Updated January 24, 2020
BrainCheck, Inc. (“BrainCheck”, “us” or “we”) provides technology for Organizations and Individuals (together with Organizations, collectively, the “Users” or “you”) to measure and track information about cognitive health. BrainCheck’s technology may be delivered to you through its website located at braincheck.com (the “Website”), its mobile software application (the “BrainCheck App”), or through schools, doctors and other third parties using one or more software applications (the “Applications”). The technology and services provided through the Website, the BrainCheck App and the Applications are collectively hereinafter referred to as the “Services.”
To access and use the Services, you (or someone else on your behalf) must select and pay for one of the plans described on the Website (as modified from time to time, the “Plans”). The Plans define the scope of the Services, including, the number of Users and the specific features to which you will have access.
BrainCheck reserves the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement at any time by posting the amended Agreement to the Website, the BrainCheck App and/or the Applications. If BrainCheck updates this Agreement, it will update the “Last Modified” date at the top of this Agreement. Please check this Agreement. Your continued use of the Website, the BrainCheck App, the Application or the Services after the posting of changes constitutes your binding acceptance of such changes. In the event that a change to this Agreement materially modifies your rights or obligations (including applicable fees), BrainCheck will make reasonable efforts to notify you of such change. BrainCheck may provide notice through a pop-up or banner within the Website, the BrainCheck App and/or the Applications, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Agreement materially modifies your rights or obligations, BrainCheck may require you to provide consent by accepting the changed Agreement. If BrainCheck requires your acceptance of the changed Agreement, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by BrainCheck, such amended Agreement will automatically be effective, replacing the previously-effective Agreement, thirty (30) days after they are initially posted on the Website, the BrainCheck App and/or the Applications. IF AT ANY TIME YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE IMMEDIATELY TERMINATE YOUR USE OF ALL SERVICES.
To the extent that any modifications to this Agreement are not allowed under applicable laws, the prior most recent version of the Agreement shall continue to apply.
USE OF THE SERVICES
The Services may include material, such as software, text, graphics, images, video, audio, data and other material (collectively referred to as the “Content”). BrainCheck makes no claim of ownership in connection with any Third-Party Content and makes either licensed use or fair use of such Content. The Content is protected by copyright under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content and you may not use the Content except as specifically permitted under this Agreement.
BrainCheck is a trademark of BrainCheck, Inc. All other trademarks referenced, depicted, or otherwise used in connection with the Services (the “Third-Party Trademarks”) belong to their respective owners or licensees and BrainCheck is not affiliated with, sponsored by, or otherwise associated with such entities unless such a relationship is explicitly identified in the Services. The Third-Party Trademarks may not be used to disparage any applicable third-party, any of their products or services, or in any manner in which, in our reasonable judgment, may damage any goodwill in the Third-Party Trademarks.
The Services may include links to, and content and data from, third-party websites (“External Sites”). These links, content, and data are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. In addition, the Services may contain content posted, stored, or displayed at the direction of users of the Services, for which we cannot accept any responsibility or liability.
The Services shall only be used in accordance with the applicable Plan that you are authorized to access and use. The following activities are expressly prohibited: (i) collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other communications, (ii) any use of the Services, which in our sole judgment, degrades the reliability, speed, or operation of the Services or any underlying hardware or software thereof, and (iii) any use of the Services that is unlawful or in violation of this Agreement. Installing the BrainCheck App grants BrainCheck the right to send the identifiers for your device to third parties for the use of advertising.
The Services are for use by individuals 13 years of age or older. By using the Services, you represent and warrant that you are at least 13 years old and that your parent or guardian has consented to your access and use of the Services.
To sign-up for a Plan, you must be at least 18 years old and you represent and warrant that you are at least 18 years old and otherwise legally qualified to enter into and form contracts under applicable law.
Access and use of the Services is subject, in our sole discretion, to termination at any time. This Agreement is void where prohibited by law.
LICENSE TO USE THE SERVICES
We are providing you with access to use the Services pursuant to a limited, non-exclusive, non- sublicenseable, non-transferable, revocable license with respect to the Services you (or someone on your behalf) purchased based upon the Plan and the fees that were paid. You can use the Services solely in accordance with the applicable Plan and the terms and conditions of this Agreement. This license is available to you as long as your account is not terminated by us, your Organization or by you. If this Agreement is not valid or enforceable where you are located, you may not use the Service. BrainCheck reserves all right, title, and interest not expressly granted under this license to the fullest extent possible under applicable laws.
The Services, including the Website, the BrainCheck App and the Applications, or any portion thereof, may not be reproduced, duplicated, copied, modified, sold, resold, distributed, visited, or otherwise exploited for any commercial purpose without the express written consent of BrainCheck. Except as expressly set forth herein, this Agreement grants you no rights in or to the intellectual property of BrainCheck or any other party. The license granted in this section is conditioned on your compliance with the terms and conditions of this Agreement. In the event that you breach any provision of this Agreement, the license and your rights under this section will immediately terminate.
If you are accessing and using the Services on behalf of an Organization (e.g., as a coach using the Services for her team, etc.) or otherwise providing access and use of the Services on behalf of a User other than yourself, you shall obtain all releases, waivers, approvals and other consents (collectively, the “Consents”) necessary for any User who may access and use the Services in accordance with the requirements of your Organization and all applicable laws and practices, including the Consents of the parents or guardians of all Users who are under 18.
TERMS RELATING TO THE USE OF THE BRAINCHECK APP
When accessing the Services through the BrainCheck App that was downloaded from an app store or app distribution platform, such as the Apple App Store or Google Play, (the “App Provider”), you acknowledge and agree that: (a) this Agreement is concluded between us, and not with the App Provider, and that we are solely responsible for the BrainCheck App (not the App Provider); (b) the App Provider has no obligation to furnish any maintenance and support services with respect to the BrainCheck App; (c) in the event of any failure of the BrainCheck App to conform to any applicable warranty, (i) you may notify the App Provider and the App Provider will refund the purchase price for the BrainCheck App to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the BrainCheck App, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility; (d) the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the BrainCheck App or your possession and use of the BrainCheck App, including, but not limited to: (i) product liability claims; (ii) any claim that the BrainCheck App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; (e) in the event of any third party claim that the BrainCheck App or your possession and use of the BrainCheck App infringes that third party’s intellectual property rights, we will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement; (f) the App Provider, and its subsidiaries, are third party beneficiaries of this Agreement as it relates to your license of the BrainCheck App, and that, upon your acceptance of the terms and conditions of this Agreement, the App Provider will have the right (and will be deemed to have accepted the right) to enforce this Agreement as related to your license of the BrainCheck App against you as a third party beneficiary thereof; and (g) you must also comply with all applicable third party terms of service, including the Apple App Store Terms and Conditions and the Usage Rules or the Google Play Terms of Service, when using the BrainCheck App.
The Services are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States. Any use of the Services beyond the scope of the foregoing license is strictly prohibited.
Except with our written permission, you shall not:
Attempt to impersonate another User or use another User’s BrainCheck account information without authorization;
Use or distribute the Services for your own scientific or clinical research purposes;
Violate or attempt to violate BrainCheck’s security features, including logging into a server that you are not authorized to access, or probing the vulnerability of BrainCheck systems and networks;
Decipher, decompile, disassemble, reverse engineer, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architectures, structures or other elements of the BrainCheck App, the Applications or any of the Services, in whole or in part (except to the extent that the laws of your jurisdiction make such restrictions unenforceable);
Use any of the Services for the benefit of anyone other than your Organization, yourself or others included under the applicable Plan, including selling, reselling, distributing, hosting, leasing, renting, licensing or sublicensing, in whole or in part, any of the Services, for hosting or time-sharing services, or as part of a service bureau or outsourcing offering;
Prepare any derivative work of the BrainCheck App, the Applications or any of the Services, or any other program based upon any of the Services;
Reproduce, modify, adapt, translate or otherwise make any changes to the BrainCheck App, the Applications or the Services or any part thereof;
Copy, disclose, or distribute any data available on or through the BrainCheck App, the Applications or any of the Services, in any medium, including without limitation, by any automated or non-automated “screen scraping,” “database scraping” or any other activity with the purpose of obtaining content or other information;
Access or search the Services by any means other than our publicly supported interfaces;
Interfere with other Users’ use and enjoyment of the Services;
Use BrainCheck or any trademarks, trade names, service marks, copyrights, or logos of BrainCheck, in unsolicited mailings, spam material, contests or surveys, or to create the impression that such items are associated with you;
Violate any third party’s rights, including intellectual property or privacy rights;
Threaten, stalk, harm, or harass others; or engage in activity in connection that is fraudulent, abusive, defamatory, illegal or otherwise inappropriate
Use bots or other automated methods to: access any of the Services, send or redirect messages or perform any other activities through any of the Services;
Use any of the Services for any unlawful or inappropriate activities, such as transmission of deceptive messages, or harassment;
Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the BrainCheck App, the Applications or any of the Services or place pop-up windows over the Website’s pages;
Deep-link to any of the Services without BrainCheck’s consent; or
Share or disclose information of other Users without their express consent.
Engaging in any prohibited uses is grounds for immediate termination of your right to use the Services, and may also subject you to civil and criminal penalties.
You agree to defend, indemnify, and hold BrainCheck and its affiliates and their respective employees, directors, officers, affiliates, contractors, agents and its third-party suppliers, licensors, and partners (collectively, the “BrainCheck Parties”) harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from your breach of the terms and conditions of this Agreement, including your failure to obtain any necessary Consents, or your uploading of, access to, or use or misuse of the Content or the Services. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY
IN NO EVENT SHALL BRAINCHECK OR ANY OF THE BRAINCHECK PARTIES BE LIABLE WITH RESPECT TO THE SERVICES FOR (A) IN THE AGGREGATE, ANY AMOUNT IN EXCESS OF THE FEES PAID BY YOU TO USE THE SERVICES; (B) LOST PROFITS, LOST DATA, OR FAILURE TO MEET ANY DUTY INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE ARISING OUT OF YOUR ACCESS TO OR USE OF THE SERVICES; OR (C) ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF A WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN BRAINCHECK AND YOU. YOU UNDERSTAND THAT THE SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
YOU AGREE THAT USE OF THE SERVICES IS AT YOUR OWN SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRAINCHECK AND EACH OF THE BRAINCHECK PARTIES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
BRAINCHECK STRIVES TO MAINTAIN THE SERVICES ON A COMMERCIALLY REASONABLE BASIS BUT CANNOT GUARANTEE THAT YOU WILL HAVE ACCESS TO THE SERVICES AT ALL TIMES.
BRAINCHECK AND EACH OF THE BRAINCHECK PARTIES, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICES OR THE CONTENT (INCLUDING THE USER CONTENT), INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY.
NEITHER WE NOR ANY OF THE BRAINCHECK PARTIES SHALL BE SUBJECT TO LIABILITY FOR TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION CONVEYED TO USERS OF THE SERVICES OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. YOU AGREE THAT YOUR USE OF THE SERVICES AND THE CONTENT IS AT YOUR OWN RISK.
WE MAKE NO WARRANTY THAT THE SERVICES, THE BRAINCHECK APP OR THE APPLICATIONS WILL OPERATE ERROR FREE OR THAT THE SERVICES, OUR SERVER(S), OR THE CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICES OR THE CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WE SHALL NOT BE RESPONSIBLE FOR THOSE COSTS.
THE BRAINCHECK APP, THE APPLICATIONS, THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. WE HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
If you have a dispute with any other Users (including any Organization) or other third parties, you hereby release BrainCheck and each of the 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. If you are a California resident, you waive California Civil Code Section 1542, 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.”
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 EXTERNAL SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN BRAINCHECK AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE SERVICES OR RECEIVED THROUGH ANY EXTERNAL SITES.
THE SERVICES DO NOT PROVIDE PROFESSIONAL MEDICAL SERVICES OR ADVICE
BrainCheck provides the BrainCheck App and Services to measure and track information about cognitive health. CLINICAL APPLICATION OF THE INFORMATION OBTAINED BY USE OF THE BRAIN CHECK APP AND THE SERVICES IS THE SOLE RESPONSIBILITY OF THE USER. THE 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 BRAIN CHECK APP OR SERVICES IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. ANY INFORMATION CONTAINED IN THE BRAINCHECK APP OR THE SERVICES SHOULD NOT BE RELIED UPON AS THE BASIS OF ANY HEALTH-CARE DECISION. By using the BrainCheck App and Services in a clinical setting or while providing any type of medical care to a third party, you represent and warrant that you are a trained medical professional and you acknowledge that (a) BrainCheck assumes no liability regarding the use of information obtained by the use of the Brain Check App and Services and (b) you agree not to hold BrainCheck or any of its directors, officers, employees, agents, suppliers or partners, liable in any way for the use and or outcomes arising from the use of any information obtained by the use of the Brain Check App and Services.
The Services may now or in the future permit the submission of Content at the direction of users of the Services (“User Content”) and the hosting, sharing, and/or publishing of such User Content. You understand that whether or not such User Content is published, we do not guarantee any confidentiality with respect to any submissions.
You shall be solely responsible for User Content you submit and the consequences of our posting or publishing such User Content. In connection with any User Content you submit, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Content to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement; and (ii) you have the express consent, release, and/or permission of each and every identifiable individual person in the User Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Content in the manner contemplated by the Services and this Agreement. By submitting the User Content to us, you hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of the User Content in connection with our operation of the Services and our (and our successors’) business, including without limitation for promoting and redistributing part or all of the Services (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User of the Services a non-exclusive license to access your User Content through the Services, if you have permitted such access through your account settings, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Content as permitted through the functionality of the Services and under this Agreement. We may maintain copies of any User Content for purposes of backup, security, or maintenance, or as required by law.
In connection with User Content, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant us all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage us or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person. We do not endorse any User Content or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with any User Content. We do not permit copyright infringing activities or infringement of intellectual property rights through the Services, and we will remove all Content and User Content if properly notified that such Content or User Content infringes on another’s intellectual property rights. We may remove any Content and User Content without prior notice. We may also terminate your access to the Services, if you are determined to be a repeat infringer. A repeat infringer is anyone who has been notified of infringing activity more than once and/or has had any User Content removed from the Services more than twice. We also reserve the right to decide whether Content or User Content is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, including, but not limited to, pornography, obscene or defamatory material, or excessive length. We may remove such User Content and/or terminate your access for uploading such material in violation of this Agreement at any time, without prior notice and at our sole discretion.
If you are a copyright owner or an agent thereof and believe that any User Content or other Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address; (v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our designated Copyright Agent to receive notifications of claimed infringement and other notices relating to User Content and/or violation of this Agreement (e.g., violations of criminal laws) is Amy Ewbank, c/o BrainCheck, Inc./ Email: firstname.lastname@example.org. For clarity, only DMCA notices and notices relating to complaints in connection with User Content or violations of this Agreement should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be addressed to our standard support contacts as identified on our Website or through the Services.
BrainCheck may use your name and logo and briefly describe you in BrainCheck’s marketing materials and website, solely to identify you as a user of the Services. BrainCheck may not alter or otherwise use your company name or logo without your prior written consent.
UNITED STATES EXPORT CONTROLS
You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the Services or any underlying intellectual property, information or technology except in full compliance with all United States, foreign and other applicable export control laws and regulations.
BrainCheck is based in the state of Texas in the United States. BrainCheck makes no claims that any of the Services or any of the content is accessible or appropriate outside of the United States. Access to the Website, the BrainCheck App, the Applications or any of the Services may not be legal by certain persons or in certain countries. If you access any of these 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.
The communications between you and BrainCheck use electronic means, whether you visit the Website, the BrainCheck App, the Applications or any of the Services or send BrainCheck e-mails, or whether BrainCheck posts notices on the Website, the BrainCheck App, the Applications or any of the Services or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from BrainCheck in an electronic form; and (2) 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.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction.
This Agreement is governed by the internal substantive laws of the State of Texas, without respect to its conflict of laws provisions. You expressly agree to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the City of Houston in the State of Texas. 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 THIS AGREEMENT OR ANY OF THE SERVICES. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Agreement, which shall remain in full force and effect. Failure by us to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you, this Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.
The Website, the BrainCheck App, the Applications and the Services are offered by BrainCheck, Inc. located at: BrainCheck, Inc., 5615 Kirby Dr. #690, Houston, TX 77005.
If you are a California resident, you may have this same information emailed to you by sending a letter to BrainCheck, Inc., 5615 Kirby Dr. #690, Houston, TX 77005 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.
BUSINESS ASSOCIATE AGREEMENT
This HIPAA Business Associate Agreement (the “Agreement”) is entered into upon acceptance of the terms below by and between any medical professional or clinical user of the BrainCheck platform who utilizes the BrainCheck test to assess individuals or any third party (“Covered Entity”), and BrainCheck, Inc. (“Business Associate”) (each a “Party” and collectively the “Parties”).
Business Associate performs functions, activities or services for, or on behalf of Covered Entity and Business Associate creates, receives, maintains, or transmits Protected Health Information (“PHI”), including Electronic Protected Health Information (“EPHI”), in order to perform such functions, activities or services (referred to collectively as the “Services”). The purpose of this Agreement is to set forth the terms and conditions of disclosure of PHI by Covered Entity to Business Associate, to set forth the terms and conditions of Business Associate’s use and disclosure of PHI, and to ensure the confidentiality, integrity and availability of EPHI that Business Associate creates, receives, maintains or transmits on behalf of Covered Entity. It is the intent of Covered Entity and Business Associate that this Agreement will meet the requirements of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the American Recovery and Reinvestment Act of 2009, Public Law 111-5 (“ARRA”), the Privacy Rule, and the Security Rule, 45 CFR Parts 160 and 164.
Terms used, but not otherwise defined, in this Agreement shall have the same meaning as those terms in HIPAA, ARRA, the Privacy Rule, and the Security Rule. Following are some of the key terms of this Agreement.
2.1 Individual. “Individual” shall have the same meaning as the term “individual” in 45 CFR § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
2.2 Limited Data Set. “Limited Data Set” shall have the same meaning as a “limited data set” described in 45 CFR § 164.514(e)(2).
2.3 Minimum Necessary. “Minimum Necessary” shall have the same meaning as “minimum necessary” described in 45 CFR § 164.502(b) and Section 13405(b) of ARRA.
2.4 Privacy Rule. “Privacy Rule” shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR Parts 160 and Part 164, subparts A and E.
2.5 Security Rule. “Security Rule” shall mean the Security Standards for the Protection of EPHI at 45 CFR Parts 160 and 164, subparts A and C.
2.6 Protected Health Information. “Protected Health Information” or “PHI” shall have the same meaning as the term “protected health information” in 45 CFR § 160.103, but shall be limited to the information created, received, maintained, or transmitted by Business Associate on behalf of Covered Entity.
2.7 Electronic Protected Health Information. “Electronic Protected Health Information” or “EPHI” shall have the same meaning as the term “electronic protected health information” in 45 CFR § 160.103, but shall be limited to the EPHI that Business Associate creates, receives, maintains, or transmits on behalf of Covered Entity.
2.8 Required By Law. “Required By Law” shall have the same meaning as the term “required by law” in 45 CFR § 164.103.
2.9 Secretary. “Secretary” shall mean the Secretary of the United States Department of Health and Human Services or his designee.
2.10 Security Incident. “Security Incident” shall have the same meaning as “security incident” in 45 CFR § 164.304.
2.11 Subcontractor. “Subcontractor” shall have the same meaning as “subcontractor” in 45 CFR § 160.103.
3. Obligations AND ACTIVITIES of Business Associate
3.1 Use and Disclosure. Business Associate agrees to not use or disclose PHI other than as permitted or required by this Agreement and any underlying agreement(s) related to the Services, or as Required By Law. Business Associate shall also comply, where applicable, with the Privacy Rule and the Security Rule.
3.2 Safeguards. Business Associate agrees to use appropriate safeguards and comply, where applicable, with 45 CFR Part 164 Subpart C with respect to EPHI, to prevent use or disclosure of the information other than as provided for by this Agreement.
3.3 Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate in violation of the requirements of this Agreement.
3.4 Reports of Non-Permitted Use or Disclosure. Business Associate agrees to report to Covered Entity any use or disclosure of the PHI not provided for by this Agreement of which Business Associate becomes aware. Where applicable, such report shall comply with the requirements outlined in Sections 3.5 and 3.11.
3.5 Reports of Security Incidents. Business Associate agrees to report to Covered Entity any Security Incident of which it becomes aware. Where applicable, such report shall comply with the requirements outlined in Sections 3.4 and 3.11. This Agreement serves as Business Associate’s notice to Covered Entity that attempted but unsuccessful Security Incidents, such as pings and other broadcast attacks on Business Associate’s firewall, port scans, unsuccessful log-on attempts, denials of service and any combination of the above, regularly occur and that no further notice will be made by Business Associate unless there has been a successful Security Incident.
3.6 Subcontractors. Business Associate agrees to ensure that any Subcontractor that creates, receives, maintains, or transmits PHI (including EPHI) on behalf of Business Associate agrees to the same restrictions and conditions that apply through this Agreement to Business Associate with respect to such information, including but not limited to, compliance with the applicable requirements of 45 CFR Parts 160 and 164. Such agreement between Business Associate and the Subcontractor must be made in writing and must comply with the terms of this Agreement and the requirements outlined in 45 CFR §§ 164.504(e) and 164.314.
3.7 Designated Record Set.
(a) If Business Associate maintains PHI in a Designated Record Set, Business Associate agrees to provide access, at the request of Covered Entity, to PHI in a Designated Record Set, to Covered Entity or, as directed by Covered Entity, to an Individual in order to meet the requirements under 45 CFR § 164.524.
(b) If Business Associate maintains PHI in a Designated Record Set, Business Associate agrees to make available such PHI for amendment and incorporate any amendment(s) to PHI in a Designated Record Set that Covered Entity directs or agrees to pursuant to 45 CFR § 164.526 at the request of Covered Entity or an Individual.
3.8 Internal Practices. Business Associate agrees to make internal practices, books, and records relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of Covered Entity available to the Secretary for purposes of the Secretary determining Covered Entity’s compliance with the Privacy Rule and Security Rule.
3.9 Accounting of Disclosures.
(a) Business Associate agrees to document such disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528.
(b) Business Associate agrees to provide to Covered Entity or an Individual information collected in accordance with Section 3.9(a) of this Agreement, to permit Covered Entity to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528.
3.10 Compliance with Law. To the extent Business Associate is expressly obligated under the underlying agreement(s) to carry out one or more of Covered Entity’s obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligation(s).
3.11 Business Associate’s Obligations Related to Breach of Unsecured PHI.
(a) For purposes of this section, “Breach” and “Unsecured PHI” shall have the same meaning as “breach” and “unsecured protected health information,” respectively, as such terms are defined by 45 CFR § 164.402.
(b) Following the discovery of a Breach of Unsecured PHI, Business Associate shall notify Covered Entity of the Breach. Such notification shall be made without unreasonable delay after discovering the Breach, but no later than sixty (60) calendar days after its discovery.
(c) Business Associate’s notice shall include, to the extent possible, the identification of each Individual whose Unsecured PHI has been, or is reasonably believed by Business Associate to have been, accessed, acquired, used, or disclosed during or as a result of the Breach. Business Associate shall also provide Covered Entity with at least the following information: a description of the Breach, including the date of Breach and the date of discovery of the Breach, if known; a description of the types of Unsecured PHI involved in the Breach; any steps Individuals should take to protect themselves from potential harm resulting from the Breach; a brief description of what Business Associate is doing to investigate the Breach, to mitigate harm to Individuals, and to protect against any further Breaches; and any other information Covered Entity is required to include in notification to the affected Individual(s) under 45 CFR § 164.404(c). Business Associate shall promptly supplement such notice with additional information as it becomes available.
4. Permitted Uses and Disclosures by Business Associate
4.1 General Use and Disclosure.
(a) Except as otherwise limited in this Agreement, Business Associate may use or disclose PHI to perform Services for, or on behalf of, Covered Entity as such services may be specified in any underlying agreement(s), provided that such use or disclosure would not violate the Privacy Rule or the Security Rule if done by Covered Entity.
(b) Business Associate must request, use, and disclose only the Minimum Necessary PHI to accomplish the intended purpose of the request, use, or disclosure. The Party disclosing PHI shall determine what constitutes the Minimum Necessary to accomplish the intended purpose of the disclosure.
4.2 Specific Use and Disclosure.
(a) Business Associate may use or disclose PHI to carry out Business Associate’s legal responsibilities and for the proper management and administration of Business Associate, provided that any such disclosures are Required by Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it becomes aware in which the confidentiality of the information has been breached.
(b) Business Associate may use PHI to provide Data Aggregation services to Covered Entity as permitted by 45 CFR § 164.504(e)(2)(i)(B).
(c) Business Associate may use and disclose PHI to report violations of law to appropriate state and federal authorities, to the extent permitted or required by 45 CFR § 164.502(j)(1) and state law.
(d) Business Associate may de-identify PHI in accordance with the requirements outlined in the Privacy Rule. Data that has been de-identified will no longer be subject to the terms of this Agreement.
5. Obligations of Covered Entity
5.1 Privacy Practices. Covered Entity shall provide Business Associate with the notice of privacy practices that Covered Entity produces in accordance with 45 CFR § 164.520, and shall promptly provide Business Associate with any changes to such notice.
5.2 Notice of Changes and Restrictions. Covered Entity shall notify Business Associate of any changes in, or revocation of, permission by Individual to use or disclose PHI, if such changes affect Business Associate’s permitted or required uses and disclosures. Such notification shall include any restriction that Covered Entity has agreed to in accordance with 45 CFR § 164.522. If Business Associate receives a request to restrict the disclosure of PHI directly from an Individual, Business Associate shall notify Covered Entity of such request and Covered Entity shall be responsible for making the determination, in accordance with the Privacy Rule, as to whether Business Associate shall comply with the Individual’s request.
5.3 Permissible Requests by Covered Entity. Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under the Privacy Rule or the Security Rule if done by Covered Entity, except that Business Associate may use or disclose PHI for data aggregation or management and administrative activities of Business Associate.
5.4 Safeguards. Covered Entity shall use appropriate safeguards to maintain the confidentiality, privacy, and security of PHI in transmitting PHI to Business Associate pursuant to this Agreement.
6. Term and Termination
6.1 Term. This Agreement shall be effective upon the Effective Date and shall remain in effect for the duration of the Services giving rise to the necessity of a Business Associate Agreement, and until all of the PHI provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with Section 6.3(b).
(a) Termination Resulting from the End of Services. This Agreement shall terminate in the event that the underlying agreement(s) under which Covered Entity discloses PHI to Business Associate terminates for any reason, or if the Services that give rise to the necessity of a Business Associate Agreement terminate for any reason.
(b) Termination for Cause. Upon either Party’s knowledge of a material breach of this Agreement by the other Party, the non-breaching Party must either:
Provide an opportunity for the breaching Party to cure the breach or end the violation, and if the breaching Party does not cure the breach or end the violation within the time specified by the non-breaching Party, the non-breaching Party shall terminate this Agreement and any underlying agreement(s); or
Immediately terminate this Agreement and any underlying agreement(s).
6.3 Return or Destruction of PHI.
(a) Except as provided in paragraph (b) of this section, upon termination of this Agreement for any reason, Business Associate shall return or destroy all PHI received from Covered Entity, or created or received by Business Associate on behalf of Covered Entity, that Business Associate still maintains in any form. This provision shall also apply to PHI that is in the possession of Subcontractors of Business Associate. Business Associate shall retain no copies of the PHI.
(b) In the event that Business Associate determines that returning or destroying the PHI is infeasible, Business Associate and its Subcontractors shall extend the protections of this Agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate and/or its Subcontractors maintain such PHI.
7.1 Regulatory References. A reference in this Agreement to a section in the Privacy Rule, the Security Rule, HIPAA, or ARRA, or any other reference to a law or regulation, means the section or law as in effect as of the date of this Agreement or as subsequently amended.
7.2 Amendment. The Parties agree to take such action as is necessary to amend this Agreement from time to time to comply with the requirements of the Privacy Rule, the Security Rule, HIPAA, and ARRA.
7.3 Survival. The respective rights and obligations of Business Associate under Section 6.3 of this Agreement shall survive the termination of this Agreement.
7.4 Interpretation. Any ambiguity in this Agreement shall be resolved in favor of a meaning that permits compliance with the Privacy Rule, the Security Rule, HIPAA, and ARRA.
7.5 Relationship to Other Agreement Provisions. In the event that a provision of this Agreement is contrary to a provision of an underlying agreement or agreements under which Covered Entity discloses PHI to Business Associate, the provision of this Agreement shall control. Otherwise, this Agreement shall be construed under, and in accordance with, the terms of such underlying agreement or agreements between the Parties.
7.6 Prior Business Associate Agreements. Consistent with Section 7.5, this Agreement shall supersede any and all prior business associate agreement(s), or terms of other agreements addressing the privacy and security of PHI, between the Parties.
7.7 Modification of Agreement. No alteration, amendment or modification of the terms of this Agreement shall be valid or effective unless in writing and signed by Business Associate and Covered Entity.
7.8 Relationship of Parties. Business Associate, in furnishing services to Covered Entity, is acting as an independent contractor, and Business Associate has the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed, all work to be performed by Business Associate under this Agreement. Business Associate is not an agent of Covered Entity, and has no authority to represent Covered Entity as to any matters, except as expressly authorized in this Agreement.
7.9 Notices. Any notices required or permitted to be given under this Agreement by either Party shall be given in writing: (a) by personal delivery; (b) by electronic facsimile with confirmation sent by United States first class mail; (c) by bonded courier or nationally recognized overnight delivery service; or (d) by United States first class registered or certified mail, postage prepaid, return receipt requested, addressed to the Parties at the addresses set forth below or to such other addresses as the Parties may request in writing by notice pursuant to this Section 7.9. Notices shall be deemed received on the earliest of personal delivery, upon the next business day after delivery by electronic facsimile with confirmation that the transmission was completed or upon receipt by any other method of delivery.
Covered Entity: Address on file
Business Associate: BrainCheck, Inc., c/o Yael Katz, PhD, BrainCheck, Inc., 5615 Kirby Dr. #690, Houston, TX 77005.
7.10 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and when taken together shall constitute one agreement.
7.11 Governing Law. This Agreement will be governed by and construed in accordance with the laws of Texas.