HIGHMARK INNOVATIONS INC. (“HII” / “WE” / “US”) OWNS AND OPERATES THE EQ APP AND THE WEBSITE LOCATED AT HTTPS://WWW.HIGHMARK.TECH/ (TOGETHER, THE “PLATFORM”). THESE TERMS OF USE APPLY TO ALL INDIVIDUALS WHO USE THE PLATFORM, WEBSITE OR THE SERVICES, AS DEFINED BELOW (“USERS”) (INCLUDING ALL OF THE CONTENT ON OR AVAILABLE THROUGH THIS PLATFORM).  

PLEASE READ THESE TERMS OF USE CAREFULLY. BY USING THIS WEBSITE OR PLATFORM YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS OF USE (“TERMS”). IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE PLATFORM, WEBSITE OR ANY CONTENT OR SERVICES.  THESE TERMS OF USE MAY BE AMENDED OR UPDATED BY HII FROM TIME TO TIME WITHOUT NOTICE. THE TERMS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEBSITE, AND IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS OF USE FOR ANY CHANGES.  YOUR USE OF THE PLATFORM, WEBSITE OR SERVICES AFTER ANY AMENDMENTS OR UPDATES OF THESE TERMS OF USE SHALL SIGNIFY YOUR ASSENT TO AND ACCEPTANCE OF SUCH REVISED TERMS.  

IN ORDER TO USE THE WEBSITE, PLATFORM AND SERVICES (DEFINED BELOW), YOU MUST REGISTER FOR THE SERVICES AND PROVIDE CERTAIN PERSONAL INFORMATION. FOR INFORMATION ON HOW WE USE YOUR PERSONAL INFORMATION, PLEASE SEE OUR PRIVACY STATEMENT, THE TERMS OF WHICH FORM AN INTEGRAL PART OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS OF THE PRIVACY STATEMENT DO NOT USE THE HII WEBSITE OR SERVICES

1. SERVICES

HII is the owner of the EQ software-as-a-service platform which provides users with  recommendations based on test results collected by the Platform in connection with a potential concussion event to assist physicians with diagnostics (collectively, the “Services”).

2. REGISTRATION

Users may be required to register for an account to use certain Services (Your “Account”). When You register for the Account, You will be required to provide certain information, which is subject to our Privacy Statement. After You have registered for an Account You can login using the email address you provided for registration. You will also be required to select a password. You are responsible for all activity occurring on Your Account, so please select a strong password.  Please keep Your password secure, and do not share it with any other individual.  We will not be liable for any damages caused by virtue of the compromise of Your Account or password, including any unauthorized access to Your Account or use of Your Account or any information contained therein. Please contact us immediately if You suspect or become aware of any unauthorized use of Your Account or any other breach of security.

3. USER CONTENT

3.1 User Responsibility. All information, data, text, software, sound, images, graphics, messages or other materials, including personal information (“User Content”) transmitted to the Platform by Users is the sole responsibility of Users. This means that the User, and not HII, is entirely responsible for all such material uploaded, transmitted or otherwise made available by using the Platform and Services.  Users are solely responsible for obtaining all necessary consents and making all necessary disclosures required in connection with any and all User content (including consents to collect, use and disclose personal information of customers under applicable privacy laws). By using the Platform and Services, You represent, warrant and covenant that You have obtained all necessary consents to collect any personal information and that You will comply with all applicable laws, including privacy laws. HII does not control User Content uploaded to the Platform and as such, does not guarantee the accuracy, integrity or quality of such content.  Under no circumstances will HII be liable in any way for any User Content, including, but not limited to, any errors or omissions in any materials or for any loss or damage of any kind incurred as a result of the viewing or use of any User Content posted, uploaded, transmitted or otherwise made available on the Platform. 

3.2      User Data (registration) The Platform allows Us to collect information to identify Users, create profiles, and monitor cognitive patterns reports, (the “User Data”). The Platform uniquely identifies Users by the information entered including first name, last name, nickname, date of birth, age, gender, location (country), email address, ethnicity, team or school affiliation, household income, education, and history of medical incidents.  

3.3 User Results Information on concussion and post-concussion syndromes, medical history, treatment plans, and clinical notes are also recorded. This includes information regarding the User’s cognitive reaction time, memory, delayed memory, reverse memory, trailmaking, vestibular balance, and visual eye movement. User Data is only accessible to Us and those people who the specific User (or his or her guardian) have expressly authorized to view or manage the information, such as school administrators, team coaching staff and/or medical care providers.
 

3.4 Analytics Data User acknowledges and agrees that HII compiles and analyzes User Data to create useful, aggregated information about service delivery and performance and accordingly HII requires the right to generate data about the use and operation of the Platform and delivery of the Services, from reports generated pursuant to this Agreement and raw User Data (“Analytics Data”).  User hereby grants HII a perpetual, worldwide, non-exclusive, royalty-free license to create Analytics Data from User Data and combine it in whole or in part with data derived through the use of the Services and with other data at HII’s discretion.  For the avoidance of doubt, Analytics Data will not include any raw User Data, including any personal information or personal health information, and will not be distributed in a manner which identifies User.  HII shall have exclusive ownership of any Analytics Data and the exclusive right to use the same for any purpose without restriction.

3.5 Feedback.  If You provide HII with any suggestions, comments or other feedback (“Feedback”) relating to the website, HII may use such Feedback in the website or in any other HII products or services (collectively, “HII Offerings”). Accordingly, You agree that: (i) HII is not subject to any confidentiality obligations in respect to the Feedback, (ii) the Feedback is not confidential or proprietary information of You or any third party and You have all of the necessary rights to disclose the Feedback to HII, (iii) HII (including all of its successors and assigns and any successors and assigns of any of the HII Offerings) may freely use, reproduce, publicize, license, distribute, and otherwise commercialize Feedback in any HII Offerings, and (iv) You are not entitled to receive any compensation or re-imbursement of any kind from HII or any of the other users of the Website or Platform.


4. PAYMENT

4.1 Fees.  If you purchase a subscription for any Platform Services, You shall pay HII the Subscription Fees as specified to you on the Platform at the time you purchase a subscription or license.  All amounts are payable in the currency specified on the Platform.

4.2 Invoicing and Payment.  HII will invoice You electronically and You agree to accept HII’s invoices in that manner.  Unless otherwise stated an invoice sent to You by HII, all invoiced amounts for the Services are due upon receipt of HII’s invoices for such amounts. If You have enrolled in automatic billing, You shall: (i) keep your billing, credit card and payment information accurate and up to date, otherwise, HII may suspend provision of the Services; (ii) promptly advise HII if billing or credit card information changes due to loss, theft, cancellation or otherwise; (iii) be liable for failure to pay any fees caused by Your failure to provide HII with up to date billing information; and (iv) upon termination of the Services, provide HII with a forwarding address for all final invoices or correspondence if Your mailing address differs from that which You provided in your Account.

4.3 Taxes.  Unless otherwise stated, HII’s prices for the Services do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”).  You are responsible for paying all applicable Taxes associated with purchases pursuant to these Terms, excluding taxes based on HII’s net income or property.  If HII has the legal obligation to pay or collect Taxes for which You are responsible under this Section, the appropriate amount shall be invoiced to and paid by You, unless You provide HII with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.4 Pre-authorized Payment.  By providing a credit card information to HII as part of Your Account registration, You authorize HII to charge Your credit card for all outstanding fees, taxes and charges and outstanding account balances incurred by You in respect to the Services, and this Section 4.4 constitutes HII’s good and sufficient authority for so doing.  If You do not provide notice of non-renewal of the subscription for the Services (of at least 30 days for any monthly subscription and 60 days for any annual subscription), then the relevant fees for the renewal of Your subscription to the Services for a new subscription having the same subscription term will be automatically processed and charged to You in full at the then-current fees for the Services for such renewed term.

4.5 Fee Changes.  HII may change the fees HII charges for the Services at any time in HII’s discretion.  Changes to the fees will be communicated by being posted on the HII website and will become effective at the time of posting, provided, however, any fee changes will not change subscription fees applicable to Your current subscription term, however, such fee changes will be applicable to Your next subscription renewal.  If You do not wish to pay the changed fees, then Your sole recourse is to not renew Your subscription for the Service.  

4.6 Suspension of Service. If Your account is five (5) or more days overdue in the case of a monthly subscription or fifteen (15) or more days overdue in the case of an annual or multi-year subscription, then in addition to any of its other rights or remedies, HII shall have the right to suspend the Services provided to You, without liability to You, until such amounts are paid in full.

5. USER RESPONSIBILITIES AND RESTRICTIONS

You are responsible for all activity occurring on Your Account and for compliance with this Agreement.  Without limiting the generality of the foregoing, You agree that You will not:

  • use the Platform other than as permitted by this Agreement;
  • share Your login information with any individual;
  • use the Platform to send, store, publish, post, upload or otherwise transmit any information in violation of any laws, rules or regulations including those relating to and privacy, or in violation of any of Your warranties, representations or obligations under this Agreement;
  • license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any third party;
  • use the Platform to upload, collect, transmit, store, use or process any patient information or other data: (i) that You do not have the lawful right to copy, transmit, distribute, and display (ii) for which You do not have the consent or permission from the owner of any personal health information and/or any other personal information contained therein; (iii) that is tortious, defamatory, obscene, or offensive; or (iv) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability;
  • use the Platform to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;
  • continue to use the Platform in a manner that interferes with or disrupts the integrity or performance of the Platform following a notice from HII of such use;
  • attempt to gain unauthorized access to the Platform or its related systems or networks;
  • use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Platform;
  • use any data mining, robots or similar data gathering or extraction methods;
  • access the Platform for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Platform; or
  • copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Platform or any part thereof or otherwise attempt to discover any source code or modify the Platform, except as expressly provided for in this Agreement.

HII reserves the right to terminate, limit, or suspend User access to the Platform for any User breach of these restrictions or any other violation of any other term of this Agreement.

6. INTELLECTUAL PROPERTY; LICENSE TO PLATFORM

The Website, Platform, Services and the information and materials contained therein (except for information and material provided by Users of the Services), are the property of HII and its licensors, and are protected from unauthorized copying and dissemination by copyright law, trademark law, and other intellectual property laws.  Subject to these Terms and payment of any applicable fees, we grant You a non-transferable, non-exclusive, license to access and use the Website and Platform for Your internal business purposes use, and not for the use of any other person or individual.  Nothing in the Terms gives you a right to use the brand names, trademarks, logos, domain names, and other distinctive brand features we provide the Services under without our prior written consent.  You shall not attempt to override or circumvent any of the usage rules or restrictions on the Website or Platform.  Any future release, update, or other addition to functionality of the Website, Platform and Services shall be subject to the terms of these Terms.

7. TERM; TERMINATION

7.1 Term. This Agreement will commence on the date it is entered into by You (“Effective Date”) and continue unless and until the Agreement is terminated in accordance herein, unless otherwise terminated through a partner agreement. If You purchase a subscription to the Services, Your subscription term will be indicated on the electronic subscription form on the Platform.

7.2 Termination by HII. HII retains the right to terminate this Agreement and/or Your ability to access the Platform and Services at any time without notice to You if any of the following occur: (i) material breaches or violations of these Terms of Use; (ii) request by law enforcement or other government agencies; (iii) discontinuance or material modification to the Website and/or Platform and Services (or any part thereof); (iv) unexpected technical, security or legal issues or problems, and/or  participation by You, directly or indirectly, in fraudulent or illegal activities (including, but not limited to falsification of Your credentials).
 
7.3 Effect of Termination.  In the event of Termination by either Party, HII reserves the right to delete any information in the User Account that it is not required by law to retain. 

7.4 Outstanding Fees.  Termination, suspension, or expiration of Your Subscription shall not relieve You of the obligation to pay any fees accrued or payable to HII. Upon Termination by HII under Section 7.2Error! Reference source not found., all applicable fees for the remainder of the Term shall become due immediately.

8. IMPORTANT DISCLAIMERS

8.1 Information Disclaimer.  Any information or materials provided by the Website, Platform and Services, including but not limited to recommendations, product regulation, as well as other analytics, are for information purposes only. There is no guarantee that any of the information provided by the Website or Platform will be applicable to You and HII does not make any representations or warranties about the effectiveness of any of the information and materials provided by the Platform or Services. The Services being provided by HII to User and the information on the Platform does not constitute medical advice, diagnosis, or treatment. User agrees to seek the advice of a physician or other qualified health provider with any questions regarding a concussion, medical condition and/or medical symptoms. USER ASSUMES ALL RISKS IN RESPECT TO ITS USE OF THE PLATFORM AND SERVICES.

8.2 Internet Security Disclaimer.  You understand that the transmission of User Content is necessary to use of the Services. Therefore, You expressly consent to HII’s storage of User Content, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by HII. HII is committed to protecting Your privacy and we have safeguards in place that comply with Federal and Provincial laws, rules and regulations relative to storing personal information; however, You acknowledge and understand that User Content may be accessed by unauthorized persons when communicated across the Internet, network communications facilities, or other electronic means. HII is not responsible for any User Content which is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned or operated by HII, including, the Internet and Your local network. You agree that HII is not in any way responsible for any interference with Your use of or access to the Services or security breaches arising from or attributable to the Internet and You waive any and all claims against HII in connection therewith.

8.3 DISCLAIMER OF ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS. THE INFORMATION AND MATERIALS PROVIDED ON THE WEBSITE AND PLATFORM ARE PROVIDED “AS IS.”  SPECIFICALLY, BUT WITHOUT LIMITATION, HII DOES NOT REPRESENT, WARRANT OR OFFER ANY CONDITIONS THAT: (I) THE INFORMATION OR MATERIALS ON THIS WEBSITE ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) PRODUCT RECOMMENDATIONS WILL BE APPROPRIATE AND/OR SAFE FOR CUSTOMERS; (III) THE FUNCTIONS CONTAINED ON THIS WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE; (IV) DEFECTS WILL BE CORRECTED, OR (V) THIS WEBSITE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.  HII SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR MERCHANTABLE QUALITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.  ANY INFORMATION OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR ANY OTHER LOSS THAT RESULTS FROM DOWNLOADING OR USING ANY SUCH MATERIAL.  HII DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE WEBSITE OR IN RESPECT TO ANY WEBSITE THAT CAN BE REACHED FROM A LINK ON THE WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING ON THE WEBSITE, AND HII SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY.

9. LIMITATION OF LIABILITY  

UNDER NO CIRCUMSTANCES SHALL HII BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES THAT RESULT FROM (I) YOUR USE OF OR YOUR INABILITY TO USE, THIS WEBSITE OR ANY OF THE INFORMATION OR MATERIALS CONTAINED ON THIS WEBSITE, (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, DATA, INFORMATION OR SERVICES, (III) ERRORS, MISTAKES, OR INACCURACIES IN THE MATERIALS ON THE WEBSITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF THE WEBSITE, ANY BUGS, VIRUSES, TROJAN HORSES, OR ANY OTHER FILES OR DATA THAT MAY BE HARMFUL TO COMPUTER OR COMMUNICATION EQUIPMENT OR DATA THAT MAY HAVE BEEN TRANSMITTED TO OR THROUGH THE WEBSITE, OR (V) ANY ERRORS OR OMISSIONS IN ANY MATERIAL ON THE WEBSITE OR ANY OTHER LOSS OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO YOUR USE OF THE WEBSITE.  THESE LIMITATIONS SHALL APPLY EVEN IF HII HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, HII’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL OF ANY AMOUNTS PAID BY YOU TO HII IN THE TWO MONTHS PRECEDING THE DATE THAT THE CLAIM WAS FIRST MADE AGAINST HII (IF ANY).  THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

11. 

YOU SHALL INDEMNIFY, DEFEND AND HOLD HII AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, AND EMPLOYEES, HARMLESS FROM ALL CLAIMS, THREATS, ACTIONS, PROCEEDINGS, DEMANDS, DAMAGES, LOSSES, OBLIGATIONS, COSTS, AND EXPENSES INCLUDING REASONABLE ATTORNEYS' FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF MATERIALS SUBMITTED, POSTED, TRANSMITTED OR MADE AVAILABLE BY YOU THROUGH THE WEBSITE, YOUR USE OF THE WEBSITE, ANY VIOLATION BY YOU OF THESE TERMS OF USE, OR ANY VIOLATION BY YOU OF ANY RIGHTS OF ANOTHER (INCLUDING, WITHOUT LIMITATION, ALL INTELLECTUAL PROPERTY RIGHTS AND RIGHTS OF PUBLICITY, PERSONALITY OR PRIVACY), OR ANY VIOLATION BY YOU OF ANY APPLICABLE LAWS, RULES AND REGULATIONS GOVERNING THE COLLECTION, ACCESS, USE, DISCLOSURE AND STORAGE OF PERSONAL INFORMATION AND PERSONAL HEALTH INFORMATION, INCLUDING, WITHOUT LIMITATION, ANY CONSENT REQUIREMENTS THEREIN.

11. THIRD PARTY CONTENT

This Website may contain advertisements and/or links to other websites that are not owned or controlled by HII.  HII is not responsible for the content of any linked websites.  Any third-party websites or services accessed from the Website are subject to the terms and conditions of those websites and or services and You are responsible for determining those terms and conditions and complying with them.  The presence on the website of a link to any non-HII websites does not imply that HII endorses or accepts any responsibility for the content or use of such websites, and You hereby release HII from all liability and/damages that may arise from Your use of such websites or receipt of services from any such websites. 

12. GENERAL

12.1 Enforcement of Terms and Conditions.  If any part of these Terms is unlawful, void, or unenforceable, that part shall be deemed severable and shall not affect the validity and enforceability of the remaining provisions.  The failure of HII to exercise or enforce any right or provision under these terms of use shall not constitute a waiver of such right or provision.  Any waiver of any right or provision by HII must be in writing and shall only apply to the specific instance identified in such writing.  No waiver by HII of any provision of these terms of use shall be deemed to be a further or continuing waiver of such provision or any other provision.  You agree that any cause of action that You may have arising out of or related to this website or Your use of this website must commence within one (1) year after the cause of action accrues, otherwise such cause of action shall be permanently barred.

12.2 Assignment.  You may not assign the Terms, or any rights or licenses granted hereunder, whether voluntarily, by operation of law, or otherwise without HII’s prior written consent. HII may assign the terms of use, or any rights or licenses granted hereunder, at any time without notice.

12.3 Survival.  In addition to Sections 4, 6, 7, 8, 9, 10, 12.1, 12.3, 12.4, and 12.5 all representations, warranties and conditions made by You in these terms of use shall survive the termination of these terms of use.  Unless otherwise explicitly identified as terminating elsewhere in these terms of use, all licenses granted by You in these terms of use shall survive their termination.  All payment obligations incurred by You prior to the termination of these terms of use shall survive their termination.

12.4 Entire Agreement.  These Terms of Use, together with the HII Privacy Statement and any applicable partner agreement, constitutes the entire agreement between the parties relating to the website and all related activities.  These terms of use shall not be modified except in writing signed by both parties or by a new posting of these terms of use issued by HII.

12.5 Export. You acknowledge and agree that the Platform and Services may be subject to export and import controls under the regulations of Canada, the United States and other countries, and you shall comply with all export and import control regulations of such countries.  You shall not use the Platform or Services for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation.  You shall be responsible for procuring all required permissions for any subsequent export, import or use of the Platform or Services.

12.6 Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties hereby irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting in Toronto, Ontario.  

12.7 English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English.  C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais

12.8 Contact.  If You have any questions about these Terms of Use or if You wish to make any complaint or claim with respect to the Website, Platform or Services please contact us at Contact@highmark.tech.


Last Updated: March 29, 2018