End User License Agreement

Last updated October 31, 2016

Welcome and thank you for your interest in HHITT, Inc. (“HHITT”).  The following End User License Agreement (“EULA”), together with any applicable Subscription Agreement between you and HHITT, governs your access and use of HHITT’s services, software, and products, including without limitation HHITT’s Hitcheck concussion testing applications for mobile devices (the “App”),  and web services made available to you through or in connection with the HHITT website located at http://www.hitcheck.com, including without limitation all sub-domains thereof (collectively, the “Site”) (collectively, the “Service”).  If you are entering into these Terms on behalf of an organization, company, business organization, commercial enterprise, non-for profit organization or other entity, including without limitation any sports league or team (collectively, “Organization”) you represent that you have the authority to bind such Organization to these Terms and references to “you” and “your” refer to the Organization using the Service, you in your individual capacity, and any other users using the service on behalf of such Organization

PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY.  BY CLICKING “I ACCEPT,” REGISTERING FOR AN ACCOUNT, DOWNLOADING OR USING OUR APP, OR BY OTHERWISE ACCESSING OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF THIS EULA, INCLUDING THE HHITT PRIVACY POLICY (COLLECTIVELY, THE “TERMS”).  If you are not eligible, or do not agree to these Terms, then please do not use the Service.

You acknowledge and agree that, as provided in greater detail in these Terms:

  • the App is licensed, not sold to you, and you may use the Service only as set forth in these Terms and any applicable Subscription Agreement between you and HHITT;
  • your use of the Service may be subject to separate third party terms of service and fees, including without limitation the terms of service and data, SMS, MMS, and other fees of your mobile network operator (the “Carrier”), which are your sole responsibility;
  • the Service is provided “as is” without warranties of any kind and HHITT’s liability to you is limited;
  • access to certain features of the Service may require access to information about the location of your device, such as GPS coordinates; and,
  • if you are using the App on an iOS-based device, you agree to and acknowledge the “Notice Regarding Apple”, below.
  1. HHITT Services.

  1. Defined Terms.  As used in these Terms, “Registered User” means any end user that creates an account on the Service.  Registered Users include all Administrative Users.  As used in these Terms, “Administrative User” means any Registered User that is granted administrative access and permission to view account and/or Result information for other Registered Users via an administrative access code.  Administrative Users may include coaches, league organizers, and medical professionals.  All other defined capitalized terms have meanings ascribed to them elsewhere in these Terms.

  2. Use of the App.  The App may provide Registered Users with a neurocognitive (concussion) tool compromised of interactive tests which may cover short term memory, balance, coordination, visual memory, impulse control, long term memory, reaction time, problem solving and color recognition (together, the “Assessment Tool”).  Registered Users may also be given access to a baseline test and tests which are intended to be taken post-injury (collectively with the Assessment Tool, the “Tests”), which may be administered through a smartphone or tablet.  Each individual that uses the Service should take the baseline test before the start of the applicable sports season and before any contact occurs, such as in practices, scrimmages, games, etc. After submission, the outcome and data collected through the Tests (the “Results”) may be made available to be viewed and analyzed by Administrative Users of the Service, as further described in our Privacy Policy.

  1. No Medical Advice.  HHITT does not provide medical advice.  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 for an individual’s personal situation.  A true or complete healthcare assessment of any person requires a medical examination by a person licensed to do so, as well as information not obtained from the Service.  You acknowledge that the product is only one component of a concussion diagnosis and management protocol, and you agree to seek the advice of qualified medical personnel who is experienced in the diagnosis and management of concussions to determine if the Test is suitable for use in connection with any potential injury and to interpret any Results.  The product is intended to only to provide data that may be used to assist in the diagnostic (and any return to play) decision after a head injury; the product does not replace critical judgment.  HHITT does not screen or participate in the selection of any medical practitioner on the Service.  In addition, we do not recommend or endorse any practitioners or health-related products, items, or services.  It is your responsibility to select the appropriate medical professional and add them as an Administrative User on the App or otherwise provide them with access to the Results.  Your use of the App does not create a patient relationship with HHITT, 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 IN SEEKING IT BECAUSE OF INFORMATION YOU READ ON THE SERVICE.

  2. Not a Medical Device.  The Service is not a medical device.  The Service does NOT prevent or predict concussions, and is not a substitute for a doctor’s examination or expertise in the event of a possible injury.  The Service will NOT indicate whether a concussion has occurred.  Head contact in any sport may result in concussion or a brain injury.  Symptoms include, without limitation: loss of consciousness or memory, dizziness, headache, nausea or confusion.  If anyone has these symptoms, regardless of the Results, you should seek medical advice immediately.  Anyone with a potential brain injury should not return to contact sports without clearance from a medical professional.

  3. Disclaimer.  Without limiting Sections 14 and 15 of this EULA, HHITT 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.  HHITT offers Tests and does not, and does not intend to, provide medical or health-related services, advice, or act in any way as a medical or health-related provider.  HHITT is not a practitioner and is not a medical organization, hospital, healthcare provider, or employer of medical professionals.

  4. Relationship of the Parties.  Neither these Terms, 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 HHITT or any medical practitioner and HHITT.

  1. HHITT Is Not Required to Comply with HIPAA.  HHITT is NOT providing you with “covered health services” as such term is defined in the Health Insurance Portability and Accountability Act (“HIPAA”).  Any information that you provide to us through the Service will NOT be deemed in any way “protected health information,” and as such, HHITT will NOT be obligated to handle that information in the manner required by HIPAA.  You acknowledge and agree that you will never assert against HHITT any claims arising under HIPAA.  You may read our Privacy Policy to understand how we collect, use, disclose, and protect information you post to the Service.

  1. Payment.  Access to the Service, or certain features of the Service, may require you to pay fees and/or enter into a Subscription Agreement with HHITT.  In certain circumstances, a third party may pay fees on your behalf by purchasing a subscription to the Service and/or providing an access code for your account.  Your access to the Service may terminate upon expiration or termination of any Subscription Agreement that is applicable to your account.  

  1. Eligibility.  You must be at least thirteen (13) years of age to register as a Registered User on the App.  By agreeing to these Terms, you represent and warrant to us: (i) that you are at least thirteen (13) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) 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 thirteen may not create an account as a Registered User on the Service and that individuals under the age of thirteen may only access the Tests with the consent of a parental or legal guardian.  You will not permit or encourage any individual under the age of thirteen to create a personal account or profile on the Service or enter any personal information into the Service, in connection with your account.

  2. Privacy Policy; Additional Terms

  1. Privacy Policy.  Please read the HHITT Privacy Policy carefully for information relating to our collection, use, storage and disclosure of your personal information.  Subject to periodic updates, the HHITT Privacy Policy is hereby incorporated by reference into, and made a part of, these Terms.

  2. Additional Terms.  Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service, subject to Section 11 below.  All Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.

  1. Accounts and Registration.  To access some features of the Service, you must register for an account.  When you register for an account, you may be required to provide us with some information about yourself (such as your e-mail address, age or other contact information).  You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times.  When you register, you will be asked to provide a password.  You are solely responsible for maintaining the confidentiality of your account and password.  You agree to accept responsibility for all activities that occur under your account, and for any individual that enters information, uses the Tests, or obtains Results through your account.  If you have reason to believe that your account is no longer secure, then you must immediately notify us at support@hitcheck.com.

  1. App Terms.  The terms of this Section 5 govern your acquisition and/or use of our App.

  1. Third Party Accounts.  In order to download the App, you may be required by the third party who is distributing or providing you access to the App, such as Apple, Inc. or Google, Inc. (each, a “Distributor”) to create an account.  You are solely responsible for maintaining the security of any logins, passwords, or other credentials that you select or that are provided to you to access your account with any Distributor.  Your use of any account with a Distributor is subject to any terms, conditions, and policies, including privacy policies, of that Distributor.  HHITT is not responsible for any act or omission of any Distributor.

  2. License to the App.  Subject to your complete and ongoing compliance with all the terms and conditions set forth in these Terms (including, without limitation, payment of any applicable fees and compliance with all license restrictions), HHITT grants you: (1) a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to one copy of the App downloaded directly from HHITT or from a legitimate marketplace (such as Apple’s iTunes store or Google’s Google Play), solely in object code format and solely for your personal use for lawful purposes, on a single compatible device that you own or control; and (2) permission to access and use the Service, only for your personal, informational use, and solely through the use of a licensed copy of the App or the Site.  If a third party has purchased a subscription for your access to the Service, you acknowledge and agree that your right to use the Service, including the App, may terminate upon expiration or termination of such subscription.  You may not reproduce, distribute, publicly display, or publicly perform the App or any part of the Service.  Except if, and solely to the extent that, such a restriction is impermissible under applicable law, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the App, or make or attempt to make any modification to or derivative work of the App; or (b) interfere with or circumvent any feature of the App, including without limitation any security or access control mechanism.  You may not use the App or the Service for any purpose other than a purpose for which the App and the Service are expressly designed.  The term App, as used herein, includes any update or modification to the App made available to you by HHITT (unless provided with separate terms).  If you are prohibited under applicable law from using the App or the Service, you may not use them.

  3. Access to the App; Third Party Fees.  HHITT 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., charges by Carriers).  Without limiting the foregoing, you are solely responsible for the 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.

  4. 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 these Terms are between you and HHITT 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: (i) product liability claims; (ii) maintenance and support; (iii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iv) 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 these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms.  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.

  1. User Content

  1. User Content Generally.  Certain features of the Service may permit Registered Users to submit a variety of content, including Results, messages, photos, images, video, data, text, documents, and other types of works, including the submission of corrections, modifications, additions, or enhancements to other content already available through the Service (collectively, “User Content”) and to publish User Content on the Service.  As between HHITT and you, you retain ownership of all copyright and any other proprietary rights that you may hold in the User Content that you post to the Service, and you do not transfer ownership of any of your intellectual property rights in your User Content to HHITT.

  2. Information Submitted to the App.  These Terms and the Privacy Policy apply to all User Content in the App.  You acknowledge and agree that the information you submit to and through the Service, including your health-related information, may be accessed or viewed by other Registered Users in accordance with the Privacy Policy, such as medical practitioners and any entity that purchases the Services.

  3. Information about Others.  You promise to keep all information provided to you through the Service, including personal information provided by other Registered Users, as private and confidential and will not give such information to anyone without the permission of the person who provided it to you.

  4. Recordkeeping.  The Service may store information related to individuals, practitioners, Results and communications.  However, you acknowledge and agree that the Service is not a data source of record that meets regulatory recordkeeping requirements.  You are solely responsible for making and maintaining backup copies of information submitted to the Service.  HHITT will have no liability whatsoever to you arising out of or in connection with any loss, compromise, or corruption of any data you may submit, receive, transmit, or store through the Service.  Once you terminate your account, you will no longer have access to retrieve or obtain any of your User Content.

  5. Limited License Grant to HHITT.  By submitting User Content to the Service, you grant HHITT a worldwide, non-exclusive, royalty-free, fully paid up, perpetual, irrevocable, transferable right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels (now known or hereafter developed) in connection with the operation, support and promotion of the Service (as it may be modified from time to time) to you and other end users.  Any such use of your User Content by HHITT will be without any compensation paid to you.  In accordance with our Privacy Policy, HHITT may now or in the future provide features on the Service that allow you to configure certain controls or limitations with respect to if and how other Registered Users may access particular User Content.  Notwithstanding, such features are not foolproof or immune from being compromised, hacked, misused, or otherwise bypassed, and HHITT does not and cannot guarantee that your User Content will not be accessed in ways other than you intended.

  6. User Content Representations and Warranties.  You are solely responsible for your User Content and the consequences of posting or publishing User Content.  By submitting, posting, publishing, or sharing User Content, you affirm, represent, warrant, and covenant that:

  • you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions to submit, post, publish, and share such User Content with HHITT and others, and to authorize HHITT and Registered Users and licensees of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 6 and in the manner contemplated by these Terms;
  • your User Content, and the use thereof as contemplated herein, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; or (ii) slander, defame, or libel any third-party; and
  • your User Content is accurate and up to date, is not fraudulent, misleading, unlawful, inappropriate, or obscene, and does not violate any law or regulation, or constitute false advertising or any other unfair business practice.
  1. User Content Disclaimer.  HHITT is under no obligation to edit or control User Content that you or other Registered Users post or publish, and will not be in any way responsible or liable for User Content.  HHITT may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable.  You understand that when using the Service you may be exposed to User Content and a variety of other data and information from a variety of third party sources and acknowledge that such User Content, data, and information may be inaccurate, offensive, indecent, inappropriate, or objectionable.  You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against HHITT with respect to such User Content, data, or information, and we expressly disclaim any and all liability in connection with such User Content, data, or information.  If notified by a Registered User or content owner that User Content does not conform to these Terms, we may investigate the allegation and determine in our sole discretion what course of action to take, which we reserve the right to do at any time and without notice.  For clarity, HHITT does not permit copyright-infringing or other unlawful activities on the Service.

  1. Digital Millennium Copyright Act

  1. DMCA Notification.  We comply with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended).  If you have any complaints with respect to material posted on the Service, you may contact our Designated Agent at the following address:

HHITT, Inc.
Attn: Copyright Agent

420 Mission Bay Blvd N #1401

San Francisco, CA 94158


E-mail: 
copyright@hitcheck.com

Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

  1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;

  2. a description of the copyrighted work or other intellectual property that you claim has been infringed;

  3. a description of the material that you claim is infringing and where it is located on the Service;

  4. your address, telephone number, and email address;

  5. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and

  6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

  1. Repeat Infringers.  HHITT will promptly terminate without notice the accounts of Registered Users that are determined by HHITT to be “repeat infringers.”  A repeat infringer is a Registered User who has been notified of infringing activity more than twice and/or has had User Content removed from the Service more than twice.

  1. Conduct.  BY USING THE SERVICE YOU AGREE:

  1. to comply with, obtain, and maintain any and all consents, authorizations and clearances, including parental permission, which may be necessary for anyone to access the Service through your accounts, and as may be required for HHITT to provide the Service or otherwise collect, use, and/or disclose any and all data submitted through your account, as permitted or required under the HHITT Privacy Policy;

  2. to fully disclose to anyone that accesses the Service through your account that their use of the Service and HHITT’s collection, storage, use, access, display, transfer, and disclosure of data is subject to the HHITT Privacy Policy, and that their information, including their Results may be viewed by Administrative Users, which may include medical professionals;

  3. that you will use information which is stored or accessible to you through the Service for the sole internal purposes of taking Tests and monitoring and managing Results and for no other purpose (such as marketing or advertising);

  1. not to use the Service (including the submission, transmission, modification, addition, or deletion of any User Content or other content available through the Service) for any illegal or improper purpose, or in violation of any local, state, national, or international law, or in a manner that violates any rule, regulation or industry self-regulatory regime, including without limitation applicable laws, rules, regulations, and self-regulatory requirements relating to privacy or data protection, or for any purpose other than your personal, non-commercial purposes;

  2. not to violate, or encourage others to violate, the rights of HHITT or third parties, including by infringing or misappropriating any HHITT third party intellectual property rights;

  3. not to post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate or off topic;

  4. not to interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;

  5. not to interfere with the operation of the Service or any Registered User’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) defaming, harassing, abusing, threatening, stalking or defrauding others (iii) making unsolicited offers or advertisements to other Registered Users of the Service, (iv) attempting to collect, personal information about Registered Users or third parties without their consent; or (v) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;

  6. not to perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;

  7. not to use web scraping, web harvesting, or web data extraction methods to extract data from the Service;

  8. not to sell or otherwise transfer the access granted herein or any Materials (as defined in Section 12 below) or any right or ability to view, access, or use any Materials;

  1. not to cause nuisance, annoyance, inconvenience, or property damage to any Registered User or any other party (in certain instances, we may require you to provide proof of identity or credentials to access or use the Service, and you may be denied access or use of the Service if you refuse to provide proof of identity);

  2. not to attempt to do any of the foregoing described in Sections 8.4 through 8.12, or assist or permit any persons in engaging or attempting to engage in any of the activities described in Sections 8.4 through 8.12.

  1. Third-Party Services and Linked Websites.  HHITT may provide tools through the Service that enable you to export information, including User Content, to third party services, including through features that allow you to link your account on HHITT with an account on a third party service.  By using these tools, you agree that we may transfer such information to the applicable third-party service.  Such third party services are not under our control, and we are not responsible for their use of your exported information.  The Service may also contain links to third-party websites.  Such linked websites are not under our control, and we are not responsible for their content.

  1. Termination of Use; Discontinuation and Modification of the Service.  If you violate any provision of these Terms, your permission to use the Service will terminate automatically.  Additionally, HHITT, in its sole discretion may terminate your account on the Service or suspend or terminate your access to the Service at any time, with or without notice, including without limitation as described in Section 1.8.  We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you.  We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.  You may terminate your account at any time by contacting customer service at support@hitcheck.com.

  1. Changes to the Terms.  We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time.  Please check these Terms periodically for changes.  In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change.  We may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used to register for an account, or through other mechanisms.  Generally, modifications to the Terms are effective upon publication, provided that if the changed Terms materially modify your rights or obligations, HHITT may require you to provide consent by accepting the changed Agreement.  If HHITT requires your acceptance of the changed Agreement, changes are effective only after your acceptance.  If you do not accept the changed Agreement, HHITT may terminate your access to and use of the Service.  All other changes are effective upon publication of the changed Agreement.  Disputes arising under this Agreement will be resolved in accordance with the version of the Agreement in effect at the time the dispute arose.

  1. Ownership; Proprietary Rights.  The Service is owned and operated by HHITT.  The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by HHITT are protected by all relevant intellectual property and proprietary rights and applicable laws.  All Materials contained in the Service, as well as raw data and information and statistical and analytical data related to, associated with, or based on individual and aggregate usage and usage trends with respect to the Service, and all intellectual property rights therein and thereto, are the property of HHITT or our third-party licensors.  Except as expressly authorized by HHITT, you may not make use of the Materials, provided that HHITT does not purport to limit your right to use your User Content outside of the Service, and other Registered Users may separately grant you rights to their User Content.  HHITT reserves all rights to the Materials not granted expressly in these Terms.

  2. Indemnity.  You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless HHITT and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “HHITT Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use or misuse of, or alleged use or misuse of the Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your User Content, (v) use of the Service through your account, or (vi) any disputes or issues 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 (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.

  1. Disclaimers; No Warranties

  1. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED.  HHITT SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.  HHITT DOES NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE WILL BE ACCURATE, UP TO DATE, UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

  2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING HHITT OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS.  YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER REGISTERED USERS OR OTHER THIRD PARTIES, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE.  YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT.

  3. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF CERTAIN WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.

  1. Limitation of Liability

  1. IN NO EVENT WILL HHITT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR BUSINESS, CLAIMS RELATED TO DIAGNOSTIC ACCURACY AND/OR MEDICAL MALPRACTICE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE TESTS, RESULTS, SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT HHITT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.

  2. YOU AGREE THAT THE AGGREGATE TOTAL OF ALL LIABILITY OF HHITT TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS, TESTS, RESULTS, OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO, AND SHALL NOT EXCEED THE GREATER OF (A) THE PRODUCT FEES PAID FOR YOUR ACCESS TO THE SERVICE IN ACCORDANCE WITH THIS AGREEMENT OR (B) $100.  YOU ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK FOR YOUR USE OF THE SERVICE.

  3. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.  ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

  4. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES.  THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.  THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  1. Governing Law.  These Terms shall be governed by the laws of the State of California without regard to conflict of law principles.  To the extent that any lawsuit or court proceeding is permitted hereunder, you and HHITT agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California, for the purpose of litigating all such disputes.

  2. General.  These Terms, together with any other agreements expressly incorporated by reference herein, constitute the entire and exclusive understanding and agreement between you and HHITT regarding your use of and access to the Service, and except as expressly permitted above may be amended only by a written agreement signed by authorized representatives of all parties to these Terms.  You may not assign or transfer these Terms or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent.  We may assign these Terms at any time without notice.  The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.  Use of section headers in these Terms is for convenience only and shall not have any impact on the interpretation of particular provisions.  In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.  Upon termination of these Terms, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 1.3 through 1.7, 5 through 8, 10, and 12 through 21.

  3. Consent to Electronic Communications.  By using the Service, you consent to receiving certain electronic communications from us and other Registered Users as further described in our Privacy Policy.  Please read our Privacy Policy to learn more about your choices regarding our electronic communications practices.  You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

  4. Open Source Software.  The App may include open source software or third party software.  Any such software is made available to you under the terms of the applicable licenses, which may be made available to you through an open source notice file or a link on our Site.

  5. Contact Information.  The services hereunder are offered by HHITT, Inc., located at 420 Mission Bay Boulevard N #1401, San Francisco, CA, 94158.  You may contact us by sending correspondence to the foregoing address or by emailing us at support@hitcheck.com.  If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms.

  1. 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.

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