warrants that the Customer Data, will, in each case, be free of any virus, Trojan Horse, cancelbot, timebombs or other devices developed to disable or to erase, damage or corrupt software, hardware or data. Customer represents and warrants that, to the best of its knowledge, its use of the Application complies with all applicable laws, including but not limited to the Personal Information Protection and Electronic Documents Act and the Health Insurance Portability and Accountability Act of 1996.
5.2. Warranty Disclaimers. The representations and warranties expressly set forth in this Section 6 are the sole and exclusive representations and warranties given by the parties and to the maximum extent permitted by applicable law, the Application and Services are provided on a “where is” and “as is” basis, and the use of the Application and Services is at the sole risk of the customer and the user of the Application and Services. HeadCheck disclaims any and all representations, warranties and conditions to the maximum extent permitted by law, whether express, implied, legal or statutory, including, without limitation, representations, warranties and conditions (a) that the Application or Services will meet Customer’s or Users’ requirements or be available on an uninterrupted, secure or error-free basis, (b) as to the accuracy, reliability, completeness, or correctness of the services or of any test results or other content made available in connection with your use of the services, (c) of merchantability, quality, fitness for a particular purpose, and (D) arising from course of dealing or usage of trade. HeadCheck does not warrant that the application is error free, that Customer or Users will be able to access or use the application without problems or interruptions, or that the HeadCheck Application is not susceptible to intrusion, attack or computer virus infection. HeadCheck will not be liable for damages arising from any breach of, unauthorized access to, misuse of, loss of, corruption of, or intrusion into, Customer Data.
5.3. Not Medical Advice. The Application, including any tests performed using the Application or Services, the results and analyses thereof, and materials provided through the Application Services, are provided for informational purposes only and do not constitute medical advice or other professional advice or opinion and does not represent a comprehensive or specific analysis of your or any other person’s medical situation. HeadCheck does not offer personalized medical advice or patient-specific treatment advice. Only a treating doctor, or other qualified treating healthcare professional, can determine if a diagnosis or treatment described by the Application is appropriate for you or any other person. Use of the Application or Services is not a substitute for a call or visit to, or consultation with, a physician or healthcare professional. If Customer or any User believes that a person (including but not limited to a Athlete) has suffered a concussion or are affected by some other medical condition, whether or not the test results support this belief, such should immediately stop using the Application and Services and seek professional medical advice or consult with a qualified medical professional. A PERSON SHOULD NEVER DISREGARD OR DELAY SEEKING PROFESSIONAL MEDICAL ADVICE, OR ADVISE SOMEONE TO DISREGARD OR DELAY SEEKING PROFESSIONAL ADVICE, BECAUSE OF SOMETHING THAT WAS SEEN ON THE APPLICATION OR SERVICES OR OTHERWISE IN CONNECTION WITH THE USE OF THE APPLICATION. PLEASE CONSULT, AND ADVISE OTHERS TO CONSULT, WITH A DOCTOR, OR OTHER QUALIFIED HEALTHCARE PROFESSIONAL, BEFORE RELYING ON ANY DIAGNOSIS OR TREATMENT DISCUSSED ON OR PRESENTED THROUGH THE APPLICATION OR SERVICES.
5.4. Warnings. Failure to follow all instructions or to heed any warnings or precautions could result in serious injury. The Application requires a certified medical professional to interpret data and make a clinical decision. Misuse of the product by non-certified individuals could lead to incorrect diagnosis and severe and permanent injury up to and including death. Symptoms of a concussion can take up to 72 hours to present themselves and thus introduce a limitation of the Application. If symptoms do not present themselves, a Athlete is returned to sport and receives another blow to the head, it could result in severe and permanent injury up to and including death. Technical issues (including no internet access by the Customer or User) can sometimes occur which restrict access to the Application that stores historical test data and baseline data. The historical test information is helpful to medical professionals making sideline decisions with respect to diagnosing concussions. Using the Application with limited or no internet access could result in an early return-to-play and potentially second impact leading to permanent injury. Inaccurate results can arise due to potential bugs/software glitches, loss or corruption of data, or data being rendered inaccurate. There is a risk that some versions of the Application may be released with bugs which could change the results of some sections of the test. There is a risk of unforeseen circumstances around data corruption. In a worst-case scenario, inaccurate scores could result in a medical professional leaving an athlete in a game when he/she should have been removed.
5.5. Use of the Site by Children. Our Services are not intended to attract children under the age of 13. In accordance with local regulations (such as the Children’s Online Privacy Protection Act “COPPA”), the Company will not knowingly collect or accept personally identifiable information from a child under the age of 13 without a parent’s or guardian’s prior consent.
5.6. The information collected from children under 13 through the Applications are intended only with the consent and under the supervision of a parent or guardian, or, in the case of use through an institutional user, with the consent and supervision of such institutional user acting with authority and consent from the parent or guardian.
6.1. Indemnification by HeadCheck. Subject to Section 8 of this Agreement, HeadCheck, at its expense, will defend and pay any settlement amounts or losses, liabilities, damages, costs and expenses (including reasonable legal fees) awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding alleging that Customer’s use of the Application in accordance with the terms and conditions of this Agreement infringes any Canadian or United States patent issued as of the Effective Date of any third party. The foregoing obligation will not apply with respect to a claim of infringement if such claim arises out of (i) compliance with Customer’s specifications, (ii) use of the Application in combination with any software, hardware, network or system not supplied or approved in writing by HeadCheck where the alleged infringement relates to such combination, (iii) any modification or alteration of the Application (other than by HeadCheck), (iv) where Customer or its Users continues the allegedly infringing activity after being informed of modifications that would have avoided the alleged infringement, or (v) use of the Application other than in accordance with the terms and conditions of this Agreement. If any claim which HeadCheck is obligated to defend has occurred, or in HeadCheck’s determination is likely to occur, HeadCheck may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the allegedly infringing item, (b) substitute a functionality equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate the Agreement and refund to Customer Fees paid by Customer to HeadCheck in an amount pro rated to reflect the period of time between the date Customer was unable to use the Application due to such claim and the remaining days in the Initial Term or current Additional Term, as the case may be.
6.2. Indemnification by Customer. Subject to this Agreement, Customer, at its expense, will defend and pay any settlement amounts or losses, liabilities, damages, costs and expenses (including reasonable legal fees) awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Customer Data or HeadCheck’s use thereof in accordance with the terms and conditions of this Agreement infringes, misappropriates or otherwise violates any intellectual property or other rights of any third party; (ii) arising from a breach of this Agreement or a representation or warranty of the Customer contained in this Agreement; or (iii) arising from any use or non-use of the Application, the Documentation or the Services by Customer, its Users, or any other person authorized by Customer.
6.3. Conditions. The Parties’ obligations under this Section are contingent upon the indemnified Party (i) giving prompt written notice to the indemnifying Party of any claim under this Section, (ii) giving the indemnifying Party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying Party will not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified Party or imposes additional obligations on the indemnified Party, without the prior express written consent of the indemnified Party. The rights and remedies set forth in this Section are the sole obligations of the indemnifying Party and exclusive remedies available to the indemnified Party in the event of an applicable third party claim.
6.4. Remedies. Without intending to limit the remedies available to HeadCheck, Customer acknowledges that damages at law will be an insufficient remedy to HeadCheck in view of the irrevocable harm which will be suffered if Customer violates any of the terms of this Agreement and agrees that HeadCheck may apply for and have injunctive relief in any court of competent jurisdiction specifically to enforce any such covenants upon the breach or threatened breach of any such provisions, or otherwise specifically to enforce any such covenants.
7. LIMITATION OF LIABILITY.
7.1. Limitation of Liability. Customer acknowledges that there are risks inherent in the use of the Application and Services (including any related hardware and internet connectivity) that may result in interruptions or errors in the service, loss of privacy, confidentiality, information or property, as well as other losses, damages or adverse occurrences, regardless of the measures taken to avoid such occurrences. To the maximum extent permitted by law, the entire risk arising out of the access to and use of the Services remains with Customer.
7.2. In no event will HeadCheck, its Affiliates or its respective officers, directors, agents, employees and other representatives (collectively, the “HeadCheck Parties”) be liable to Customer, User, Athlete or any third party in contract, tort, strict liability or otherwise, for any lost profits or for any indirect, incidental, special, exemplary, consequential or punitive damages, or lost profits, revenue or product use, or loss or inaccuracy of data, arising out of or in connection with (a) this Agreement, (b) the use of or inability to use the Services, (c) the reliance (or non-reliance) on any test results, or (d) the inaccuracy or incompleteness of any test results, even if, in any such case, they are reasonably foreseeable and even if HeadCheck has been informed of the possibility of such damages. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, HEADCHECK DISCLAIMS ALL LIABILITY FOR ANY INJURY, DISEASE OR DEATH TO CUSTOMER, USER, ATHLETE OR ANY OTHER PERSON THAT IS CAUSED OR CONTRIBUTED TO BY THE SERVICES OR THE ACCESS TO OR USE THEREOF (INCLUDING WITHOUT LIMITATION ANY INJURY, DISEASE OR DEATH CAUSED OR CONTRIBUTED TO BY ANY RELIANCE OR NON-RELIANCE ON ANY TEST RESULTS). NOTWITHSTANDING THE FOREGOING, CUSTOMER’S SOLE REMEDIES FOR BREACH OF THE APPLICATION WARRANTIES OF HEADCHECK SET FORTH IN SECTION 6.1 SHALL BE REPAIR OR REPLACEMENT OF THE APPLICABLE FUNCTIONALITY IN THE APPLICATION.
7.3. THE TOTAL LIABILITY OF HEADCHECK PARTIES TO CUSTOMER IN RESPECT OF ALL CLAIMS UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT FOR THE 12 MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
7.4. Data Risk. By transmitting or receiving any data or information to or from HeadCheck or any of its Affiliates through Customer’s use of the Application or Services or otherwise, Customer assumes all of the risks associated therewith, including the interception of such data or information by third parties in any manner whatsoever, errors in the transmission of such data or information, and the risk of loss or corruption of any such data during transmission, storage or otherwise. Under no circumstances shall HeadCheck be responsible for user error including, but not limited to, erroneous data input, misuse of the Application or Services, incorrect interpretation of data or missing data, or use in contravention of this Agreement or the Documentation.
7.5. Contract. The above limitations and restrictions are fundamental elements of the bargain between HeadCheck and Customer.
8.1. Relationship. The relationship between the Parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents. This is a non-exclusive arrangement.
8.2. Force Majeure. HeadCheck will not be responsible for any failure to perform its obligations under this Agreement caused by circumstances beyond HeadCheck’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving HeadCheck employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within HeadCheck’s possession or reasonable control, and denial of service attacks.
8.6. Severability. A determination that any provision of this Agreement is invalid or unenforceable will not affect the other provisions of this Agreement.
8.7. Headings. Section headings are for convenience of reference only and will not affect the interpretation of this Agreement.
8.8. Governing Law and Venue. This Agreement will be governed by the laws applicable in British Columbia. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The Parties hereby submit to the exclusive jurisdiction of the British Columbia courts for any dispute arising out of the Agreement.
8.9. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
8.10. No Assignment. Customer may not assign this Agreement or any of its rights, by operation of law or otherwise, or delegate any of its duties hereunder, in whole or in part, without HeadCheck’s prior written consent (which will not be unreasonably withheld). Any purported assignment in contravention of the foregoing will be void ab initio. HeadCheck may assign this Agreement without the consent of Customer. Subject to the foregoing, this Agreement will be binding on, inure to the benefit of, and enforceable by and against the Parties and their respective successors and permitted assigns.
8.11. Further Assurances Each of the Parties hereto will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other Party hereto may reasonably require from time to time for the purpose of giving effect to this Agreement and will use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.
8.12. Notices. All notices required to be sent hereunder will be in writing and will be deemed to have been given upon (i) on the date it was delivered by courier, or (ii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatories of this Agreement and the relevant Order Form, or to such other address or individual as the parties may specify from time to time by written notice to the other Party, or (iii) the date after the date sent by email to the email address set forth above, or such other email address as the parties may specify from time to time.