TERMS OF SERVICE
These Terms of Service constitute a legal agreement between you (“you,” “your,” “the user,” and “Customer”) and Brain Power Youth, LLC (“Company”). These Terms of Service govern your access to and use of the web-based software-as-a-service solution described herein which is designed and is licensed to Company to assist in assessing cognitive functions, such as memory, attention, reasoning and planning, to patients and download reports for offline analysis (the “Platform”). The Platform allows you to participate in testing designed to provide insight into you or your child’s thinking skill preferences. Please read the Terms of Service carefully before you start to use the Platform. By accessing and using the Platform, you accept without modification all of the terms, conditions, and notices contained in these Terms of Service. If you do not agree to these Terms of Service or the Company Privacy Policy you must not access or use the Platform.
I. DEFINITIONS
A. “Personal Information” means information about an identifiable individual or any other information that is subject to Privacy Laws that Customer provides or for which Customer provides access to Company, or information which Company creates or obtains on behalf of Third Party Service Provider or Customer, in accordance with these Terms of Service that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers). Personal information does not include:
(i) Publicly available information from government records; (ii) De-identified or aggregated consumer information; or (iii) information we obtain the categories of personal information listed above, directly from you or from third-parties that interact with us in connection with the services we perform.
B. “Privacy Laws” means any applicable privacy, personal data protection, or other similar laws.
C. “Customer Data” means all data, information and content provided by a Customer, or on such Customer’s behalf, though, to, or on the Platform, including answers to test questions, responses to prompts for information or other content provided by a Customer and any test results generated by or through the Platform on the basis thereof.
D. “Law(s)” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirements of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
E. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
F. “Service” means the Software-as-a-Service offering that is owned by Creyos and licensed to be utilized by Company and for which access limited is granted Customer pursuant to these Terms of Service and the agreement between Company and Creyos.
G. “Third Party Service Providers” means organizations or other third parties, or otherwise contracted with Us, to view, access, and utilize Data, Customer Data and Personal Information and for the ability to use the Service.
II. USE OF THE PLATFORM
A. If you are registering an account or using the Platform on behalf of an individual or entity other than yourself, you represent that you are authorized by such individual or entity to accept the terms of these Terms of Service on such individual or entity’s behalf. If you do not qualify under these terms, do not use the Platform or Services. Registration for use of the Platform is void where prohibited by applicable law, and your right to access the Platform is revoked in those jurisdictions. If you do not agree to the terms of these Terms of Service, you must not access or use the Platform.
B. You agree that you are the parent or legal guardian of any minor child whom you permit to use and access the Platform. You further covenant and agree that as the parent or legal guardian of such minor child, you have the legal right to act on such minor child’s behalf and that you agree to all of the terms and conditions set forth in these Terms of Service both in your individual capacity, and as the parent or legal guardian of such minor child.
C. You acknowledge that although some of the content, text, data, graphics, images, information, suggestions, and other materials (collectively, “Information”) that is provided to you on the Platform (including information provided in direct response to your questions or postings) may be provided by individuals in the medical profession, the provision of such Information does not create a medical professional/patient relationship, and does not constitute an opinion, medical advice, or diagnosis or treatment of any particular condition.
D. You acknowledge and agree that Company does not recommend or endorse any specific tests, doctors, dentists, health care providers, procedures, opinions, or other information that may appear on the Platform. If you rely on any of the Information provided by or on the Platform, you do so at your own risk.
E. You acknowledge and agree that any information sent or received over the Internet is generally not secure.
F. The Platform and any tools provided on the Platform are provided for general and illustrative purposes only. The Platform and any such tools are not medical advice, nor are
they intended to be a substitute therefor. You should not act or abstain from acting based on any information provided by the Platform or any such tool available on the Platform.
G. Use of the Platform is unauthorized in any jurisdiction where the Platform may violate any Laws or regulations. You agree not to access or use the Platform in any such jurisdictions. You agree that you are responsible for compliance with all applicable laws or regulations. Any contravention of this provision (or any provision of these Terms of Service) is entirely at your own risk.
III. TERM AND AUTOMATIC RENEWAL
A. The following terms shall be applicable in the event that Customer has purchased a monthly subscription for the use of the Platform as opposed to a single-use license.
- The initial term of the limited license granted to the Customer for use of the Platform under these Terms of Service is for one year from the date Customer first acquires access to the Platform from Company.
- Thereafter, the limited license granted herein shall automatically renew for consecutive renewal terms of twelve months. If a party does not want the Services to renew, then it must provide the other party written notice to this effect at least thirty (30) days prior to the end of the then-current term. This notice of non-renewal will be effective upon the conclusion of the then- current term.
- Unless Customer cancels Customer’s subscription before the renewal date, Customer authorizes Company to charge your next subscription period fee to your authorized payment method. Customer authorizes Company to continue billing the payment method until termination or cancellation.
IV. THIRD-PARTY ACKNOWLEDGEMENTS
The Platform consists of third-party software and other copyrighted material. By executing these Terms of Service, You acknowledge and agree to the fact that the Platform has been licensed to us by Creyos, a third party-licensor which has licensed the use of this web-based software-as- a-service solution. Use of the Creyos Platform is subject to the Creyos Terms of Service (https://creyos.com/terms-of-service) and to the Creyos Privacy Policy (https://www.creyos.com/privacy-policy). Company has no control over, and cannot guarantee, the advice and recommendations provided in Platform. Company will not be liable for any damages or injury arising from, relating to, and/or resulting from the use of the Platform or Services whatsoever.
V. NO REFUND AND NO CHARGEBACK POLICY
A. All Sales Are Final: Once you subscribe to our service and gain access to the Platform, all sales are final, and no refunds will be issued for any reason. By using the Platform, you acknowledge and agree that any payments made to the Company are non-refundable.
B. Termination: The only grounds for Customer’s termination of the subscription is a proven failure by the Company to provide access to the Platform as per the terms of the subscription agreement.
C. Waiver of Refund Rights: Under no condition shall Customers have any rights to a refund, and Customers irrevocably waive and release any right in law or equity to claim any refund once the Customer has used the Platform.
D. Disputes: Should you initiate a credit card dispute without first contacting our customer support, you agree to waive your right to receive any refunds or credits until the dispute is resolved.
VI. NO MEDICAL ADVICE IS PROVIDED
THE INFORMATION THAT YOU OBTAIN OR RECEIVE FROM THE PLATFORM, IS FOR INFORMATIONAL PURPOSES ONLY. THE INFORMATION PROVIDED ON THE PLATFORM AND IN ANY OTHER COMMUNICATIONS FROM OR PROVIDED THROUGH THE PLATFORM IS NOT INTENDED AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL ADVICE FROM A QUALIFIED HEALTH CARE PROFESSIONAL BECAUSE OF INFORMATION YOU MAY HAVE READ OR SEEN ON THE PLATFORM. DO NOT USE THE PLATFORM FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY. YOUR USE OF INFORMATION PROVIDED ON THE PLATFORM IS SOLELY AT YOUR OWN RISK. NOTHING STATED OR POSTED ON THE SITE OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR THE PROVISION OF MEDICAL CARE.
VII. NO DOCTOR-PATIENT RELATIONSHIP
A. NO LICENSED MEDICAL PROFESSIONAL/PATIENT RELATIONSHIP IS NECESSARILY CREATED BY USING INFORMATION PROVIDED BY OR THROUGH THE USE OF THE PLATFORM OR THROUGH ANY OTHER COMMUNICATIONS FROM COMPANY, INCLUDING, BUT NOT LIMITED TO, THE SCHEDULING OF AN APPOINTMENT WITH A PROVIDER AND/OR MEDICAL/HEALTHCARE RELATED MATERIALS ON THE PLATFORM, LINKS TO OTHER SITES OR ANY INFORMATION OR ASSISTANCE PROVIDED ON OR THROUGH THE PLATFORM TO HELP YOU SCHEDULE AN APPOINTMENT WITH A MEDICAL PROFESSIONAL OR SPECIALIST IN ANY FIELD. EMERGING TRENDS IN THE HEALTHCARE INDUSTRY MAY PERMIT DOCTORS AND PATIENTS TO FORM A DOCTOR-PATIENT RELATIONSHIP THROUGH THEIR
CONDUCT ON THE PLATFORM, INDEPENDENT OF ANY KNOWLEDGE, ACTION, OR CONSENT OF THE COMPANY. ANY SUCH RELATIONSHIP WILL BE BY THE CHOICE AND CONDUCT OF THE PROVIDER AND PROSPECTIVE PATIENT, AND COMPANY IS NOT RESPONSIBLE FOR THE OUTCOMES OF THAT POTENTIAL RELATIONSHIP. COMPANY INTENDS AND EXPECTS, AND USERS OF THE PLATFORM AGREE, THAT IN-OFFICE CONSULTATIONS WILL FOLLOW THE USE OF THE PLATFORM TO ESTABLISH A DOCTOR-PATIENT RELATIONSHIP AND DETERMINE WHETHER A COURSE OF CARE IS APPROPRIATE.
B. COMPANY MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROFESSIONAL QUALIFICATIONS, EXPERTISE, QUALITY OF WORK OR OTHER INFORMATION HEREIN. IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE ON SUCH INFORMATION. COMPANY WILL NOT BE LIABLE FOR THE ACTIONS OR INACTIONS OF ANY MEDICAL PROFESSIONAL OR SPECIALIST, WHETHER LISTED ON THIS SITE OR NOT.
VIII. INTELLECTUAL PROPERTY NOTICES
The Platform is protected by copyrights or are subject to other proprietary rights. This means that anyone using the Permitted is not permitted to use the content thereof in any manner, except as expressly permitted by Company in these Terms of Service
IX. MODIFICATION OF THESE TERMS OF SERVICE
Company may update or change the terms, conditions, and notices for the Website services from time to time in order to reflect changes in the services, changes in the law, or for other reasons as deemed necessary by Company, in its sole discretion. Your continued access to or use of the Website after any such change shall constitute your consent to such change. Unless explicitly stated otherwise, any new features that change or improve the Website shall be subject to these Terms of Service, as modified from time to time.
X. INTERNET SECURITY DISCLAIMER
Customer consents to the collection, storage, use, and disclosure of Customer Data as contemplated hereunder, which will involve transmission over the Internet and over various networks, only part of which may be owned or operated by a third-party licensor of the Company. Customer acknowledges and understands that Customer Data may be accessed by unauthorized persons when communicated across the internet, network communications facilities, or other electronic means. Company is not responsible for any Customer Data that is delayed, lost, destroyed, altered, intercepted or stored during the transmission of such data across network infrastructure not owned or operated by Company, including the internet. Customer agrees that Company is not in any way responsible for any interference with Customer’s or Users’ use of or access to the Platform or security breaches arising from or attributable to such network
infrastructure and, to the fullest extent permitted by law, Customer waives any and all claims against Company in connection therewith.
XI. USE OF PERSONAL INFORMATION
A. Company and its Third-Party Service Providers may use or disclose the personal information we collect for one or more of the following business purposes:
1) To fulfill or meet the reason for which the information is provided.
2) To provide you with information, products, or services that you request from us.
3) To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collections.
4) As necessary or appropriate to protect the rights, property or safety of us, our clients or others.
5) To respond to law enforcement requests and as required by applicable law, court order, or governmental regulations.
B. You acknowledge and agree that Company is a limited licensee of Creyos and is using the Platform according to such limited license. We have no control over and are not liable for the collection of any information, be it Personal Information or otherwise, collected by Creyos. By using the Platform, you agree to the Creyos Terms and Conditions and the Creyos Privacy Policy.
C. We may disclose your personal information to a third party for business purposes. When we disclose personal information for a business purpose, we enter a contract that describes the purpose and requires the recipient to both keep that personal information confidential and not use it for any purpose except performing the contract. We may disclose your personal information for business purposes to Third-Party Service Providers.
XII. REPRESENTATIONS AND WARRANTIES
A. Customer represents and warrants to, and covenants with Company that the Customer Data will contain no Personal Information other than Personal Information in respect of which Customer has provided and obtained all Required Disclosures and Consents.
B. Each party represents and warrants to the other party that: (a) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under these Terms of Service;
(b)use of the Services constitutes the legal, valid, and binding obligation of each party, enforceable against such party in accordance with its terms.
XIII. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION VIII, THE PLATFORM AND ANY OTHER SERVICES AND/OR MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD- PARTY MATERIALS. ADDITIONALLY, ALL THIRD-PARTY SERVICE PROVIDER MATERIALS AND SERVICES ARE ENABLED OR PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICE PROVIDER MATERIALS OR THIRD-PARTY SERVICE PROVIDER SERVICES IS STRICTLY BETWEEN CUSTOMER AND THIRD-PARTY SERVICE PROVIDER. COMPANY ALSO EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD-PARTY USER, ADVERTISER OR SPONSOR OF THE PLATFORM. UNDER NO CIRCUMSTANCES SHALL THE COMPANY ITS PHYSICIANS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, BE LIABLE FOR ANY INJURY, LOSS, DAMAGE (INCLUDING DIRECT, SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES), OR EXPENSE ARISING IN ANY MANNER WHATSOEVER FROM (I) THE ACTS, OMISSIONS OR CONDUCT OF ANY THIRD- PARTY, AND (II) ANY ACCESS, USE, RELIANCE UPON OR INABILITY TO USE ANY PLATFORM. YOU ACKNOWLEDGE AND AGREE THAT YOUR ACCESS AND USE OF THE PLATFORM AND THE CONTENT IS ENTIRELY AT YOUR OWN RISK AND LIABILITY.
XIV. LIMITATIONS OF LIABILITY
A. IN NO EVENT SHALL THE OWNER, ITS PHYSICIANS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, ANY LOSS OR DAMAGES IN THE NATURE OF, OR RELATING TO,
LOST BUSINESS, MEDICAL INJURY, PERSONAL INJURY, WRONGFUL DEATH, IMPROPER DIAGNOSIS, INACCURATE INFORMATION, IMPROPER TREATMENT OR ANY OTHER LOSS INCURRED IN CONNECTION WITH YOUR USE, MISUSE OR RELIANCE UPON THE PLATFORM REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE. COMPANY SHALL NOT BE LIABLE OR RESPONSIBLE IN ANY MANNER FOR THE THIRD- PARTY SERVICES INTEGRATED WITH OR OTHERWISE UTILIZED WITHIN THE PLATFORM. COMPANY IS NOT RESPONSIBLE FOR, AND CANNOT GUARANTEE THE ACCURACY OR BENEFITS OF, THIRD-PARTY COMMUNICATIONS, APPLICATION QUESTIONS, ASSESSMENTS, MEDICAL DIAGNOSIS, MEDICAL TREATMENTS, MEDICAL ADVICE, ETC. AND SHALL NOT BE HELD RESPONSIBLE FOR ANY FAILURE OF THE PLATFORM TO SEND OR TRANSMIT ANY COMMUNICATION BETWEEN YOU AND A POTENTIAL THIRD-PARTY PROVIDER. WE DO NOT GUARANTEE THAT A THIRD-PARTY PROVIDER WILL CONSIDER YOUR INFORMATION OR REQUEST FOR SERVICES AND AS SUCH, COMPANY IS NOT LIABLE FOR A THIRD-PARTY PROVIDER’S FAILURE OR DECISION TO DO SO. YOU UNDERSTAND AND AGREE THAT WE DO NOT PROVIDE ANY PROTECTION FOR ANY INFORMATION, DOCUMENTS, DATA, MEDICAL RECORDS, ETC. YOU SHARE WITH POTENTIAL THIRD-PARTY SERVICE PROVIDERS USING THE PLATFORM.
B. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF COMPANY AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
C. YOU AGREE THAT NO CLAIM AGAINST COMPANY OF ANY KIND UNDER ANY CIRCUMSTANCES WILL BE FILED MORE THAN ONE YEAR AFTER CUSTOMER, KNOWS OF, OR IN THE EXERCISE OF REASONABLE CARE COULD KNOW OF, SUCH CLAIM OR AN ACT OR OMISSION OF COMPANY THAT WOULD GIVE RISE TO SUCH CLAIM.
XV. INDEMNITY
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY AND ITS PHYSICIANS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, COSTS, OR EXPENSES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LEGAL FEES AND DISBURSEMENTS,
RESULTING DIRECTLY OR INDIRECTLY FROM (I) YOUR BREACH OF ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, (II) YOUR ACCESS TO, USE, MISUSE, RELIANCE UPON OR INABILITY TO ACCESS OR USE THE PLATFORM, THE CONTENT OR ANY PLATFORM TO WHICH THE PLATFORM IS OR MAY BE LINKED TO FROM TIME TO TIME OR, (III) YOUR USE OF, RELIANCE ON, PUBLICATION, COMMUNICATION, DISTRIBUTION, UPLOADING OR DOWNLOADING OF ANYTHING (INCLUDING ANY CONTENT) ON OR FROM THE PLATFORM.
XVI. MANDATORY BINDING ARBITRATION
ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE PARTIES’ RELATIONSHIP WITH EACH OTHER, AND/OR YOUR USE OF THE PLATFORM SHALL BE SUBMITTED TO AND RESOLVED EXCLUSIVELY BY BINDING ARBITRATION. BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS CONSUMER ARBITRATION RULES. THE AAA RULES WILL GOVERN PAYMENT OF ALL ARBITRATION FEES.
XVII. WAIVER
Any consent by the Company to, or waiver of, a breach of these Terms of Service which you have committed, whether express or implied, shall not constitute a consent to, or waiver of any other, different or subsequent breach.
XVIII. SEVERABILITY
The invalidity or unenforceability of any provision of these Terms of Service or any covenant contained herein shall not affect the validity or enforceability of any other provision or covenant contained herein and any such invalid provision or covenant shall be deemed severable from the rest of these Terms of Service.
XIX. HEADINGS
The headings contained in these Terms of Service are for convenience of reference only and shall not constitute a part hereof or define, limit or otherwise affect the meaning of any of the terms or provisions hereof.
XX. APPLICABLE LAW
These Terms of Service shall be governed by and construed solely and exclusively in accordance with the laws of the state of North Carolina without regard to any statutory or common-law provision pertaining to conflicts of laws.
XXI. SURVIVAL
The representations, obligations and covenants set forth in Section IV through Section XXI shall survive the termination of this Agreement.