Terms of Use
Updated March 1, 2023
Welcome to BrainCheck. BrainCheck provides tests and assessments for cognitive health (as modified,
the “Cognitive Assessments”) for patients (collectively, “Patients” or “you”) through its website located
at braincheck.com (the “Site”) or its mobile app (the “BrainCheck App”). Patients are under the care and
supervision of their doctors and other healthcare providers (collectively, the “Healthcare Providers”)
who can evaluate the results and other data from the Cognitive Assessments (collectively, the
“Assessment Data”) and prescribe appropriate next steps for management of a Patient’s cognitive health.
The Cognitive Assessments, the Site and the BrainCheck App, together with the related services and
other features, functions, software, applications and websites (collectively the “BrainCheck Services”)
are provided and operated, and are being made available to you and the other Patients, 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.
IMPORTANT! THESE TERMS OF USE (“TERMS”) GOVERN YOUR USE OF THE
COGNITIVE ASSESSMENTS, THE SITE, THE BRAINCHECK APP AND THE OTHER
BRAINCHECK SERVICES. BY CLICKING “I AGREE”, USING, OR ACCESSING THE
COGNITIVE ASSESSMENTS, THE SITE, 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/) (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 ASSESSMENTS, THE SITE, THE
BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES.
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
ASSESSMENTS, THE SITE, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK
SERVICES, YOU REPRESENT THAT:
YOU CONFIRM THAT YOU ARE 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; AND
YOU HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE,
THE BRAINCHECK APPTHE COGNITIVE ASSESSMENTS OR ANY OF THE OTHER
BRAINCHECK SERVICES;
YOU ARE NOT A COMPETITOR OF BRAINCHECK AND DO NOT INTEND TO USE THE
COGNITIVE ASSESSMENTS, THE SITE, 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.
YOU UNDERTAND THAT IF YOU ARE UNDER 18, YOU MUST GET YOUR
PARENT OR GUARDIAN TO AGREE TO THESE TERMS AND CONDITIONS
AND OUR PRIVACY POLICY.
2. Privacy.
Your privacy is important to BrainCheck. Our goal is to make the Cognitive Assessments, the
Site, 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 Assessments, the Site, 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 Assessments, the Site, 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
Assessments, the Site , 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 Assessments, the Site or the BrainCheck App, then BrainCheck shall (i) enter into a Business
Associate Agreement (a “BAA”) with the applicable Healthcare Providers, in form and substance
reasonably acceptable to the parties and (ii) comply with (A) the terms of the Business Associate
Agreement 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 shall 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 Patient, 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 Patients, including but not limited to
PHI and the identification of Patients, derived from the access and use of the Cognitive Assessments shall
be treated and maintained in a secure and confidential manner.
3. The Cognitive Assessments.
3.1 Accessing and Using the Cognitive Assessments.
(a) Patients. To access and use the Cognitive Assessments, your Healthcare Provider
will send a request to BrainCheck to allow you to access and use the Cognitive Assessments as a
Patient. Upon the receipt of such a request, BrainCheck will create an account with the necessary
information provided by your Healthcare Provider. You do not need to register or create an
account, but you must agree to these Terms and the Privacy Policy.
(b) Once you are registered, you can access and use the Cognitive Assessments
either through a tablet or other internet-connected device provided by your Healthcare Provider or
through your own tablet or other internet-connected device using a link sent to you by
BrainCheck.
3.2 Not Medical Advice. BrainCheck provides the Cognitive Assessments BrainCheck to
measure and track information about cognitive health. CLINICAL APPLICATION OF THE
INFORMATION OBTAINED BY USE OF THE COGNITIVE ASSESSMENTS IS THE SOLE
RESPONSIBILITY OF YOUR HEALTHCARE PROVIDER. THE COGNITIVE ASSESSMENTS 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
COGNITIVE ASSESSMENTS 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 the Patient and are not affiliated with BrainCheck in any way, other than as users of the
Cognitive Assessments, the Site and the BrainCheck App. 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 Patient dealings with
Healthcare Providers nor is BrainCheck a party to, involved in or responsible for any transactions Patients
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 Patients to access and use the
Cognitive Assessments, the Site 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 Site, the BrainCheck App, 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.
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 Assessments, the Site, 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 Assessments,
the Site, 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 Assessments, the Site, 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 Assessments 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 Patient 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 Site 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 Assessments 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 within any of the 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 ALL 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. Patient Data.
(a) Security Obligations. BrainCheck will employ commercially reasonable security
measures to protect any information and data, including all any PHI and Assessment Data that is
collected, downloaded or otherwise received, directly or indirectly from a Healthcare Provider or a
Patient in connection with the use of the Assessment Data in accordance with commercially reasonable
standards and all applicable laws.
(b) Assessment Data is “As Is”. In providing the Cognitive Assessments and the other
BrainCheck Services, BrainCheck makes the Assessment Data available “as is” and does not undertake
any monitoring, vetting, testing or screening over the quality, suitability or accuracy of the Assessment
Data. BrainCheck does not purport to provide a complete record about a Patient. Healthcare Provider
must always independently verify, amend or update the Assessment Data as necessary in accordance with
good healthcare practices.
(c) Healthcare Provider Control and Responsibility. Healthcare Provider has and will retain
sole responsibility for: (i) all Assessment Data, including its use; (ii) all information, instructions and
materials provided by or on behalf of Healthcare Provider in connection with the Cognitive Assessments;
and (iii) all access to and use of the Cognitive Assessments, 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) Use of Assessment Data. You hereby grant BrainCheck a perpetual, irrevocable, non-
exclusive, fully paid-up, worldwide, non-transferrable (except as provided in Section 19.6), sub-
licensable, and royalty-free license (i) to use the Assessment Data (and any copyrights, publicity, database
and other proprietary rights therein) (A) to provide the Cognitive Assessments 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 Assessment Data (“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 Patient.
10. User Content.
(a) Definition of User Content. You may now or in the future be able to post or submit
private content, including responses to surveys and other content (collectively, “User Content”) on or
through the BrainCheck Services.
(b) Ownership of User Content. BrainCheck does not claim any ownership rights in any User
Content. You retain your rights to any User Content that you post or submit on or through the BrainCheck
Services.
(c) Responsibility for User Content. You are solely responsible for the accuracy, quality,
integrity, legality, reliability and appropriateness of your User Content and the consequences of posting
your User Content, including the use of your User Content.
By uploading, sharing and publishing your User Content, you affirm, represent, and warrant that:
(i) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to
post your User Content; (ii) your User Content does not and will not: (A) infringe, violate, or
misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right,
privacy right, right of publicity, or any other intellectual property or proprietary right or (B) slander,
defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity;
and (iii) your User Content does not contain any viruses, adware, spyware, worms, or other malicious
code or any content or file that provides a method to access to potentially infringing content outside of
any of the BrainCheck Services.
(d) Rights in User Content Granted by You. By posting or submitting your User Content to
or through the BrainCheck Services, you hereby grant to BrainCheck a perpetual, irrevocable, non-
exclusive, fully paid-up, worldwide, non-transferrable (except as provided in Section 19.6), sub-
licensable, and royalty-free license to use such User Content (and any copyrights, publicity, database and
other proprietary rights therein) in connection with the Care Plan Services without restriction so long as it
does not (i) violate theses Terms, the Privacy Policy or any applicable Privacy and Security Laws and (ii)
disclose any specific identifiable individual information about you.
11. Prohibited Conduct.
BY ACCESSING OR USING THE COGNITIVE ASSESSMENTS, THE SITE, 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 Assessments, the Site, 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 Assessments, the Site, 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 Assessments or using
the Cognitive Assessments, the Site, 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
Assessments or any of the other BrainCheck Services;
10.4 Copy, disclose, or distribute any data or other information available through the Cognitive
Assessments, the Site, the BrainCheck App or any of the other BrainCheck Services and/or information,
in any medium, including without limitation on the Site, 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 Assessments, the Site, 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
Assessments, the Site, 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 the Cognitive Assessments, the Site, the BrainCheck App and/or any of the other 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 Assessments, the Site, 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.
12. Mobile and Data Services.
You are responsible for any mobile and data charges that you may incur for accessing and using
the Cognitive Assessments, the Site, 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.
13. Termination; Terms of Use Violations.
13.1 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 Assessments, 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 Assessments or BrainCheck App or discontinue
providing access to the Cognitive Assessments 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 Assessments 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 the Cognitive Assessments, the Site, the BrainCheck App or any of the
other BrainCheck Services, and BrainCheck shall be permitted to terminate access to the Cognitive
Assessments, the Site, 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.
13.2 You. Your only remedy with respect to any dissatisfaction with (i) the Cognitive
Assessments, the Site, 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 Assessments or
operating the Cognitive Assessments, the Site, the BrainCheck App or the other BrainCheck Services is to
terminate your use of the Cognitive Assessments, the Site, the BrainCheck App and any of the other
BrainCheck Services. You may terminate your use of the Cognitive Assessments, the Site, 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.
14. Ownership; Feedback.
BrainCheck shall own all right, title and interest in the Cognitive Assessments, the Site, 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 Assessments, the Site, 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.
You grant to BrainCheck a perpetual, irrevocable, non-exclusive, fully paid-up, worldwide, non-
transferrable (except as provided in Section 19.6), sub-licensable, and royalty-free license to use, publish,
edit, translate, distribute, display and incorporate any ratings, comments, suggestions, feedback,
improvement requests or other recommendations you provide relating to the Cognitive Assessments, the
Site, the BrainCheck App, or any of the other BrainCheck Services without restriction (“Feedback”).
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.
15. 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 Assessments, the Site, the BrainCheck App or any of the other BrainCheck Services,
any Assessment Data, 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.
16. No Warranties; Disclaimers.
16.1 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 ASSESSMENTS,
THE SITE, THE BRAINCHECK APP, THE OTHER BRAINCHECK SERVICES AND THE
ASSESSMENT DATA, 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 ASSESSMENTS, THE SITE, THE BRAINCHECK APPOR THE OTHER
BRAINCHECK SERVICES OR THE ASSESSMENT DATA, 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 ASSESSMENTS, THE SITE, THE BRAINCHECK APP OR THE OTHER
BRAINCHECK SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED
HEREIN.
16.2 “As Is” and “As AVAILABLE” AND “WITH ALL FAULTS”.
YOU EXPRESSLY AGREE THAT THE COGNITIVE ASSESSMENTS, THE SITE, THE
BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES, THE ASSESSMENT
DATA, ANY DATA, ASSESSMENTS, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE,
CONTENT, THIRD-PARTY SITE, ADVERTISEMENTS, SERVICES, OR APPLICATIONS MADE
AVAILABLE IN CONJUNCTION WITH OR THROUGH THE COGNITIVE ASSESSMENTS, THE
SITE, 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.
16.3 Operations and Content.
THE BRAINCHECK PARTIES DO NOT WARRANT THAT THE ASSESSMENT DATA,
ANY OTHER DATA, RESULTS, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION
OFFERED ON OR THROUGH THE COGNITIVE ASSESSMENTS, THE BRAINCHECK APP, THE
SITE 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.
16.4 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 ASSESSMENTS,
THE SITE, THE BRAINCHECK APP AND THE OTHER BRAINCHECK SERVICES OR THE
ASSESSMENT DATA OR ANY THIRD-PARTY SITE IN TERMS OF CORRECTNESS,
ACCURACY, RELIABILITY, OR OTHERWISE.
16.5 Harm to Your Computer.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR
OTHERWISE OBTAIN THE ASSEEMENT DATA, CONTENT, INFORMATION, MATERIALS,
ASSESSMENTS, RESULTS OR DATA THROUGH THE COGNITIVE ASSESSMENTS, THE SITE,
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.
17. LIMITATION OF LIABILITY AND DAMAGES.
17.1 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 ASSESSMENTS, THE SITE, THE BRAINCHECK
APP OR ANY OF THE OTHER BRAINCHECK SERVICES, OR ANY ASSESSMENT DATA 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.
17.2 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 ASSESSMENTS, THE SITE, THE BRAINCHECK
APP OR ANY OF THE OTHER BRAINCHECK SERVICES, OR ANY ASSESSMENT DATA OR
THESE TERMS, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT,
TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE GREATER OF
(A) $25 AND (B) AN AMOUNT EQUAL TO THE FEES PAID BY YOU DURING THE TWELVE
(12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
17.3 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.”
17.4 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.
17.5 Basis of the Bargain.
YOU ACKNOWLEDGE AND AGREE THAT BRAINCHECK HAS OFFERED THE
COGNITIVE ASSESSMENTS, THE SITE, THE BRAINCHECK APP AND THE OTHER
BRAINCHECK SERVICES, AND THE ASSESSMENT DATA, 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 ASSESSMENTS, THE
SITE, THE BRAINCHECK APP OR ANY OF THE OTHER BRAINCHECK SERVICES, OR THE
ASSESSMENT DATA, TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT
THESE LIMITATIONS.
17.6 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.
18. Export Controls.
You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the
Cognitive Assessments, the Site, 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.
19. Miscellaneous.
19.1 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.
19.2 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.
19.3 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 Cognitive Assessments,
the Site, the BrainCheck App or any of the other BrainCheck Services, or the Assessment Data (a
“Dispute”) will be resolved in accordance with this Section 19.3 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 19.3(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 Assessments, the Site, 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 19.3 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 19.3. All claims filed or brought contrary to this Section 19.3 shall be
considered improperly filed. Should you file a claim contrary to this Section 19.3, 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.
19.4 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.
19.5 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. [{{type}} Annotation]
19.6 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.
19.7 Survival.
Upon termination of these Terms, your use of the Site, 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 – 19.
19.8 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.
19.9 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.
19.10 No Agency.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is
intended or created by these Terms.
19.11 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 Assessments, the Site, 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.
19.12 Electronic Communications.
The communications between you and BrainCheck use electronic means, whether you visit the
Site or the other BrainCheck Services or send BrainCheck e-mails, or whether BrainCheck posts notices
on the Site 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.
19.13 Disclosures.
The Cognitive Assessments, the Site, 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.
© 2023 BrainCheck, Inc.