You deserve transparency into our data use

Welcome to BrainCheck. BrainCheck provides a SaaS-based platform for conducting certain cognitive assessments, care planning and other related remote processing services (as modified, the “BrainCheck Platform”) through its website located at mybraincheck.com or mybraincheck.com/xxxx (as customized for a specific Healthcare Provider (as defined below)) (collectively, the “Test Site”) or its website for Healthcare Providers located at my.braincheck.com (the “Provider Test Site”) or its mobile app (the “BrainCheck App”) to measure and track information about cognitive health (as modified, collectively, the “Cognitive Testing Services”). The Cognitive Testing Services include various cognitive tests that provide different degrees of cognitive assessment (collectively, the “Cognitive Tests”) for our customer’s patients and individual consumers (collectively, “Test Takers” or “you”). The Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform and the BrainCheck App, together with the services and other features, functions, software and applications and third-party websites in connection with the Cognitive Tests and the other Cognitive Testing Services (collectively the “BrainCheck Services”) are provided and operated, and are being made available to you and the other Test Takers, and the other users of any of the BrainCheck Services (collectively, “Users”) by BrainCheck, Inc. (“BrainCheck”, “us” or “we”). All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Use.

Some Test Takers may be under the care and supervision of their doctors and other healthcare providers (collectively, the “Healthcare Providers”) when they access the Cognitive Tests through the Provider Test Site or the BrainCheck App. Other Test Takers may access the Cognitive Tests on their own or as directed by their Healthcare Provider through the Testing Site.

In either case, only Healthcare Providers should evaluate the results and other data from the Cognitive Tests and the other Cognitive Testing Services (collectively, the “Test Results”) and prescribe appropriate next steps for management of a Test Taker’s cognitive health.

TEST TAKERS THAT THAT ACCESS THE COGNITIVE TESTS ON THEIR OWN, OR AS DIRECTED BY THEIR HEALTHCARE PROVIDER, THROUGH THE TESTING SITE ACKNOWLEDGE AND AGREE THAT THEY HAVE AND WILL RETAIN SOLE RESPONSIBILITY FOR ALL TEST RESULTS, INCLUDING THEIR USE.

IF YOU ARE NOT ALREADY WORKING WITH A HEALTHCARE PROVIDER, BRAINCHECK STRONGLY URGES YOU TO TAKE THE TEST RESULTS  FROM ANY COGNITIVE TEST THAT YOU TAKE TO A QUALIFIED HEALTHCARE PROVIDER, ESPECIALLY IF ARE AT ALL CONCERNED OR HAVE QUESTIONS.

IMPORTANT! THESE TERMS OF USE (“TERMS”) GOVERN YOUR USE OF THE COGNITIVE TESTS  AND THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK APP AND THE OTHER BRAINCHECK SERVICES. BY CLICKING “I AGREE”, USING, OR ACCESSING THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THESE TERMS, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THESE TERMS OF USE FOR AND ON BEHALF OF YOURSELF, AND ARE DOING SO, (B) YOU CAN LEGALLY ENTER INTO THESE TERMS AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU SHALL BE BOUND BY THESE TERMS OF USE AND BRAINCHECK’S PRIVACY POLICY (HTTPS://BRAINCHECK.COM/PRIVACY-POLICY-TEST-TAKERS/) (THE “PRIVACY POLICY”) AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE TO THESE TERMS OF USE OR THE PRIVACY POLICY, PLEASE DO NOT USE THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES.

THESE TERMS AND THE PRIVACY POLICY DO NOT APPLY TO YOUR ACCESS AND USE OF BRAINCHECK’S WEBSITE AT BRAINCHECK.COM (THE “HOME WEBSITE”). YOUR ACCESS AND USE OF THE HOME WEBSITE ARE GOVERNED BY THE TERMS OF USE FOR THE HOME WEBSITE AVAILABLE AT HTTPS://BRAINCHECK.COM/TERMS-OF-USE/ AND THE PRIVACY POLICY FOR THE HOME WEBSITE AVAILABLE AT HTTPS://BRAINCHECK.COM/PRIVACY-POLICY/.

These Terms contain an Arbitration provision which will, with limited exception, require you to submit disputes you have against BrainCheck to binding and final arbitration. You will only be permitted to pursue claims against BrainCheck on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

IF YOU ARE IN NEED OF IMMEDIATE MEDICAL ATTENTION OR IF YOU HAVE A MEDICAL EMERGENCY, YOU SHOULD CALL 911 OR CONSULT WITH A MEDICAL PROFESSIONAL IMMEDIATELY.

1. Eligibility.

BY CLICKING THE “I AGREE” BUTTON, BY ACCESSING OR USING THE COGNITIVE TESTS OR ANY OF THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES, YOU REPRESENT THAT: 

• YOU CONFIRM THAT YOU ARE AT LEAST 18 YEARS OLD AND OF LEGAL AGE TO FORM A BINDING CONTRACT WITH BRAINCHECK;
• YOU WILL COMPLY WITH THESE TERMS AND ALL APPLICABLE LOCAL, STATE AND NATIONAL, RULES AND REGULATIONS;
• YOU HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE COGNITIVE TESTS OR ANY OF THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES; AND
• YOU ARE NOT A COMPETITOR OF BRAINCHECK AND DO NOT INTEND TO USE THE COGNITIVE TESTS OR ANY OF THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES FOR REASONS THAT ARE IN COMPETITION WITH BRAINCHECK OR OTHERWISE TO REPLICATE SOME OR ALL OF THE OTHER BRAINCHECK SERVICES FOR ANY REASON.

2. Privacy.

Your privacy is important to BrainCheck. Our goal is to make the Cognitive Tests and the other Cognitive Testing Services, the BrainCheck Platform, the BrainCheck App and the other BrainCheck Services as good, useful and rewarding for you as possible. In order to do that, BrainCheck may collect and process information from you when you use the Cognitive Testing Services, the BrainCheck Platform,  the BrainCheck App  or any of the other BrainCheck Services. BrainCheck will collect certain personally identifiable information from you as set forth in more detail in our Privacy Policy. By accessing or using the Cognitive Tests or any of the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services, you agree that BrainCheck may collect, use and disclose, as set forth in the Privacy Policy, the information you provide when you access and use the Cognitive Tests or any of the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or  any of the other BrainCheck Services, and in some cases, information that is provided by or through any of the BrainCheck Services. 

Notwithstanding the foregoing, BrainCheck shall comply with all applicable state and federal laws and regulations including the privacy and confidentiality of patient records including but not limited to (i) The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”); (ii) the Privacy and Security Standards (45 C.F.R. Parts 160 and 164) and the Standards for Electronic Transactions (45 C.F.R Parts 160 and 162) (collectively, the “Standards”) promulgated or as to be promulgated by the Secretary of Health and Human Services on and after the applicable effective dates specified in the Standards; and (iii) The Health Information Technology Economic and Clinical Health Act of 2009 (the “HITECH Act” and together with HIPAA and the Standards, collectively, the “Privacy and Security Laws”). BrainCheck shall comply with all bylaws, rules, regulations, and policies of the applicable Healthcare Providers regarding the confidentiality and privacy of Protected Health Information, as defined in 45 C.F.R. 164.501, and Individually Identifiable Health Information (as defined in 42 U.S.C.§130d(6)) (collectively, “PHI”).

If BrainCheck ever creates, receives, maintains, or transmits any PHI, in connection with the Cognitive Tests or any of the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform or the BrainCheck App, then BrainCheck shall (i) enter into a Business Associate Agreement (or its equivalent) (a “BAA”) with the applicable Healthcare Providers or Cognitive Health Service Providers (as defined in the Privacy Policy), in form and substance reasonably acceptable to the parties and (ii) comply with (A) the terms of the BAA and (B) all applicable healthcare related laws, including the Privacy and Security Laws.

To the extent that BrainCheck accesses any PHI, BrainCheck agrees that it will not disclose to any third party, except where required or permitted by law and the applicable BAA, any PHI, medical record or other patient information regarding any Test Taker, and in such case, disclosures shall be made in accordance with the applicable policies of the parties, the applicable BAA and the applicable Privacy and Security Laws. All medical information and data concerning specific Test Takers, including but not limited to PHI and the identification of Test Takers, derived from the access and use of the  Cognitive Tests or the other Cognitive Testing Services, shall be treated and maintained in a secure and confidential manner.

3. The Cognitive Tests.

3.1       Accessing and Using the Cognitive Tests.  

(a)        Test Takers Accessing the Cognitive Tests under the Care of a Healthcare Provider. One way to access and use the Cognitive Tests, is for your Healthcare Provider to provide you access to the Cognitive Tests through the Provider Test Site or the BrainCheck App. You do not need to register or create an account, but you must agree to these Terms and the Privacy Policy.

(b)        Test Takers Accessing the Cognitive Tests through the Test Site.

(i)         You may also access a Cognitive Test on your own or at the direction of your Healthcare Provider through the Test Site. You do not need to register or create an account, or agree to these Terms or the Privacy Policy, before taking the Cognitive Test.

(ii)        The Cognitive Test that you access through the Test Site is referred to as “Screen” and is a simpler and shorter test intended only to establish a baseline as the first step in understanding your cognitive status and offering an essential reference point for your  Healthcare Providers.

(iii)       Before you can get the Test Results from Screen, you must agree to these Terms and the Privacy Policy and then you are required to provide certain personal information about yourself.

3.2       Not Medical Advice. BRAINCHECK PROVIDES THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES TO MEASURE AND TRACK INFORMATION ABOUT COGNITIVE HEALTH. ANY CLINICAL APPLICATION OF THE TEST RESULTS AND THE OTHER DATA AND INFORMATION OBTAINED BY USE OF THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES IS THE SOLE RESPONSIBILITY OF YOUR HEALTHCARE PROVIDER. THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES AND THE OTHER BRAINCHECK SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS MEDICAL ADVICE OR OPINION. BRAINCHECK DOES NOT PROVIDE MEDICAL SERVICES OR RENDER MEDICAL ADVICE. NOTHING CONTAINED IN THE COGNITIVE TESTS OR THE OTHER COGNITIVE TESTING SERVICES OR OTHER BRAINCHECK SERVICES IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. You should always discuss any questions or concerns that you might have about your health or medical condition with your doctor or other Healthcare Provider.

3.3       Independent Service Providers. Healthcare Providers are independent service providers chosen by Test Takers. BrainCheck does not endorse any Healthcare Provider and does not verify the suitability, skills, ability, degrees, qualifications, credentials, experience or background of any Healthcare Provider. BrainCheck assumes no responsibility for any advice, information, diagnosis or services provided by or any act or omission of Healthcare Providers. BrainCheck exercises no control over the nature, quality, safety or legality of any Test Taker dealings with Healthcare Providers nor is BrainCheck a party to, involved in or responsible for any transactions Test Takers may enter into with their Healthcare Providers. We give no guarantees and make no representations or warranties in relation to any of these aspects whether express or implied.

4. Fees.

4.1       Fees. BrainCheck does not currently charge any fees to Test Takers to access and use the Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform or the BrainCheck App.

4.2       Changes in Fees. BrainCheck reserves the right at any time to begin charging for services that it is currently providing free of charge upon posting on the Test Site, the Provider Test Site, the Home Website or any of the other BrainCheck Services or by notifying you by email. Any such charges shall be in effect thirty (30) days after posting or notification or as otherwise specified by BrainCheck.

5. Right to Access and Use; Unauthorized Use.

5.1        Right to Access and Use. Subject to your compliance with all of the terms and conditions set out in these Terms, BrainCheck hereby grants to you a limited, non-exclusive, non-transferable, freely revocable right to access and use the  Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App, and the other BrainCheck Services, to the extent of, and in accordance with, these Terms.

5.2        License. Subject to your compliance with all of the terms and conditions set out in these Terms, BrainCheck hereby grants to you a limited, non-exclusive, non-transferable, freely revocable limited license to download, install and use the BrainCheck App on your internet-connected devices (the “License”).

5.3       Prevention of Unauthorized Use. BrainCheck reserves the right to exercise whatever lawful means it deems necessary to prevent the unauthorized access or use of the  Cognitive Tests and the other Cognitive Testing Services, the BrainCheck Platform, the BrainCheck App or the circumvention of the other BrainCheck Services, including, but not limited to, technological barriers and IP mapping.

6. Additional Policies.

When accessing or using the  Cognitive Tests or the other Cognitive Testing Services, the Site, the BrainCheck Platform, the BrainCheck App, or any of the other BrainCheck Services, you may be subject to any additional posted policies, guidelines or rules applicable to the Cognitive Tests and the other Cognitive Testing Services and the other BrainCheck Services which may be posted from time to time (as modified from time to time, the “Policies”). All such Policies are hereby incorporated by reference into these Terms.

7. Respecting other People’s Rights.

BrainCheck respects the rights of others and so should you. You therefore shall not:

• violate or infringe someone else’s rights of publicity, privacy, copyright, trademark, or other intellectual property right;
• post anything that is false, misleading, untruthful or inaccurate or that includes anyone’s personal information; or
• impersonate any person or entity, including any of BrainCheck’s employees or representatives or any other Test Taker or User.

8. Modification of these Terms.

BrainCheck reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Test Site, the Provider Test Site, the Home Website or any of the other BrainCheck Services. If BrainCheck updates these Terms, it will update the “last updated” date at the top of the Terms.  Please check these Terms, including any Policies, periodically for changes. Your continued use of the Cognitive Tests or any of the other Cognitive Testing Services or any of the other BrainCheck Services after the posting of changes constitutes your binding acceptance of such changes. In the event of a change to these Terms that materially modifies your rights or obligations (including applicable fees), BrainCheck will use commercially reasonable efforts to notify you of such change. BrainCheck may provide notice through a pop-up or banner on the Test Site, the Provider Test Site, the Home Website or within any of the other BrainCheck Services, by sending an email to any address you may have provided  for your account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, BrainCheck may require you to provide consent by accepting the changed Terms. IF BRAINCHECK REQUIRES YOUR ACCEPTANCE OF THE CHANGED TERMS, CHANGES ARE EFFECTIVE ONLY AFTER YOUR ACCEPTANCE. FOR ALL OTHER CHANGES, EXCEPT AS STATED ELSEWHERE BY BRAINCHECK, SUCH AMENDED TERMS OR FEES WILL AUTOMATICALLY BE EFFECTIVE, REPLACING THE PREVIOUSLY-EFFECTIVE TERMS OR FEES, THIRTY (30) DAYS AFTER THEY ARE INITIALLY POSTED ON ANY OF THE BRAINCHECK SERVICES.  IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES AND ALL OTHER BRAINCHECK SERVICES.

To the extent that any modifications to the Terms or Policies are not allowed under applicable laws, the prior most recent version of the Terms or Policies shall continue to apply.

9. Test Results.

(a)        Security Obligations. BrainCheck will employ commercially reasonable security measures to protect any information and data, including all any PHI and Test Results that are collected, downloaded or otherwise received, directly or indirectly from a Healthcare Provider or a Test Taker in connection with the use of the Cognitive Tests and the other Cognitive Testing Services in accordance with commercially reasonable standards and all applicable laws.

(b)        Test Results are “As Is”. In providing the Cognitive Tests and the other Cognitive Testing Services and the other BrainCheck Services, BrainCheck makes the Test Results available “as is” and does not undertake any monitoring, vetting, testing or screening over the quality, suitability or accuracy of the Test Results. BrainCheck does not purport to provide a complete record about a Test Taker. A Healthcare Provider should always independently verify, amend or update the Test Results as necessary in accordance with good healthcare practices.

(c)        Healthcare Provider Control and Responsibility. If your Healthcare Provider has provided you access to the Cognitive Tests or the other Cognitive Testing Services, then your  Healthcare Provider has and will retain sole responsibility for: (i) all Test Results, including their use; (ii) all information, instructions and materials provided by or on behalf of Healthcare Provider in connection with the  Cognitive Tests and the other Cognitive Testing Services; and (iii) all access to and use of the Cognitive Tests and the other Cognitive Testing Services, with or without Healthcare Provider’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.

 (d)        Access to the Cognitive Tests through the Test Site. If you accessed the Cognitive Tests through the Test Site on your own or as directed by your Healthcare Provider, then you acknowledge and agree that you have and will retain sole responsibility for all Test Results, including their use. YOU UNDERSTAND THAT EVALUATING AND UNDERSTANDING THE TEST RESULTS IS COMPLICATED AND ONLY A QUALIFIED HEALTHCARE PROVIDER SHOULD PRESCRIBE APPROPRIATE NEXT STEPS FOR MANAGEMENT OF YOUR COGNITIVE HEALTH. BRAINCHECK STRONGLY URGES YOU TO TAKE THE TEST RESULTS TO A QUALIFIED HEALTHCARE PROVIDER.

(e)        Use of Test Results. You hereby grant BrainCheck a perpetual, irrevocable, non-exclusive, fully paid-up, worldwide, non-transferrable (except as provided in Section 18.6), sub-licensable, and royalty-free license (i) to use the Test Results (and any copyrights, publicity, database and other proprietary rights therein) (A) to provide the Cognitive Tests and the other Cognitive Testing Services and (B) to develop and improve BrainCheck’s products and services and its business and for other development, diagnostic and corrective purposes in connection with the BrainCheck Services and (ii) to use aggregated and anonymized Test Results and other personal data and information about cognitive health that is collected or processed by the Cognitive Tests or any of the other Cognitive Testing Services (“Aggregated Data”): (A) to create new services and technologies, and (B) to use, share, disclose and sell Aggregated Data for any lawful purpose without restriction so long as it does not (1) violate theses Terms,  the Privacy Policy or any applicable Privacy and Security Laws and (2) disclose any specific identifiable individual information about you or any other Test Taker.  

10. Prohibited Conduct.

BY ACCESSING OR USING THE COGNITIVE TESTS OR ANY OF THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES YOU AGREE NOT TO:

10.1     Decipher, decompile, disassemble, reverse engineer, modify, translate, or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the  Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);

10.2     Access or use the  Cognitive Tests or any of the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services for the benefit of anyone other than yourself except in accordance with these Terms, including selling, reselling or distributing, in whole or in part, the Cognitive Tests or the other Cognitive Testing Services or using the  Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App as part of a service bureau or outsourcing offering;

10.3     Provide any services, directly or indirectly, that are similar to, or based on, the Cognitive Tests or the other Cognitive Testing Services or any of the other BrainCheck Services;  

10.4     Copy, disclose, or distribute any data or other information available through the  Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services and/or information, in any medium, by any automated or non-automated “scraping;”

10.5     Interfere with, circumvent or disable any security or other technological features or measures of any of the BrainCheck Services or attempt to gain unauthorized access to any of the BrainCheck Services or its related systems or networks;

10.6     Use bots or other automated methods to: access the  Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App and/or any of the other BrainCheck Services, download any information, send or redirect messages or perform any other activities through any of the BrainCheck Services;

10.7     Take any action that BrainCheck determines, in its sole discretion, imposes or may impose, an unreasonable or disproportionately large load on its infrastructure;

10.8     Upload invalid data, viruses, worms or other software agents through the  Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App and/or any of the other BrainCheck Services;

10.9   Collect or derive any personally identifiable information, including names, email addresses from any of the BrainCheck Services except as may be expressly contemplated by these Terms and the Privacy Policy;

10.10    Impersonate any person or entity, use a fictitious name, or misrepresent your affiliation with a person or entity;

10.11   Use the  Cognitive Tests or any of the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services for any unlawful or inappropriate activities, such as transmission of deceptive messages, or harassment; or

10.12   Use the BrainCheck Services for any commercial solicitation purposes.

11. Mobile and Data Services.

You are responsible for any mobile and data charges that you may incur for accessing and using the  Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services. If you’re unsure what those charges may be, you should ask your service provider before using any of the BrainCheck Services. 

12. Termination; Terms of Use Violations.

12.1     BrainCheck. You agree that BrainCheck in its sole discretion, for any or no reason, and without penalty, may terminate your access and use of the  Cognitive Tests or any of the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services, the License or your account and remove and discard all or any part of your account, user profile, at any time. BrainCheck may also in its sole discretion and at any time prohibit you from accessing and using the  Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform or BrainCheck App or discontinue providing access to the Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform or the BrainCheck App,  or any of the other BrainCheck Services, or any part thereof, with or without notice. You agree that any termination of your ability to access or use Cognitive Tests or the other Cognitive Testing Services, or any of the other BrainCheck Services or any account you may have may be effected without prior notice, and you agree that BrainCheck will not be liable to you or any third party for any such termination. BrainCheck reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing BrainCheck to disclose the identity of anyone that is believed to violate these Terms.  Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies that BrainCheck may have at law or in equity. As provided herein, BrainCheck does not permit copyright infringing activities on any of the BrainCheck Services, and BrainCheck shall be permitted to terminate access to the Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services or the License. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD BRAINCHECK HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY BRAINCHECK DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER BRAINCHECK OR LAW ENFORCEMENT AUTHORITIES.

12.2     You. Your only remedy with respect to any dissatisfaction with (i) the Cognitive Tests or any of the other Cognitive Testing Services, the Test Site,  the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services, (ii) any term of these Terms or (iii) any policy or practice of BrainCheck in providing the Cognitive Tests or any of the other Cognitive Testing Services, or operating the Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or the other BrainCheck Services is to terminate your use of the Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App and any of the other BrainCheck Services. You may terminate your use of the Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App and the other BrainCheck Services at any time. Upon any such termination, the License to use the BrainCheck App shall automatically terminate.

13. Ownership; Feedback.

BrainCheck shall own all right, title and interest in the Cognitive Tests and the other Cognitive Testing Services, the Test Site,  the Provider Test Site, the BrainCheck Platform, the BrainCheck App and the other BrainCheck Services. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the BrainCheck Services provided by BrainCheck (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services are the property of BrainCheck or its subsidiaries or affiliated companies, and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to BrainCheck or its affiliates and/or third-party licensors. Except as expressly authorized by BrainCheck, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. BrainCheck reserves all rights not expressly granted in these Terms.

If you provide any comments, suggestions, feedback, improvement requests or other recommendations relating to the Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App,  or any of the other BrainCheck Services (“Feedback”), You grant to BrainCheck a perpetual, irrevocable, non-exclusive, fully paid-up, worldwide, non-transferrable (except as provided in Section 18.6), sub-licensable, and royalty-free license to use, publish, edit, translate, distribute, display and incorporate without restriction. You should not submit any Feedback to us that you do not wish to license to us as stated above. We have no obligation (a) to maintain any Feedback in confidence; (b) to pay any compensation for any Feedback; or (c) to respond to any Feedback. You also grant us the right to use the name that you submit in connection with any Feedback.

14. Indemnification.

You agree to indemnify, save, and hold BrainCheck its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any third-party claims, losses, damages, or liabilities, including legal fees and expenses, arising out of your use or misuse of the Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App  or any of the other BrainCheck Services, any Test Results, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. BrainCheck reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify BrainCheck and you agree to cooperate with BrainCheck’s defense of these claims. BrainCheck will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

15. No Warranties; Disclaimers.

15.1     NO WARRANTIES. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BRAINCHECK AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, RESELLERS, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “BRAINCHECK PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP, THE OTHER BRAINCHECK SERVICES AND THE TEST RESULTS, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, BRAINCHECK PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR THE OTHER BRAINCHECK SERVICES OR THE TEST RESULTS, WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE BRAINCHECK PARTIES OR THROUGH THE COGNITIVE TESTS OR THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR THE OTHER BRAINCHECK SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. 

15.2     “As Is” and “As AVAILABLE” AND “WITH ALL FAULTS”. YOU EXPRESSLY AGREE THAT THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE,  THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES, THE TEST RESULTS, ANY OTHER DATA AND INFORMATION, THIRD-PARTY SOFTWARE, CONTENT, THIRD-PARTY SITES, ADVERTISEMENTS, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE COGNITIVE TESTS OR THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.

15.3     Operations and Content. THE BRAINCHECK PARTIES DO NOT WARRANT THAT THE TEST RESULTS, ANY OTHER DATA OR INFORMATION, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE COGNITIVE TESTS OR THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM OR THE BRAINCHECK APP,  OR ANY OF THE OTHER BRAINCHECK SERVICES, OR ANY THIRD-PARTY SITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

15.4     Accuracy. EXCEPT AS SPECIFICALLY PROVIDED IN WRITING BY BRAINCHECK, THE BRAINCHECK PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP AND THE OTHER BRAINCHECK SERVICES OR THE TEST RESULTS OR ANY THIRD-PARTY SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. 

15.5     Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN THE TEST RESULTS, CONTENT, INFORMATION, MATERIALS, RESULTS OR DATA THROUGH THE COGNITIVE TESTS OR ANY OF THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES OR ANY THIRD-PARTY SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER AND OTHER DEVICES) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

16. LIMITATION OF LIABILITY AND DAMAGES.

16.1      Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, NEGLIGENCE, WILL THE BRAINCHECK PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE COGNITIVE TESTS OR THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES, OR ANY TEST RESULTS OR ANY THIRD-PARTY SITE, EVEN IF BRAINCHECK OR A BRAINCHECK AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, BRAINCHECK’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

16.2     Limitation of Damages. IN NO EVENT WILL THE BRAINCHECK PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO YOUR ACCESS AND USE OF THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES, OR ANY TEST RESULTS OR THESE TERMS, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE GREATER OF (A) $50.00 AND (B) AN AMOUNT EQUAL TO THE FEES PAID BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.

16.3     Release for Disputes between Users. If you have a dispute with any other Users (including any Healthcare Providers) or other third parties, you hereby release BrainCheck and the other BrainCheck Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. You hereby waive California Civil Code Section 1542 and any similar law of any state or territory of the United States, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

16.4     Third-party Site. THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SITE OR OTHERWISE BY THIRD PARTIES OTHER THAN BRAINCHECK AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE BRAINCHECK SERVICES OR RECEIVED THROUGH ANY THIRD-PARTY SITE.

16.5     Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT BRAINCHECK HAS OFFERED THE COGNITIVE TESTS AND THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK APP AND THE OTHER BRAINCHECK SERVICES, AND THE TEST RESULTS, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND BRAINCHECK, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND BRAINCHECK. BRAINCHECK WOULD NOT BE ABLE TO PROVIDE THE COGNITIVE TESTS OR ANY OF THE OTHER COGNITIVE TESTING SERVICES, THE TEST SITE, THE PROVIDER TEST SITE, THE BRAINCHECK PLATFORM, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES, OR THE TEST RESULTS, TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

16.6     Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.

17. Export Controls.

You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or other BrainCheck Services or any underlying intellectual property, information or technology except with BrainCheck’s prior written consent and in full compliance with all United States, foreign and other applicable export control laws and regulations.

18. Miscellaneous.

18.1     Notice. BrainCheck may provide you with notices, including those regarding changes to these Terms, by email, regular mail or postings on any of the BrainCheck Services. Notice will be deemed given twenty-four hours after the email is sent, unless BrainCheck is notified that the email address is invalid. Alternatively, BrainCheck may give you legal notice by mail to a postal address, if provided by you through any of the BrainCheck Services. In such case, notice will be deemed given three (3) days after the date of mailing. Notices posted on any of the BrainCheck Services are deemed given thirty (30) days following the initial posting.

18.2     Waiver. The failure of BrainCheck to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by BrainCheck.

18.3     Dispute Resolution. If a dispute arises between you and BrainCheck, the goal is to provide you with a neutral and cost-effective method of resolving the dispute quickly. Accordingly, you and BrainCheck agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the Privacy Policy, the Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services, or the Test Results (a “Dispute”) will be resolved in accordance with this Section 18.3 or as BrainCheck and you otherwise agree in writing. Before resorting to these dispute methods, BrainCheck strongly encourages you to first contact BrainCheck directly to seek a resolution.

(a)        Choice of Law. These Terms shall be governed in all respects by the laws of the State of Texas, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR OTHERWISE IN CONNECTION WITH THESE TERMS OR ANY OF THE BRAINCHECK SERVICES.

(b)        Arbitration and Class Action Waiver.

PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.

(i)         ARBITRATION. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND BRAINCHECK (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS OR ANY OF THE BRAINCHECK SERVICES, INCLUDING WITHOUT LIMITATION YOUR RIGHTS OF PRIVACY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION AND YOU AND BRAINCHECK HEREBY EXPRESSLY WAIVE TRIAL BY JURY. ANY ARBITRATION SHALL BE IN ENGLISH AND THE PLACE OF ARBITRATION SHALL BE AUSTIN, TEXAS. YOUR ARBITRATION FEES AND YOUR SHARE OF ARBITRATOR COMPENSATION SHALL BE GOVERNED BY SUCH RULES. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND BRAINCHECK WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU MAY BRING DISPUTES ONLY ON YOUR OWN BEHALF.

Neither you nor BrainCheck will participate in a class action or class-wide arbitration for any disputes covered by these Terms to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST BRAINCHECK INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if BrainCheck is a party to the proceeding.

This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.

(ii)        Judicial Forum for Disputes. In the event that the agreement to arbitrate under Section 18.3(b) is found not to apply to you or your claim, you and BrainCheck agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts covering Travis County, TX. Both you and BrainCheck irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, BrainCheck may bring a claim for equitable relief in any court with proper jurisdiction.

(iii)       Survival. This arbitration agreement will survive the termination of your use of the Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services or your relationship with BrainCheck.

(c)        30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in this Section 18.3 above by sending written notice of your decision to opt-out to support@braincheck.com. The notice must be sent to BrainCheck within thirty (30) days of your use of any of the BrainCheck Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.

(d)       Improperly Filed Claims. All claims you bring against BrainCheck must be resolved in accordance with this Section 18.3. All claims filed or brought contrary to this Section 18.3 shall be considered improperly filed. Should you file a claim contrary to this Section 18.3, BrainCheck may recover attorneys’ fees and costs up to $15,000, provided that BrainCheck has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.

(e)        Prevailing Party.  In the event that either party institutes any legal suit, action or proceeding against the other party arising out of or relating to these Terms, the Privacy Policy, or any of the other BrainCheck Services, the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.

(f)        Limitation on Time to File Claims. ANY CAUSE OF ACTION OR DISPUTE YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS, THE PRIVACY POLICY, ANY OF THE BRAINCHECK SERVICES OR YOUR RELATIONSHIP WITH BRAINCHECK MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR DISPUTE IS PERMANENTLY BARRED.

18.4     Severability. If any provision of these Terms (including any Policies) is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.

18.5     Relationship of the Parties. The parties agree that nothing in these Terms shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the parties, or as authorizing either party to act as the agent of the other. You are and will remain an independent contractor in your relationship to BrainCheck. Nothing in these Terms shall create any obligation between either party and a third party. 

18.6     Assignment. These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by BrainCheck without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

18.7     Survival. Upon termination of these Terms, your use of the Cognitive Tests and the other Cognitive Testing Services, any of the other BrainCheck Services or your relationship with BrainCheck any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 2 and 9 – 18.

18.8     Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.

18.9     Entire Agreement. These Terms, together with the Privacy Policy and the Policies, are the entire agreement between you and BrainCheck relating to the subject matter herein and will not be modified except by a change to these Terms or Policies made by BrainCheck as set forth in Section 8 above.

18.10   No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.

18.11    Geographic Restrictions. BrainCheck is based in the state of Texas in the United States. BrainCheck makes no claims that accessing or using or that any of the BrainCheck Services or any of the content is accessible or appropriate outside of the United States. Accessing or using the Cognitive Tests or the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App or any of the other BrainCheck Services may not be legal by certain persons or in certain countries. If you access any of these BrainCheck Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against BrainCheck with respect thereto.

18.12    Electronic Communications. The communications between you and BrainCheck use electronic means, whether you visit the Cognitive Tests or the other Cognitive Testing Services or the other BrainCheck Services or send BrainCheck e-mails, or whether BrainCheck posts notices on the Test Site, the Provider Test Site, the Home Website or the other BrainCheck Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from BrainCheck in an electronic form; and (b) agree that all terms, conditions, agreements, notices, disclosures, and other communications that BrainCheck provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect your statutory rights.

18.13   Disclosures.

The Cognitive Tests and the other Cognitive Testing Services, the Test Site, the Provider Test Site, the BrainCheck Platform, the BrainCheck App and the other BrainCheck Services are offered by BrainCheck, Inc.,  3000 E Cesar Chavez Street, Suite 300, Austin TX, 78702 and email: support@braincheck.com.

If you are a California resident, you may have this same information emailed to you by sending a letter to BrainCheck, Inc., 3000 E Cesar Chavez Street, Suite 300, Austin TX, 78702 with your email address and a request for this information.

California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

© 2024 BrainCheck, Inc.