CLIENT SUBSCRIPTION AGREEMENT
This Client Subscription Agreement (“Agreement”) is entered into between Well Noggin, LLC (“Well Noggin,” “we,” “us,” or “our”) and the Customer identified below (“Customer,” “you,” or “your”), each individually referred to in this Agreement as a “Party” and collectively as the “Parties”. In consideration of the benefits and obligations exchanged in this Agreement, the Parties agree as follows:
READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY CLICKING “I ACCEPT,” REGISTERING FOR AN ACCOUNT, DOWNLOADING OR USING OUR APP, OR OTHERWISE ACCESSING OR USING THE SERVICE YOU (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER OR HAVE A PARENT OR LEGAL GUARDIAN’S CONSENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS (OR YOUR LEGAL GUARDIAN DOES, IF APPLICABLE). IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT USE THE SERVICE AND DELETE IT FROM YOUR MOBILE DEVICE. SUBSCRIPTIONS TO THE SERVICE ARE AVAILABLE ONLY TO INDIVIDUALS AND ORGANIZATIONS THAT CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW. IF YOU DO NOT QUALIFY FOR THE SERVICE, PLEASE DO NOT ATTEMPT TO REGISTER FOR, ACCESS, OR USE THE SERVICE.
- “Account Administrator” means an end user of the Service who (a) registers an account and (b)
can view Game play and SIT result information that is added to the Service by a Player Profile(s) or by Account Administrator. If an Account Administrator is affiliated with an Organization, account registration will be available via an Organization access code, as described in Section 3; Account Administrators are considered an “Admin Profile.”
- “Agreement” means these terms and conditions, any schedules, and any documents incorporated by reference.
- “App” means the features Well Noggin makes available on Mobile Devices (as defined in the EULA), whether in the form of an installed app or a progressive web app (PWA) or web page, including interactive digital games (the “Games”) and the Sign Inventory Tool neurological assessment (the “SIT”) which are used to establish cognitive baselines and provide objective cognitive criteria, which Customer is being granted access to under this Agreement.
- “Customer Data” means any data, information, or material provided by Customer to Well Noggin.
- “EULA” means the Well Noggin End User License Agreement, incorporated herein by reference that Account Administrators must agree to when registering an account.
- “Fees” means the Service fees payable by you to Well Noggin or in the in-App Subscription Pages, and as may be changed from time to time in accordance with this Agreement.
- “Intellectual Property Rights” means patent rights, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secret rights, and all other intellectual property rights, derivatives thereof as well as other schedules of protection of a similar nature.
- “Organization” is an organization, company, government entity or subdivision, school, school district, consortium, business organization, commercial enterprise, not-for-profit organization or other entity, including without limitation any school district, sports league, or team, which may be a Customer.
- “Player Profile” means an end user linked to a registered account of the Service who (a) has the ability to play the Games and be administered the SIT, (b) has had a fee paid by an Account Administrator or an Organization, and (c) has agreed to, or whose legal guardian or representative has agreed to, the EULA; a Player Profile must only be used by one natural person and cannot be shared or transferred.
- “Service” means the App, administrative software and functions, and all associated operations Well Noggin makes available to you or other users.
- “Subscription” is the physical, electronic, or online Well Noggin order form that is completed by you or an authorized representative of an Organization, and which describes the covered purchase.
- “Subscription User” means an Account Administrator or Player Profile associated with you.
2. License Grant & Restrictions. Well Noggin hereby grants Customer a non-exclusive, non-transferable, worldwide right to use the App with the number of Player Profiles indicated in the attached Order Form, subject to the terms and conditions of this Agreement. During the Term of this Agreement, Customer may access and use the App and make the App available to individuals, legal guardians, and other users affiliated with its Organization for online enrollment and/or other features Well Noggin offers. Other than as expressly provided herein, Customer agrees not to: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise make the App available to any third party; (ii) modify or make derivative works based upon the App; or (iii) reverse engineer the App. Customer will not, directly or through any other person: (i) knowingly send or store infringing, obscene, libelous, or otherwise unlawful or tortious material to Well Noggin; (ii) knowingly send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, or programs to or from Well Noggin; (iii) interfere with or disrupt the integrity or performance of the App or the Service; (iv) attempt to gain unauthorized access to the App, the Service, or its systems or networks; or (v) use the App or the Service in violation of applicable law.
Access Codes. Organizations who enter into this Client Subscription Agreement will receive an “Organization Code” that will allow individuals, legal guardians, and other users affiliated with your Organization to register App accounts as Account Administrators, and that links accounts with specific Player Profiles (students or league players) associated with the Organization. Account Administrators must register and use their accounts in accordance with the EULA and this Agreement. Each account created with or linked to your Organization Code is an “Authorized Account” under your Subscription. The number of Authorized Accounts or Player Profiles you can create may be limited as set forth in the Order Form. When there is an overage of Subscription Users, your sole options will be to either, at your discretion, reduce usage accordingly or increase the quantity of permitted Authorized Accounts based on the applicable pricing in effect at the time from the latest Order Form. You are responsible at all times for ensuring that all accounts using your Organization Code are used solely in accordance with this Agreement, and for the activities of any person accessing the Service using any Authorized Account. Well Noggin may suspend access to your use of the Service or App as provided in Section 12 or terminate your Subscription, in whole or in part, at any time if Well Noggin reasonably determines that such action is appropriate to (a) prevent errors or any other harm with respect to the Service, App, or other properties, services, web sites, and applications serviced by the Service, (b) respond to your or an Authorized Account holder’s breach of this Client Subscription Agreement or the EULA, as applicable, or (c) limit Well Noggin’s liability or potential liability. Well Noggin will use reasonable efforts to notify you following any such suspension or termination.
Access to Games and SIT. Only Player Profiles shall have access to play the Games and to be administered the SIT. Account Administrators affiliated with an Organization shall not have such access without separately paying to upgrade their Admin Profile status within the App. Account Administrators unaffiliated with an Organization shall only receive such access by making the appropriate in-App purchase when registering.
Customer Responsibilities. Customer is responsible for all activity occurring under Customer user accounts (including all Account Administrators and Player Profiles) and will abide by all applicable laws, treaties and regulations in connection with its use of the App.
End User Requirements; No Account Administrators Under the Age of 13.
In connection with your use of the Service, you shall identify and provide to us, either in the Order Form or through some other means, potential end users, along with their e-mail addresses and/or other contact information reasonably necessary for the deployment or provision of the App or Services to such potential end users. You acknowledge and agree that individuals under the age of 13 are not permitted to register (create an Account Administrator
b. You further acknowledge that each Player Profile should establish their cognitive baselines, referenced in Section 1c, in the App before the Service can be properly utilized for its intended purpose. You may initiate additional Order Forms during the Term to add new Authorized Accounts to your Subscription for the Service at the then-current prices and terms, subject to acceptance by Well Noggin. In no event will Well Noggin be responsible or liable for any individual’s (1) failure, inability, or election not to install, download, update, or use the App, or (2) deletion of, or election to uninstall or cease using, the App, and Well Noggin shall not be responsible or liable for the provision of the Service with respect to such end user. Well Noggin does not warrant, and is not responsible for, the compatibility of the App with any device, operating system, or other software. You are solely responsible for ensuring that your end users obtain and configure the required mobile device, hardware, software, and telecommunication services to access, install, download, update, and/or use the App. You agree not to bring any claim, suit, cause of action, or other proceeding against Well Noggin or any of its affiliates,
Customer Data. Well Noggin does not own any Customer Data. Customer Data is Customer’s proprietary and confidential information and will not be accessed, used, or disclosed by Well Noggin except for the limited purpose of supporting Customer’s use of the App. Customer has sole responsibility for the accuracy, legality, reliability, and intellectual property ownership to use the Customer Data. By sharing the Customer Data with us through the App, or by authorizing a third-party to share the information with us, you represent and warrant that you have the legal right to share the Customer Data with us, to cause such information to be shared with us, and/or have obtained all necessary legal consents to share (or authorize the sharing) of such information with us. You grant Well Noggin a world-wide, perpetual, non-exclusive, royalty-free, sublicensable, transferable license to use and prepare derivative works from the Customer Data for the fulfillment of the Services.
Intellectual Property Ownership. Well Noggin retains and owns all right, title, and interest, including without limitation all related Intellectual Property Rights, in and to the Subscription and the App. This Agreement is not a sale and does not convey any rights of ownership, nor does it grant Customer any intellectual property rights in the App or any of its components.
Privacy. Well Noggin’s privacy notice is available on Well Noggin’s website https://safebrain.com/privacy-policy/. Well Noggin may modify this policy in its reasonable discretion from time to time with notice to Customer.
10. Charges and Payment of Fees. You agree to pay all of the Fees in the Order Form. Unless otherwise stated in the Order Form, Fees for the Service will be invoiced in advance in accordance with the terms of the Order Form. You authorize Well Noggin or its third-party payment providers to charge you for all Fees by the payment method indicated on the Order Form (the “Payment Method”). If you pay any Fees with a credit card, Well Noggin may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You acknowledge and agree that any credit card and related billing and payment information that you provide to Well Noggin may be shared by Well Noggin with companies that work on Well Noggin’s behalf, such as payment processors, for the purposes of effecting payment to Well
Noggin and servicing your account. The terms of your payment will be based on your chosen Payment Method and may be determined by agreements between you and the financial institution providing such Payment Method. Payment obligations are non-cancellable and all fees are non-refundable unless otherwise provided by law. Notwithstanding the foregoing, you may be given a refund of the Fees you have paid in advance for the unused portions of the Term if the Service is permanently discontinued by Well Noggin or if this Agreement or your Subscription is terminated by Well Noggin for any reason other than as provided in this Section 10 or Section 12 or for violation of the EULA. If your Payment Method fails or your accounts are past due, (a) you agree to pay all amounts due on your account upon demand, (b) Well Noggin may collect fees owed using other collection mechanisms, (c) Well Noggin reserves the right to either suspend or terminate you and access by all of your Authorized Accounts to the Services, and your account with Well Noggin, as described in Section 12, and/or (d) you agree to pay a late fee of 1.5% per month or the maximum charge permitted by law, whichever is less, as well as any costs Well Noggin incurs to collect all amounts due from you, including without limitation reasonable collection and attorneys’ fees and court costs. You are responsible for paying any and all withholding, sales, value added, or other taxes, duties, or charges applicable to this Agreement, other than taxes based on Well Noggin’s income.
Billing and Renewal. Customer will pay Well Noggin in advance for use of the App during the subscribed period of use, as indicated in the applicable Order Form (each, a “Term”). Upon the expiration of a Term, the Term will automatically renew for an additional one-year period (a “Renewal Term”). Renewal Terms will be charged at our then-current rates unless you provide us with notice of your intent not to renew by contacting us at [email protected] at least 30 days prior to the scheduled renewal. Well Noggin’s fees are exclusive of all taxes, levies, or duties. If Customer is 30 days or more late for a payment, access to the App and the Service may be suspended after providing Customer notice and a reasonable opportunity to cure. If Customer is late two or more times during a Term, access by all users associated with Customer may be suspended to the App and the Service until all outstanding payments are current.
Well Noggin’s Right to Cancel or Suspend your Subscription.
Without Cause. The Service is not guaranteed to be available at all times. We may terminate your Subscription or any aspect of the Service for any reason, including the elimination of the types of Subscription or application components you have, our inability to maintain any component of the Service, the termination of an agreement with a service provider, etc. If we terminate your Subscription or the Service without cause (due to no fault on your part), we will engage in our best efforts to give you notice 30 days prior to the effective date of termination. This means that we can decide to cease providing some or all of the Services to you at any time and for any reason, even for reasons unrelated to you or your account with us.
With Cause. We may terminate your Subscription or any aspect of the Service, without prior notice to you, for any good cause. This means, for example, we can terminate your Subscription immediately if you breach any part of this Agreement, do not pay amounts that are due to us or one of our service providers, interfere with our efforts to provide the Service, interfere with our business, or if you use the Service for illegal or improper purposes. In such case, you will not have any right to have your Subscription reactivated, nor receive a refund of any amounts paid, nor have the Term extended, even if you cure any of these problems. We may, in our sole discretion, allow reactivation of your Subscription and/or all of some of the Service, but such reactivation shall not oblige us to reactivate your Subscription at any other time.
Suspension. We may temporarily suspend your Subscription, or any aspect of the Service, for any reason (scheduled maintenance, security threats, software errors, disputes or problems with service providers, etc.), including any of the reasons permitting termination under Section 12(a) or Section 12(b) above. In these instances, we will use commercially reasonable efforts to notify you of the reason and anticipated duration of the suspension, but you shall hold Well Noggin harmless for any such suspension.
Evolving Nature of the Service. The Service is subject to change from time to time. Well Noggin reserves the right, at its discretion, to change, modify, add, remove, or discontinue the Service, in whole or in part, at any time without liability to you. If you are at any time dissatisfied with the Service, your sole remedy is to discontinue use of the Service.
Representations & Warranties.
- Each Party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitute a legal, valid, and binding obligation when executed and delivered.
- Well Noggin represents and warrants that the App will perform substantially in accordance with the provided documentation.
15. Indemnification. You agree to indemnify, defend, and hold Well Noggin and its affiliates and their respective directors, officers, employees, and contractors harmless from and against any liabilities, damages, or expenses (including without limitation reasonable attorneys’ fees)
arising out of any claim, demand, action, or proceeding initiated by a third party to the extent arising out of or relating to: (a) the alleged or actual breach of any of your covenants, representations, or warranties in this Agreement; (b) Account Administrators;(c) Player Profiles; (d) use of the Service through one of the registered accounts; (e)your or any Account Administrator’s violation of any third-party right, including any intellectual property right or publicity, confidentiality, or other property or privacy right; or (f) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
16. Disclaimer. For purposes of clarity, and without limiting any other terms of this Client Subscription Agreement or the EULA, you acknowledge and agree that the provisions below apply to you and all Subscription Users’ use of the Service.
17. No Medical Liability. WELL NOGGIN DISCLAIMS ALL LIABILITY RELATED TO MEDICAL ADVICE OR SERVICES PROVIDED IN CONNECTION WITH THE SERVICE, AND AS A RESULT OF, OR IN RELATION TO, THE USE OF THE SERVICE. Well Noggin offers cognitive assessments as Games and the SIT through the App and Service and does not, and does not intend to, provide medical or health-related services or advice, nor act in any way as a medical or health-related provider. Well Noggin is not a practitioner and is not a medical organization, hospital, healthcare provider, or employer of medical professionals.
18. No Medical Advice. THIS SERVICE DOES NOT PROVIDE MEDICAL ADVICE. Well Noggin and the Service do not provide medical advice. The App and Services do NOT prevent or predict concussions and are not a substitute for a doctor’s examination or expertise in the event of a possible injury. The App and Services will NOT indicate whether a concussion has occurred. You acknowledge and agree that the Service and all information made available in connection with the Service are licensed solely for informational purposes and that the Service and Results do not constitute medical advice. Results provided through the use of the Service may not be relevant to an individual’s personal situation. A true or complete healthcare assessment of any person requires a medical examination by a person licensed to conduct it, as well as information not obtained from the Service. You acknowledge that the Service is neither to be used in the diagnostic assessment of a specific disease or other conditions, nor in the cure, mitigation, treatment, or prevention of disease, and you agree to seek the advice of qualified medical personnel who is experienced in the diagnosis of any medical condition you may experience. The Service is intended only to provide data that may be used to assist baseline wellness analysis for various cognitive functions; the Service does not replace critical or professional
judgment. Well Noggin does not screen or participate in the selection of any medical practitioner on or in consultation in connection with the Service or interpretation of Results. Your use of the App does not create a patient relationship with Well Noggin, and you assume full risk and responsibility for the use of or reliance on information you obtain from or through the App. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. THE SERVICE IS NOT INTENDED FOR EMERGENCY SITUATIONS. NEVER DISREGARD PROFESSIONAL ADVICE OR DELAY OR FAIL TO SEEK IT BECAUSE OF INFORMATION YOU READ ON OR OBTAIN FROM THE SERVICE.
19. NO WARRANTIES; NO MEDICAL ADVICE; “AS IS.” EXCEPT AS EXPRESSLY SET FORTH IN THE EULA, THE SERVICE AND THE APP ARE PROVIDED “AS IS,” AND YOU AGREE THAT YOUR USE AND YOUR AUTHORIZED ACCOUNT USERS’ USE OF THE SERVICE, THE APP, THE ASSESSMENTS AND ANY RESULTS ARE AT YOUR SOLE RISK AND THAT WELL NOGGIN, THE APP, AND THE SERVICE DO NOT PROVIDE ANY MEDICAL ADVICE. IF YOU THINK YOU OR ONE OF YOUR USERS MAY HAVE EXPERIENCED AN INJURY, SEEK PROFESSIONAL MEDICAL HELP IMMEDIATELY. EXCEPT AS EXPRESSLY SET FORTH IN THE EULA AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WELL NOGGIN DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. PLEASE SEE THE EULA FOR OTHER IMPORTANT DISCLAIMERS AND LIMITATIONS OF LIABILITY, WHICH ARE INCORPORATED HEREIN BY REFERENCE.
20. Limitation of Liability. EXCEPT FOR CLAIMS ARISING UNDER A PARTY’S OBLIGATIONS OF CONFIDENTIALITY OR INDEMNIFICATION UNDER THIS AGREEMENT OR FOR CLAIMS OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY’S AGGREGATE LIABILITY WILL EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND ARISING FROM CUSTOMER’S USE OF THE APP OR THE SERVICE.
21. Notice. Any notice shall be delivered by registered or certified mail and addressed to the other Party at the address given on the signature block of this Agreement, or to another address which may subsequently be specified in writing by a Party. Notices shall be effective two days after their dispatch.
22. Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party, which will not be unreasonably withheld, but may be assigned without the other Party’s consent to (i) a parent or subsidiary; (ii) an acquirer of all or substantially all of the Party’s assets or equity or (iii) a successor by merger. Any purported assignment in violation of this section will be void.
23. General. This Agreement will be governed by laws of the Commonwealth of Kentucky without regard to the choice or conflicts of law provisions of any jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Service shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Kentucky in each case located in Louisville, Kentucky. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. At our sole discretion, we may require you to submit any disputes arising from the use of this Agreement or the Services or the App, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Kentucky law. If any provision of these terms and conditions is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision will be construed to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and Well Noggin as a result of this Agreement. The failure of either Party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by the other Party in writing. This Agreement comprises the entire agreement between Customer and Well Noggin and supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between the Parties regarding the subject matter contained herein. You hereby grant Well Noggin the right to use your name, trademarks, and logos in connection with customer references on the Services and in the App, in customer lists, in presentations, in promotional and marketing materials, or in any other similar manner. You agree not to use any Well Noggin logos, graphics, or trademarks without Well Noggin’s express written consent.
24. Order of Precedence. To the extent of any conflict or inconsistency between this Agreement, the End User License Agreement, or other online terms and conditions presented by Well Noggin to Customer, this Agreement will control.
25. Electronic Signatures and Communications. The Parties agree that electronic signatures, whether digital or encrypted, by a Party’s authorized signatory are intended to authenticate such signatures.
End User License Agreement
This End User License Agreement (“Agreement”), together with any affiliated or applicable Client Subscription Agreement between either you (“End User,” “you,” “your”) or the organization you are associated with and Well Noggin, LLC (“Company,” “we,” “our,” “us”), is a binding Agreement between you and us, and governs your access and use of our Services. This Agreement is made subject to the Client Subscription Agreement it is and you are affiliated with, hereby incorporated by reference. This Agreement governs your use of the Safe Brain mobile application and web services (including all related documentation, the “Service”). In the event of a conflict between this Agreement and the Client Subscription Agreement it is and you are affiliated with, the Client Subscription Agreement shall control.
READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY CLICKING “I ACCEPT,” REGISTERING FOR AN ACCOUNT, DOWNLOADING OR USING OUR APP, OR OTHERWISE ACCESSING OR USING THE SERVICE YOU (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER OR HAVE A PARENT OR LEGAL GUARDIAN’S CONSENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS (OR YOUR LEGAL GUARDIAN DOES, IF APPLICABLE). IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT USE THE SERVICE AND DELETE IT FROM YOUR MOBILE DEVICE.
1. License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive, and nontransferable license to:
(a) download, install, and use the Service for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you (“Mobile Device”)* strictly in accordance with the Service’s documentation; and
(b) access, stream, download, and use the Service on such Mobile Device.
* Note: the Service is designed to work on a mobile smart phone. If any other type of Mobile Device is used, the Service may not operate correctly, and Well Noggin makes no guarantees or
warranty as to such use.
2. Conduct. Except as may be expressly permitted by applicable law or expressly authorized by the Service, you shall not:
- (a) copy the Service or any part of it, except as expressly permitted by this license;
- (b) modify, translate, adapt, or otherwise create derivative works or improvements,
whether or not patentable, of the Service;
(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Service or any part thereof;
(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Service, including any copy thereof;
(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service, or any features or functionality of the Service, to any third party for any reason, including by making the Service available on a network where it is capable of being accessed by more than one device at any time;
(f) use any robot, spider, bot, or other automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the material on the Service;
(g) use any manual or automated process to monitor or copy any of the material on the Service, or for any other purpose not expressly authorized in this Agreement, without Company’s prior written consent;
(h) frame, mirror, or otherwise incorporate the Service or any portion of the Service as part of any other mobile application, website, or service;
(i) use the Service in any manner that could disable, overburden, damage, or impair the Service or interfere with any other party’s use of the Service; or
(j) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Service.
3. Well Noggin Services.
(a) Defined Terms. As used in this Agreement, “Player Profile” means an end user linked to a registered account of the Service who (i) has the ability to play interactive digital games (the “Games”) and be administered the Sign Inventory Tool neurological assessment (the “SIT”), (ii) has had a fee paid by an Account Administrator or an Organization, and (iii) has agreed to, or whose legal guardian or representative has agreed to, this EULA - a Player Profile must only be used by one natural person and cannot be shared or transferred; “Account Administrator” means an end user of the Service who (i) registers an account and (ii) can view Game play and SIT result information that is added to the Service by a Player Profile(s) or by such Account Administrator (if an Account Administrator is affiliated with an Organization, account registration will be available via an Organization access code) - Account Administrators are considered an “Admin Profile”); “App” means the features Well Noggin makes available on Mobile Devices, as defined in the Client Subscription Agreement affiliated with this EULA,
whether in the form of an installed app or a progressive web app (PWA) or web page, including the Games and the SIT, which are used to establish cognitive baselines and provide objective cognitive criteria, which Customer is being granted access to under this Agreement; All other defined capitalized terms have meanings ascribed to them elsewhere in this Agreement.
(c) Third-Party Services. Some aspects of the Service are enabled or supported through our App. You acknowledge and agree that the availability of these Services and our App may depend on the third party from whom you downloaded the App – e.g., the Apple App Store, Google Play, or such other application store compatible with your wireless device (each, an “App Store”). You further acknowledge and agree: (i) this Agreement is between you and Well Noggin and not with the App Store; (ii) the App Store is not responsible for: (1) the App, Service, or Subscription; (2) any maintenance, support services, and warranty for the App, Service, or Subscription; or (3) addressing any claims relating to the App, Service, or Subscription (e.g., product liability, legal compliance, or intellectual property infringement); (iii) you will pay the fees (if any) charged by the App Store in connection with the App, Service, or Subscription; (iv) to comply with, and that your license to use the App is conditioned upon your compliance with, all applicable App Store terms and conditions; and (v) the App Store (and its subsidiaries) are intended third-party beneficiaries of this Agreement and have the right to enforce them directly against you.
(d) No Medical Liability. WELL NOGGIN DISCLAIMS ALL LIABILITY RELATED TO MEDICAL ADVICE OR SERVICES PROVIDED IN CONNECTION WITH THE SERVICE, AND AS A RESULT OF, OR IN RELATION TO, THE USE OF THE SERVICE. Well Noggin offers cognitive assessments as Games and the SIT through the App and Service and does not, and does not intend to, provide medical or health-related services or advice, nor act in any way as a medical or health-related provider. Well Noggin is not a practitioner and is not a medical organization, hospital, healthcare provider, or employer of medical professionals.
(e) No Medical Advice. THIS SERVICE DOES NOT PROVIDE MEDICAL ADVICE. Well Noggin and the Service do not provide medical advice. The App and Services do NOT prevent or predict concussions and are not a substitute for a doctor’s examination or expertise in the event of a possible injury. The App and Services will NOT indicate whether a concussion has occurred. You acknowledge and agree that the Service and all information made available in connection with the Service are licensed solely for informational purposes and that the Service and Results do not constitute medical advice. Results provided through the use of the Service may not be relevant to an individual’s personal situation. A true or complete healthcare assessment of any person requires a medical examination by a person licensed to conduct it, as well as information not obtained from the Service. You acknowledge that the Service is neither to be used in the diagnosis of disease or other conditions, nor in the cure, mitigation, treatment, or prevention of disease, and you agree to seek the advice of qualified medical personnel who is experienced in the diagnosis of any medical condition you may experience. The Service is intended only to provide data that may be used to assist baseline wellness analysis for various cognitive functions; the Service does not replace critical or professional judgment. Well Noggin does not screen or participate in the selection of any medical practitioner on or in consultation in connection with the Service or interpretation of Results. Your use of the App does not create a patient relationship with Well Noggin, and you assume full risk and responsibility for the use of or reliance on information you obtain from or through the App. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. THE SERVICE IS NOT INTENDED FOR EMERGENCY SITUATIONS. NEVER DISREGARD PROFESSIONAL ADVICE OR DELAY OR FAIL TO SEEK IT BECAUSE OF INFORMATION YOU READ ON OR OBTAIN FROM THE SERVICE.
(f) Relationship of the Parties. Neither this Agreement, nor performance of the Service, nor a practitioner’s performance will create an association, partnership, joint venture, or relationship of principal and agent, or employer and employee, between you and Well Noggin or any third party and Well Noggin.
(h) Payment. Access to the Service, or certain features of the Service, may require you to pay fees and/or enter into a Client Subscription Agreement with Well Noggin. In certain circumstances, a third-party may pay fees on your behalf by purchasing a subscription to the Service and/or providing an Organization Code for your account. Your access to the Service may terminate upon expiration or termination of any Client Subscription Agreement that is applicable to your account.
4. Eligibility. All Player Profiles on the App must be linked to a valid Account Administrator. Player Profiles for users under the age of 18 must have a parent or legal guardian of the user linked as an Account Administrator, unless consent to the user’s use of the App is otherwise communicated to us in writing by such user’s parent or legal guardian. Account Administrators must be at least 18 years of age to register. By agreeing to this Agreement, you represent and warrant to us: (a) that you either (i) are at least 18 years of age or (ii) have communicated a parent or legal guardian’s consent to us in writing; (b) that you have not previously been suspended or removed from the Service; and (c) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. You hereby understand and agree that individuals under the age of 13 may not create or register a Player Profile on the Service, and that individuals under the age of 13 may only access the Service with the consent of a parent or legal guardian, which consent must authorize the creation of a Player Profile on behalf of the individual under the age of 13. You will not permit or encourage any individual under the age of 13 to create or register an account or profile on the Service or enter any personal information into the Service in connection with your account.
5. Reservation of Rights. You acknowledge and agree that the Service is provided under license, and not sold, to you. You do not acquire any ownership interest in the Service under this Agreement, or any other rights thereto other than to use the Service in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company reserves and shall retain its entire right, title, and interest in and to the Service, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
6. Collection and Use of Your Information. You acknowledge that when you download, install, or use the Service, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Service. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Service or certain of its features or functionality, and the Service may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Service is
7. Geographic Restrictions. The Services are based in the United States and provided for access and use only by persons located and resident in the United States. You acknowledge that you may not be able to access all or some of the Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you are responsible for compliance with local laws.
8. Updates. Company may from time to time in its sole discretion develop and provide Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet, either:
- (a) the Service will automatically download and install all available Updates; or
- (b) you may receive notice of or be prompted to download and install available
You shall promptly download and install all Updates and acknowledge and agree that the Service or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Service and be subject to all terms and conditions of this Agreement.
9. Access; Fees; Upgraded Access. Only Player Profiles shall have access to play the Games and to be administered the SIT. Account Administrators shall have access to the Results of the linked Player Profiles, but shall not have access to play the Games and to be administered the SIT without upgrading their Admin Profile status by paying all applicable fees through the App.
10. Third-Party Materials. The Service may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company
does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.
11. Access to the App; Third Party Fees. Well Noggin does not provide you with the equipment to use the App. You are responsible for all fees charged by third parties to access and use the App (e.g., data charges by carriers). Without limiting the foregoing, you are solely responsible for payment of all applicable fees associated with any carrier service plan you use in connection with your use of the Service (such as data, SMS, MMS, roaming, and other applicable fees charged by the carrier). Accordingly, you should use care in selecting a service plan offered by your carrier.
12. Special Terms Regarding Apple. If you download software from Apple, Inc.’s App Store, your use of the software must at all times be in accordance with the Usage Rules set forth in the Apple, Inc. App Store Terms of Service, and you acknowledge that this Agreement is between you and Well Noggin only, not with Apple. Apple is not responsible for the Service and the content thereof. This Agreement is not intended to provide for usage rules for software that are less restrictive than the Usage Rules set forth for “Licensed Applications” in, or that otherwise conflict with, the App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (a) product liability claims; (b) maintenance and support; (c) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (d) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the Service. Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting”
country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
13. User Data. Well Noggin does not own any User Data. “User Data” means any data, information, or material provided by the End User to Well Noggin. User Data is an End User’s proprietary and confidential information and will not be accessed, used, or disclosed by Well Noggin except for the limited purpose of supporting the End User’s use of the App. Account Administrators and authorized Player Profiles have the sole responsibility for the accuracy, legality, reliability, and intellectual property ownership to use the User Data. By sharing the User Data with us through the App, or by authorizing a third-party to share the information with us, you represent and warrant that you have the legal right to share the User Data with us, to cause such information to be shared with us, and/or have obtained all necessary legal consents to share (or authorize the sharing) of such information with us. You grant Well Noggin a world-wide, perpetual, non-exclusive, royalty-free, sub-licensable, transferable license to use and prepare derivative works from the User Data for the fulfillment of the Services.
14. Term and Termination.
(a) The term of Agreement commences when you download the Service and will continue in effect until terminated by you or Company as set forth in this 14.
(b) You may terminate this Agreement by deleting the Service and all copies thereof from your Mobile Device.
(c) Company may terminate this Agreement at any time without notice, which Company may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.
(d) Upon termination:
- (i) all rights granted to you under this Agreement will also terminate; and
- (ii) you must cease all use of the Service and delete all copies of the Service from
your Mobile Device and account.
(e) Termination will not limit any of Company’s rights or remedies at law or in equity.
15. Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
16. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE SERVICES FOR:
(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, CLAIMS RELATED TO ACCURACY OR MEDICAL MALPRACTICE, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
17. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
18. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Kentucky without giving effect to any choice or
conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Service shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Kentucky in each case located in Louisville, Kentucky. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
19. Arbitration. At Company’s sole discretion, it may require you to submit any disputes arising from the use of this Agreement or the Services or the App, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Kentucky law.
20. No Class Actions. TO THE EXTENT ALLOWED BY LAW, YOU AND WELL NOGGIN COMPANY EACH WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASS-WIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
21. No Trial by Jury. TO THE EXTENT ALLOWED BY LAW, YOU AND WELL NOGGIN COMPANY EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, ARBITRATION, OR OTHER PROCEEDING.
22. Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
24. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
25. Contact Information. The services hereunder are offered by Well Noggin, LLC, located at 5303 Saratoga Estates Circle, Louisville, Kentucky 40299. You may contact us by sending correspondence to the foregoing address or by emailing us at [email protected] . If you are a California resident, you may have this Agreement mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for this Agreement.
26. Notice to California Residents. If you are a California resident, California Civil Code Section 1789.3 allows you to contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210, in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.