APPLICATIONS, INC.™ SERVICES AGREEMENT Healthcare Provider with CIC Option
- Read Carefully - Notice to User:
License Agreement ("Agreement") is a legal document between you
and ImPACT Applications, Inc. ("ImPACT"). It is important
you read this document before using the ImPACT Product (as defined below) 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 the Product.
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 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.
As used in this Agreement, the following terms shall have
the respective meanings assigned to them below:
means all materials and content, such as logos and Customer’s standard
operating procedures, if any, provided to ImPACT 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 End Users
access the Product.
standard set-up and activation services for the Product.
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
“End User” means people
other than Customer who are allowed by Customer or a Customer sublicensee to
access the Product via the ImPACT Site or a Customer Site.
“ImPACT Promotional Materials” means the promotional materials related to the Product that are created or
developed by ImPACT.
“ImPACT Site” means one
or more web sites owned or controlled by ImPACT or an affiliate of ImPACT
through which Customer or End Users may obtain access to the Product.
“Normal Business Hours”
means 7:00 a.m. CST to 7:00 p.m., CST, Monday through Friday, 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 products and services available from time-to-time on or through the
ImPACT Site, as such Products are described in greater detail in the
Documentation, together with any Updates thereto.
means the hardware, software, and other equipment that ImPACT uses in
connection with its hosting of the Product for Customer hereunder.
“Quality Standards” means the
quality levels that IMPACT maintains in connection with the ImPACT Marks (as
identified on Schedule B hereto).
terms and conditions of use for the Product including, but not limited to,
which terms and conditions of use shall be accessible to users of the Product
through a login or other access screen, as such terms and conditions of use are
amended by ImPACT from time to time.
“Territory” means the
“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; RESALE PROVISIONS; EXTENSION OF AGREEMENT TO SUBSEQUENT PRODUCTS
2.1 Limited License.
Subject to Customer’s compliance with the terms and conditions of this
Agreement, ImPACT hereby grants to Customer, during the Term, a non-exclusive,
non-transferable (except as expressly permitted hereunder), license: (a) to
access the Product, to use the Product in the Territory, and to authorize End
Users to access and use the Product, via the ImPACT Site or a Customer Site;
(b) to use the ImPACT Marks, 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 at the Quality Standards
specified in this Section 2; and (c) to use the ImPACT Promotional Materials,
in the Territory and solely for the purpose of promoting, advertising, or
marketing the Product in accordance with the Quality Standards specified in
this Section 2.
Customer may grant sublicenses to any group that consists of End Users, or any
other organization whose membership consists of End Users. 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 of any sublicense granted by Customer relating to this Agreement within
thirty (30) calendar days thereafter. ImPACT reserves the right to terminate
any sublicense upon cause shown and reasonable notice to Customer.
access to and use of the Product, Documentation, ImPACT Marks, and ImPACT
Promotional Materials by Customer and End Users, as the case may be, shall be
or being provided access to the Product, each End User shall first have
approved by ImPACT. Customer shall not take any action that would mask,
that ImPACT may include in the Product from time to time. Customer agrees to
(i) promptly notify ImPACT should Customer become aware that any End User has
ImPACT in any actions that ImPACT may elect to take with respect to any End
such End User’s access to the Product.
ImPACT shall prepare and incorporate Configurations in order to enable access
to the Product. ImPACT and its licensors own and shall continue to own all
right, title, and interest in and to the Product and such Configurations after
any Configurations are incorporated therein; provided however that Customer or
its licensors shall own and continue to own all right, title, and interest in
and to the Customer Materials. Customer hereby grants to ImPACT a royalty-free
license to prepare the Configurations and to incorporate said Configurations
into the Product as permitted hereunder.
2.5 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, any of the Documentation, or ImPACT
Promotional Materials. Unless otherwise agreed to in writing by ImPACT,
Customer shall state on its website, on all Products, and on or in all
Promotional Materials and otherwise that: (i) the ImPACT Marks are “licensed
from ImPACT APPLICATIONS, INC.”; (ii) the Products are “licensed from ImPACT
APPLICATIONS, INC.”; and (iii) the Products are subject to copyright, as the
case may be.
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 Marks in such style, appearance, and manner as
ImPACT shall, in its sole discretion, specify or approve in writing and solely
on or in connection with the Product or Promotional Materials and in strict
accordance with all of the applicable Quality Standards; and (ii) create or
develop Customer Promotional Materials; provided, however, that Promotional
Materials may only be used in connection with the Product pursuant to this
Agreement. ImPACT shall retain all right, title, and interest in and to
(including copyrights and trademarks) the ImPACT Marks and ImPACT Promotional
Materials, and Customer grants to ImPACT all right, title, and interest
in and to any Customer Promotional Materials related to the Product. Customer
is expressly prohibited from modifying the ImPACT Marks or ImPACT Promotional
Materials unless expressly agreed to in writing and such modifications are
expressly approved in writing by ImPACT. Customer will not use the ImPACT
Marks in conjunction or association with any other trademark, trade name, or
logo, or place the ImPACT 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,
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 same as originating from ImPACT. Customer will comply as
soon as reasonably practicable (but in any event within twenty (20) days) with all
reasonable instructions furnished by ImPACT from time-to-time with respect to
the style, appearance, and manner of
use of the ImPACT Marks on the Product or Promotional Materials, including
instructions to revise the style, appearance, or manner of use as ImPACT may
specify from time to time. Whenever the ImPACT 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 is authorized to list Customer in or on ImPACT
Promotional Materials, including on ImPACT’s Web site, as a licensed provider
of services employing the Product. An ImPACT Mark usage guide is attached to
this Agreement at Schedule
2.7 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 End User 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 as
set forth in Section 2.1 hereto.
2.8 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 unto ImPACT or Customer, as applicable. ImPACT 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 Marks for the purpose of promoting, advertising, or marketing the
Product; and (iii) grant promotional, advertising, and/or marketing rights to
2.9 Reseller Rights.
Company hereby grants to Customer, during the Term, a non-exclusive and
non-transferable right to promote, advertise, market, and distribute the
Products to customers within the Territory under the ImPACT Marks and according
appointment. Customer shall immediately inform ImPACT of any inquiries
regarding the Product received by Customer from third parties located outside
of the Territory and shall not attempt to resell the Product to such third
parties without ImPACT’s prior written consent. ImPACT reserves the right to
sell or license directly to any customer or other third party in the Territory
and may appoint other resellers in the Territory from time to time in its sole
discretion. Customer shall not be entitled to any compensation whatsoever in
case of any sale or license of Products in the Territory by ImPACT or by a
third party reseller. To the maximum extent permitted by applicable law,
Company reserves the right to restrict Customer from marketing or reselling the
Products to any entity or person with a pre-existing customer relationship with
may suspend the authorization granted under this Section 2.9, during any period
in which Customer is past due on any amounts owing to ImPACT.
2.10 Promotional Activities.
Customer shall have the right to create and distribute Customer Promotional
Materials for the Products resold pursuant to this Agreement. Customer may
Conditions of Use, modify ImPACT Promotional Materials; provided, however, such
ImPACT Promotional Materials may only be used in connection with Products
resold pursuant to this Agreement. ImPACT shall retain all right, title, and
interest in and to (including copyrights and trademarks) the ImPACT Promotional
Materials. Customer shall be responsible for any modifications to the ImPACT
Promotional Materials. Customer will provide ImPACT with a copy of any
Promotional Materials created or developed pursuant to this Section 2.10 for
ImPACT’s approval prior to use or distribution. ImPACT agrees to provide
Customer with written notice of approval or rejection of such materials within
ten (10) calendar days of ImPACT’s receipt of such materials. Customer agrees
that such promotional or advertisement activities shall comply with the Terms
of Use and the Conditions of Use. Customer grants ImPACT all right, title, and
interest in and to any modifications to the ImPACT Promotional Materials.
2.11 Product Representations.
shall make no, and shall indemnify ImPACT for and against any and all claims
arising out of, representations or warranties concerning quality, performance, or other
characteristics of the Products other than those which are consistent in all
respects with, and do not expand the scope of, the representations and
warranties made by ImPACT for such Products. Customer may not write or otherwise
create any additional Product Documentation or authorize the creation thereof
without ImPACT’s express prior written consent. The only Product Documentation
that Customer is authorized to sell or distribute is official ImPACT Product
Documentation produced by ImPACT. Customer agrees that its obligation to
indemnify ImPACT for and against any and all claims arising out of any warranty
that is inconsistent with or additional to the warranties contained in this
Agreement shall not be affected, reduced, or impaired by the fact that Customer
is required by local mandatory law to provide such inconsistent or additional
2.12 Ownership of Customer
Data. The ImPACT system will aggregate and generate data relating to End
Users 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 may determine from time-to-time would be useful in
improving the performance of the Product (the “Customer Data”).
Customer is the sole exclusive owner of the Customer Data. ImPACT shall be
permitted to use aggregated, de-identified Customer Data, for internal and
external evaluation purposes provided that such information does not identify
an individual and there is no reasonable basis to believe that the information
can be used to identify an individual. Any use of Customer Data by ImPACT shall
comply with all applicable U.S. rules, laws, and regulations regarding data
protection and privacy.
2.13 Government Approvals.
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 with such documentation as ImPACT may request to confirm Customer’s
compliance with this Section 2.13 and agrees that it shall not engage in any
course of conduct that, in ImPACT’s reasonable belief, would cause ImPACT to be
in violation of the laws of any jurisdiction.
2.14 Material Breach.
Any breach of any of the provisions of this Section 2 by Customer shall be
deemed a material breach of this Agreement.
2.15 Applicability of
Agreement to All ImPACT Products and Pricing Changes. Customer
acknowledges ImPACT may offer additional Products during the term of this
Agreement (each a “Subsequent Product” and collectively, the “Subsequent
Products”). Customer and ImPACT acknowledge and agree 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 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 may also amend Schedule A consistent with the terms of this Agreement without a written modification of
this Agreement, provided that any modifications to Schedule A are
provided to Customer in a manner consistent with this section. Upon
communication to customer of revisions to Schedule A, said revisions
shall merge into and fully become part of this Agreement without need for a
separate acceptance or novation.
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 and software. Customer
understands and acknowledges such modifications may require changes to
Customer’s Internet access and telecommunications infrastructure to maintain
Customer’s desired level of performance. ImPACT will provide industry standard
web hosting and connectivity and use reasonable efforts to provide Customer
99.99% up time operation; provided, however, Customer acknowledges and agrees
that downtime may occur for
systems 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 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, 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 End Users. 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.
ACCESSIBILITY; SERVICE; REPORTS; USER’S GUIDE; UPDATES
4.1 Test Accessibility;
Service. A description of how to access the Products, ImPACT technical
support, 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. Any and all Updates offered by ImPACT to its
customers during the term shall be provided to Customer free of charge.
AND PAYMENTS; TAXES; LATE PAYMENTS
5.1 Product Fees - License.
In consideration of the license rights provided by ImPACT hereunder, Customer
shall pay to ImPACT, within thirty (30) calendar days of the Effective Date or the
first day of any Renewal Term, the amounts set forth on Schedule A (the
“Product Fees”). Customer shall be responsible for collecting
Product Fees from any sublicensees and shall remit the same to ImPACT according
to the terms set forth in this Section 5. ImPACT shall electronically invoice
Customer for all Product Fees due hereunder and it is Customer’s sole
responsibility to update ImPACT regarding any changes in Customer’s electronic
contact information. All Product Fees due to ImPACT shall be paid by Customer
in full without right of set-off or deduction. In the event all amounts due to
ImPACT are not paid when due, ImPACT 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’s compliance with all applicable U.S. federal,
state, and local rules, laws, and regulations regarding data protection, data
retention, and data privacy of Customer Data, including but not limited to
HIPAA (defined below). Failure to pay 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 Section 8.
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 may offer,
including without limitation separate modules, professional services, or third
party products offered by ImPACT from time to time, all of which ImPACT may, in
its sole discretion, separately offer and price. ImPACT may
offer special promotions or discounts on Products from time to time and as a
result, may amend pricing of the Products upon thirty (30) days prior written
notice to Customer. In the event Customer opts to maintain a CIC (defined
below) during the Initial Term and each Renewal Term, Customer shall pay ImPACT
a fee of US$999 upon ImPACT’s acceptance of a Customer affiliate into the CIC
program and each anniversary thereof pursuant to the payment terms set forth in
During the Initial Term and any Renewal Term of the Agreement, the availability
of discounted pricing for testing Products shall be conditioned upon Customer
maintaining at least one Credential ImPACT Consultant (“CIC”) on
staff pursuant to Schedule 5.2. The CIC discount set forth on Schedule
A shall be available upon the Effective 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 5.2 within ninety (90) calendar days
of the Effective Date. If Customer fails to maintain at least one CIC at each
physical location in accordance with this section then Customer shall
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.
5.3 Fee Increases.
Following the Initial Term, ImPACT may, upon sixty (60) days prior written
notice to Customer, increase the Product Fees charged to Customer hereunder to
account for increases in the fees and other amounts charged by third parties to
ImPACT in respect of the Product or any services provided to Customer
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’s property or income. ImPACT may elect to include said
taxes, duties, and charges as separately itemized charges in its invoices to
5.5 Late Payments. In
the event any amounts due to ImPACT hereunder are not paid when due, ImPACT
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; 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.
AND LIMITATIONS OF LIABILITY
6.1 Warranty. ImPACT
warrants that Product will operate in substantial conformance with the
Documentation. Customer must notify ImPACT in writing, within ten (10) 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. Customer must also notify ImPACT in writing, within ten (10)
days following the date of performance of any services by ImPACT hereunder, of
any failure by ImPACT to perform said services in a professional manner and in
accordance with the terms and conditions of this Agreement. ImPACT’s 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 to perform services hereunder in a professional manner and in
accordance with the terms and conditions of this Agreement, 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.
ImPACT represents and warrants that it is not a Sanctioned Person or Entity.
For purposes of this Agreement, the term “Sanctioned Person or Entity” means a
person or entity that has been excluded by the Office of the Inspector General
of the Department of Health and Human Services from participation in Medicare,
Medicaid, or any state health care program (defined at 42 CFR § 1001.2) pursuant
to 42 CFR Part 1001. ImPACT shall notify Customer within ten
(10) days after it receives notice that it is a Sanctioned Person or Entity.
6.2 Warranty Disclaimer.
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 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 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. 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. EXCEPTING
INSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND THE SPECIFIC OBLIGATIONS
OF IMPACT UNDER SECTION 6.1, 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
6.4 Consumer Protection
Laws. THE PRODUCT IS A BUSINESS PRODUCT, 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 APPLY.
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 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 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
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.
8.1 Term. The
initial term of this Agreement (the “Initial Term”) shall be one
year from the Effective Date. This Agreement, and any amendments to Schedule
A as set forth in Section 2.15, shall automatically renew for additional
identical terms (each a “Renewal 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 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 shall be terminated.
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. Additionally, Customer may terminate this Agreement at any time with or
without cause upon providing ImPACT at least ninety (90) days prior written
notice pursuant to Section 9.9. 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 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
8.3 Effect of Termination.
Upon the earlier of the expiration or termination of this Agreement, or due to
Customer’s insolvency or bankruptcy: (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 from its computer systems and
return to ImPACT 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 Marks and the Promotional
Materials, including removing the ImPACT 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 same 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.
Customer agrees upon the effective date of such termination to pay all sums due
to ImPACT, return all proprietary information to ImPACT, and provide ImPACT
with all outstanding reports, including lists of prospects, lists of
sublicensees of Product, copies and/or originals of sublicensee acknowledgments, Agreements
and details of any agreements or arrangements under which support has been
subscribed for by licensees of Product for a period beyond the effective date
of termination, and agrees to assign such agreements or arrangements to ImPACT
or to a third party company designated by ImPACT. 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
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, 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,
parties hereby consent to the exclusive jurisdiction of the State and Federal
Courts located in Allegheny County, Pennsylvania and hereby agree to waive any
claim or defense of inconvenient forum. 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
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. Neither party shall
use the other party’s name, trademarks, 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.
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; (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.
9.6 Privacy Adherence.
The parties are committed to complying with the Standards for Privacy of
Individually Identifiable Health Information (the “Privacy Standard”)
promulgated in accordance with the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”). ImPACT understands that
Customer is a “covered entity” as defined by HIPAA. In the course of carrying
out its obligations in accordance with this Agreement, ImPACT will have access
to individually identifiable health information of Customer patients, thereby
creating a Business Associate relationship between Customer and ImPACT. In
compliance with HIPAA, Customer has requested ImPACT, and ImPACT has agreed, to
abide by the terms and conditions of this Section 9.6 governing the use of
Protected Health Information (“PHI”). Unless otherwise defined
in the Section 9.6, capitalized terms shall have the meaning established by 45
CFR §§ 160.103 and 164.501. ImPACT may use or disclose PHI in accordance with
this Section 9.6 provided such use or disclosure by Customer would not violate
the Privacy Standard. ImPACT shall comply with the requirements of the Privacy
Standard related to PHI. Specifically, ImPACT shall:
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 Standard);
appropriate safeguards to prevent use or disclosure of the PHI other than as
provided for by this Section 9.6;
to Customer any use or disclosure of the PHI not provided for by this Section
9.6 of which ImPACT becomes aware;
to the extent practicable, any harmful effect that is known to ImPACT of a use
or disclosure of PHI not permitted by this Section 9.6;
PHI available in accordance with 45 CFR § 164.524;
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 § 164.528;
viii. Make ImPACT’s
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.
Upon expiration of this Agreement
ImPACT shall either return to Customer (at Customer’s sole expense) or destroy
all PHI received from, or created or received on behalf of Customer (including
all copies thereof) in ImPACT’s possession or under ImPACT’s control; or if
return or destruction is not feasible, provide Customer with a written notice
in which ImPACT describes why return or destruction is not feasible and expressly
agrees in writing to extend protections of this Section 9.6 to the PHI and
limit further uses and disclosures to those purposes that make return or
9.7 Third Party
Beneficiaries. End Users are not and will not be deemed to be third party
beneficiaries of this Agreement, or to have any contractual relationship with
ImPACT by reason of this Agreement. Customer hereby agrees to indemnify and
hold harmless ImPACT from any and all damages, costs, and expenses (including,
without limitation, reasonable attorneys’ fees) suffered or incurred by ImPACT
or its affiliates in connection with any claims brought by End Users against
ImPACT or its affiliates that arise from or in connection with the Product or
any other matter covered by this Agreement.
9.8 Insurance. ImPACT
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.
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 operational of law or
otherwise, to any third party without the prior written consent of ImPACT.
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 provided that the surviving entity assumes all of Customer’s obligations
hereunder without qualification or condition. This Agreement shall be freely
assignable by ImPACT 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, 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. This Agreement shall become
binding when any one or more counterparts hereof, individually or taken
together, shall bear the original or facsimile 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
By clicking the "I accept" and "Next"
buttons below, or by installing, or otherwise using the Program, 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 Program. You agree
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
Program. 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 by clicking "I accept" and "Next" you are
acting within your authority and creating a legally binding agreement between
your organization and ImPACT.
“Initial Term” of this Agreement shall be one year from the Effective Date.
test is reachable over the internet from any industry standard browser.
Configuration and Installation
see https://www.impacttestonline.com/htmlcc/Files/sports/qrg_enus.pdf for
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
see https://www.impacttestonline.com/htmlcc/Files/sports/qrg_enus.pdf for
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
are notified via email 24 hours in advance of any scheduled down time.
encrypted back-ups are performed on all Customer data.
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 provides technical support only to the Customer. It is Customer’s sole
responsibility to provide support to End Users.
are the computer requirements for Online ImPACT: https://www.impacttestonline.com/htmlcc/Files/sports/qrg_enus.pdf
are available for Customer’s authorized personnel to generate and use in
managing the End Users. Additional support functions allow for follow up
testing and individual results retrieval by Customer’s authorized personnel.
The Customer may request and purchase custom reports from ImPACT at prices set
by ImPACT. Report availability is determined by ImPACT from time to time in
its sole discretion and ImPACT is under no obligation to generate custom
for print and web related materials.
February 1, 2017
more information on the application
the ImPACT brand, please contact the
marketing department at 877-646-7991.
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”) 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 name and identity.
the purposes of these Guidelines, "ImPACT 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 including, but not limited to, the trademarks and service marks listed
on the ImPACT Trademark List as set forth below.
considers its trademarks and service marks to be among its most valuable
intellectual property assets. As such, ImPACT 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.
Rules for Printed or Typed Materials
Use of Trademark Symbol
trademark symbol “™” or “®” should be used with the mark the
first time that it appears in any copy.
Capitalization of Letters
form of the text should always appear as follows “ImPACT” with the initial
letter “I” capitalized, a lower case “m” and the letters “PACT” capitalized
with no spaces in between.
Rules for ImPACT Logos
Usage Guidelines for ImPACT 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’s sole and absolute
eligible “CIC in Training” (defined below) is given automatic access to the
required training courses on the Effective Date. Determinations regarding
eligibility are made by ImPACT in its sole and absolute discretion.
Eligibility criteria may be subject to change from time to time with or without
Criteria: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 (each a “CIC
in Training”). A CIC in Training must be either a Customer employee or
CIC in Training must apply for the CIC program online at https://www.impacttest.com/training/become_a_cic/.
The CIC in Training must create a video on-demand training account and fill out
the CIC in training is deemed eligible for the CIC program:
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. Current 1st year CIC courses can be found here: https://www.impacttest.com/training/events/page/cic_yr_1.
Customer will be immediately eligible for the CIC discount in Schedule A 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
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
CIC in Training must pass the CIC test with a score of at least 80% to be
eligible for participation in the program.
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.
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.
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 on testing.
the CIC in Training passes the CIC test:
CIC in Training is approved as a CIC and Customer is entitled to the CIC program
benefits set forth in this Agreement.
CIC is sent an electronic certificate.
CIC is listed on the ImPACT website as an approved CIC within three business
days of approval.
has access to the Client Resource Center and discounted pricing. Marketing
materials are available via a CIC login.
year after initial approval, the CIC is required to take three ImPACT
continuing education courses to maintain CIC status. These courses are taken in
the form of lunch and learns, single-topic webinars, or single topic video
on-demand courses. A maximum of three courses are 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. Live workshops, Fast Tracks, and
multiple-topic courses are not included in the yearly continuing education allotment.
courses included in initial or renewal fee may change at any time. Current
continuing education CIC courses can be found here: https://www.impacttest.com/training/events/page/cic_ce
the CIC fails to complete the required three continuing education courses
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 website and discounts
shall be automatically suspended until Customer has a CIC associated with its