Terms of Use

Effective Date: July 1, 2017

Terms of Use

Introduction

Thank you for using BrainTest, a mobile application developed and provided by BrainTest Inc. SEZC (“We”, “Us”, “Company”). These Terms of Use, together with our Privacy Policy, and any other documents they expressly incorporate, set forth the terms and conditions upon which you may access and use the BrainTest mobile application (the “Service”) including any content and functionality offered through the Service. (“Terms of Use” or “Agreement”).

The Service includes the BrainTest test (the “Test”), which is a screening instrument for mild cognitive impairment or early signs of dementia. The Test is a scientifically validated, digital version of the Self-Administered Gerocognitive Examination (SAGE®), which was created by doctors at the Ohio State University. Doctors at Ohio State University completed the validation study of the Test. We strive to ensure that any scientific claims related to the Test are based on current scientific evidence. However by using the Service and taking the Test you acknowledge and understand that future scientific developments and findings may affect the validation of the Test and the claims made in the Service, and that we therefore cannot guarantee the fitness or accuracy of the Test in the future should the underlying science evolve or otherwise change.

Please read these Terms of Use carefully before you start to use the Service. By using the Service, you represent you are at least 13 years of age, further, you accept and agree to be bound and abide by these Terms of Use. If you are not 13 years old or do not want to agree to these Terms of Use, you must not access or use the Service. We reserve the right to change, add or remove portions of these Terms of Use and any documents incorporated herein at any time and at our sole discretion. Your continued use of the Service following the posting of any changes means that you accept and agree to such changes. It is your responsibility to check these Terms of Use periodically for changes.

It is important to understand that the Service does not include the provision of any medical care by us. We are not a licensed medical care provider, and we are not acting in a health care professional capacity. We do not provide any medical, clinical services, and do not diagnose, treat or manage any illness, disease or condition. In particular, the Service is not a diagnostic tool or device. We do not have expertise in diagnosing, examining, or treating medical or psychological conditions of any kind. You should not change your treatment or care plan, medication or therapy based on information you received through the Service without proper consultation with your health care providers. Use of the Service should not replace any treatment or care provided by your health care provider, or regular medical visits with your health care provider. Always seek the advice of your physician or other qualified health care provider regarding the Test results you may obtain from the Service. Information, including your Test scores are offered for informational purposes only and are not a diagnosis of any illness, nor are they a recommendation or endorsement of any drug, device or treatment. Questions regarding your Test scores should be directed to your healthcare provider. Never disregard professional medical advice or delay in seeking it because of something you have read in connection with our Service. Always consult with your healthcare professional if you have any questions or concerns about your health or condition or experience any changes in your condition or health status.

General Terms

License and Limitations. Subject to the terms and conditions of this Agreement, and during the term of this Agreement, We grant you a non-exclusive and non-transferable right to access and use the Service in accordance with the terms of this Agreement, and any documentation made available to you by Us solely for purposes of your personal use of the Service. The Service is enabled by technology, software and certain content delivered electronically. You agree that you will not reverse-engineer, decompile, disassemble, translate, or otherwise attempt to obtain access to the source code of, any aspect of the Services, including any and all technology, software and content. You will not copy, reproduce, alter, create derivative works from, or otherwise modify the Services, including any and all technology, software and content. You will not lease, loan, sublicense, distribute, or otherwise provide others access to or with any aspect of the Service. Other than as expressly set forth in this Agreement, no license or other rights in or to the Service are granted to you, and all such licenses and rights are hereby expressly reserved.

Registration. Although you may be able to download the Service without registering, you will not be able to access or use all parts of the Service. To obtain full access to the Service you are required to register for the Service and provide certain information about yourself. You will provide Us with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of these Terms of Use, which may result in immediate termination of your account. You shall not use a false name, e-mail address or phone number or otherwise enter information with the intent to impersonate another person. All personal information we collect about you in connection with the Service is subject to our Privacy Policy. By using the Service, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

You will receive a user account for your personal use that requires a username and password. You are responsible for all activities that occur under your user account. You shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data you provide Us; (ii) maintain the confidentiality of your password and user account information; (iii) use reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Us promptly of any such unauthorized use; and (iv) comply with all applicable laws in using the Service.

Scoring and Your Score Card. Our core scoring labs of trained professionals will score your Test. Your score results will be delivered to you in the Service in written form and by a custom video from a physician licenced in the USA. We recommend that you share your Test score results with your healthcare provider.

Our core lab will score all Tests on a “first in – first out” basis and while we will make every effort to score your test in an expeditious manner, we make no claims or guarantees about the completion times for scoring your Tests and we shall have no liability to you or any third party, for any delay, for any reason, in delivering your Test score results to you.

We shall strive to maintain a record of all your Test scores, which you can access in the Service at any time prior to termination of this agreement or the cancellation of your account. We shall have no liability to you if you are unable to access your Test scores for any reason, including but not limited to problems with Internet connectivity, your device memory restrictions. We may limit or terminate your access to your Test scores fat any time or any reason in our sole discretion.

Term and Termination. The term of this Agreement will begin upon your successful registration for the Service and will continue indefinitely unless terminated by either party as permitted herein.

We may suspend or terminate your access to the Service if you (a) breach any term of this Agreement, or (b) engage in any conduct that the We determine in our sole discretion may have an adverse effect on Us or our reputation. In addition to termination, We reserve the right to pursue any and all remedies available to us.

Upon termination, or on your cancelling of your account, you may no longer have access to some parts of the Service including, but not limited to, all of your Test score results. We shall determine in our sole discretion which if any parts of the Service you may access prior to, or following the termination of this agreement or the cancellation of your account.

Fees. Fees for the Service are set out in the Service and will be paid by you prior to your access to the full Service including the Test. Your payment shall be made through either the Apple App Store or the Google Play store (collectively the “App Stores”) in accordance with the App Stores terms and conditions.

If you have registered for the Subscription Plan, you must complete one Test within every 6-month period. Failure to complete a Test within a given 6 month period will result in the loss of your ability to take that Test in that 6 month period, and you will not be provided any refund or any form of credit or have any claim against Us for the loss of your ability to take that particular Test.

The “free-trial” option included in the Subscription Plan shall be limited to one (1) free trial per Apple App Store Google Play accounts.

Intellectual Property Ownership. Except for the limited license and use rights expressly granted to you under these Terms of Use during the Term, all title to and the rights in the Service, including any and all technology, software and content, including ownership rights to patents (registrations, renewals, and pending applications), copyrights, trademarks, trade secrets, Our’s or third party hardware, other technology, any derivatives of and all goodwill associated with the foregoing is Our exclusive property and/or third parties.

Confidentiality.  We have constructed the Service to be in full compliance with the Health Insurance Portability and Accountability Act (USA), which sets the standard for protecting sensitive user data. We will use and protect your personal information pursuant to the Health Insurance Portability and Accountability Act and our Privacy Policy.

We are not responsible for and do not control the App Stores in any we.  We have no obligation to review or monitor, and do not make any representations or warranties with respect to the dealings with the App Stores.  You use the App Stores at your own risk.  When you access the App Store, the applicable App Store terms of use and privacy policies shall apply, and they may not be in full compliance with Health Insurance Portability and Accountability Act.  You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any of the App Stores.

Non-Confidential Information. Subject to any applicable terms and conditions set forth in our Privacy Policy, any other communication or material that you send to us through the Service, such as any questions, comments, suggestions or the like, is and will be deemed to be non-confidential and we will have no obligation of any kind with respect to such information. We will be free to use any ideas, concepts, know-how or techniques contained in such communication for any purpose whatsoever, including but not limited to, developing, manufacturing and marketing products.

Other Content. Other than the Test and your score results, other information that may be presented on or through the Service is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. This Service may provide information about health and wellness and certain health conditions. We also may update the content on the Service from time to time, and we make reasonable efforts to maintain current information. However, we cannot guarantee that the content is complete or up-to-date. Nothing in the Service should be construed as providing any kind of medical advice or recommendation, and should not be relied on as the basis for any clinical decision or action. Patients should not use the information contained on the Service for diagnosing a health problem or disease. Medical advice should always be sought from a qualified medical practitioner outside of the Service. We disclaim all liability and responsibility arising from any reliance placed on such materials by you.

Service Access and Changes. We reserve the right, in our sole discretion, at any time to modify, suspend, or discontinue the Service, or any part thereof, with or without notice to you.   You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service or any part thereof.

Not Intended for Users Over 13. The Service is not for use by individual under the age of 13. We will not knowingly collect information or provide Services to anyone under the age of 13.

Communications from Us.  As part of providing the Service, We may send certain communications such as push notifications and/or emails with service announcements and administrative messages.  These communications are considered part of the Service, and by using the Service you agree to accept these communications.

Cookies. Our Service may store one or more cookies (a small text file containing a string of alphanumeric characters) on your mobile device that uniquely identifies your browser. These cookies may store your unique account ID, an API key, your profile information and you’re username, but no other personal information. The Service may use persistent cookies. A persistent cookie remains after you close the Service, and may be used by your device on subsequent visits to the Service. By using the Service you agree to accept the placement of cookies on your device.

Local Storage. Local storage is a data store that is built into modern browsers and applications. The Service may use such local storage as a data cache to store items the Service has recently downloaded from the server in order to enhance performance of the Service.   For example the Service may store your latest Test score results video information in local storage.

Product Claims.  You agree that We alone are responsible for addressing any claims by you or a third party relating to the Service or your possession and/or use of the Service including; (a) product liability claims; (b) any claim that the Service fails to conform to any legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation.

Indemnity. You agree to defend, indemnify, and hold Us, our officers, directors, partners, employees, contractors, agents, licensors, and suppliers, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your use of the Service.

Release. You hereby irrevocably and unconditionally release and forever discharge Us, our officers, directors, employees, agents and suppliers from any and all claims, demands, and rights of action, whether now known or unknown, which relate to any interactions with, or act or omission of the Service.  IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING.  THAT CODE SECTION STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

DISCLAIMER. BRAINTEST INC. SEZC IS NOT A MEDICAL ORGANIZATION. YOU SHOULD NOT CONSIDER THE SERVICE OR ANY CONTENT, INFORMATION AND DOCUMENTATION PROVIDED WITHIN THE SERVICE AS MEDICAL ADVICE OF ANY KIND. THE SERVICE IS NOT INTENDED TO DIAGNOSE OR TREAT ANY ILLNESS, DISEASE, OR ADVERSE MEDICAL CONDITION OR MANAGE A CHRONIC DISEASE OR CONDITION. By using the Service, you expressly agree that use of the Service is at your sole risk. The Service is provided on an “AS IS” and “as available” basis. Neither We nor our officers, directors, managers, members, employees, agents, third-party content providers, designers, contractors, distributors, merchants, sponsors, licensors or the like (collectively, “Affiliates”) warrant that use of the Service will be uninterrupted or error-free. Neither We nor our Affiliates warrant the accuracy, integrity or completeness of the content provided on the Service or the products or services offered for sale on the Service. We and our Affiliates specifically disclaim all warranties, whether expressed or implied, including but not limited to warranties of title, merchantability or fitness for a particular purpose. No oral advice or written information given by Us or our Affiliates will create a warranty. Some states in the USA do not allow the exclusion or limitation of certain warranties, so the above limitation or exclusion may not apply to you.

The Test score result videos presented to you in the Service contain information provided by American board certified doctors (the “Doctors”). BY USING THIS SERVICE, YOU FULLY ACKNOWLEDGE AND AGREE THAT you are in no way entering into a commercial, medical or any other relationship of any kind with any of the Doctors. The Doctors are retained by us and the videos the Doctors appear in are for the sole purposes of explaining the Test score results, and shall not be considered as any form of medical advice that is specific to you in any way. You acknowledge and agree that the Doctors are not giving you any medical advice, they are not diagnosing you, treating any disease, illness or condition you may have, or acting for you in any way. You explicitly acknowledge that the information you receive from Us which may be received by you in video, written, audio or any other format, is intended to be generic information and not specific to you in any way.

You hereby explicitly waive any claim or cause of action of any kind that you may have for any reason, against any of the Doctors. You hereby waive all rights you may have to bring any legal action of any kind, for any reason, against any of the Doctors.

Limitation of Liability. IN NO EVENT SHALL WE, OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR ANY OF THE DOCOTRS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFIT OR ANY OTHER DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM THIS TERMS OF USE, THE SERVICE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION IS APPLICABLE TO LOSSES INCLUDING DAMAGES RESULTING FROM (A) ERRORS, MISTAKES, NEGLIGENCE OR INACCURACIES IN THE SERVICE AND ANY CONTENT, (B) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVERS, (E) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN THE SERVICE AND ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THE SERVICE AND ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.  THESE LIMITATIONS APPLY WHETHER THE CLAIM IS BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY.

ACCESS TO, AND USE OF, THE SERVICE ARE AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA RESULTING THEREFROM.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.  YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

If, notwithstanding the other provisions of these Terms of Use, we are found to be liable to you for any damage or loss which arises out of or is in any way connected with your use of the Service, OUR AND OUR AFFILIATE’S liability will in no event exceed the amount of fees you paid during the preceding 12 month period. Some jurisdictions do not allow limitations of liability, so the foregoing limitation may not apply to you.

Void Where Prohibited.  The Service may not be available to all persons or in all geographic locations. We make no representations that the Service is appropriate or available for use in your location.  Those who access or use the Service do so at their own volition and are responsible for compliance with local laws.

Governing Law. The laws of the State of Ohio, USA, shall govern these Terms of Service without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.  You agree to submit to the personal jurisdiction of the courts located within Columbus, Ohio, USA for the purpose of litigating all such claims or disputes, and you further agree that the Service shall be deemed a passive server whose activities do not give rise to personal jurisdiction over Us, either specific or general, in jurisdictions other than Columbus, Ohio.  Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our intellectual property rights in any court of competent jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms of Service.

Improperly Filed Claims.  All claims you bring against us must be resolved in accordance with the Governing Law section above.  All claims filed or brought contrary to the Governing Law section above or any other applicable section shall be considered improperly filed.  Should you file a claim contrary to the Governing Law Section above, or any other applicable section, We shall be entitled to recover attorneys’ fees and costs up to $2,000.00 USD, provided that we have notified you in writing of the improperly filed claim and you have failed to promptly withdraw that claim.

Waiver of Trial by Jury. EXCEPT WHERE PROHIBITED BY LAW, YOU EXPRESSLY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS OR THE SERVICE.

No Waiver.  Our right to insist on or enforce strict performance of these Terms of Use will not be construed as a waiver by Us of any provision or any right we have to enforce these Terms of Use, nor will any course of conduct between Us and you or any other party be deemed to modify any provision of these Terms of Use.

Severability. The provisions of these Terms of Use are severable. The invalidity, in whole or in part, of any provision of these Terms of Use will not affect the validity or enforceability of any other of its provisions. If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions will be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use will remain in full force and effect.

Entire Agreement/General. These Terms of Use together with our Privacy Policy, and any other documents they expressly incorporate, are the final, complete and exclusive agreement between you and Us with respect to the subject matters hereof and supersedes and merges all prior discussions and agreements between you and Us with respect to such subject matters (including any prior Terms of Service or Privacy Policies). The word “including” means “including without limitation”.  Neither you nor Us are an agent or partner of the other.  These Terms of Use, and your rights and obligations herein, may not be assigned by you without our prior written consent, and any attempted assignment in violation of the foregoing will be null and void.  We may assign these Terms of Use to any of our affiliates or in connection with a merger, acquisition, reorganization or sale of all or substantially all of our assets, or other operation of law, without your knowledge or consent.  These Terms of Use shall be binding upon assignees.  The Terms of Use do not confer any third party beneficiary rights.

Records Retention. Your account details including name, phone number, email, password will be stored in the United States or other countries as we may determine in our sole discretion, the actual locations and length of time of storage are to be determined at our sole discretion.

Force Majeure.  We shall not be liable for any delay or failure to perform resulting from causes outside our reasonable control, including any failure to perform hereunder due to unforeseen circumstances or causes beyond our control including acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labour or materials.

Third Party Beneficiary – Download From Apple Inc.’s App Store.  If You obtained the Service via a download from Apple Inc.’s app store then you and Us acknowledge and agree that Apple Inc., and Apple Inc.’s subsidiaries, are third party beneficiaries of these Terms of Use, and that, upon your acceptance of these Terms of Use, Apple Inc. will have the right (and will be deemed to have accepted the right) to enforce the Terms of Use against you as a third party beneficiary thereof.

July 1, 2017 BrainTest Inc. SEZC | all rights reserved