Sports Concussion Australasia™ Pty Ltd (ABN 93 155 451 317) trading as the HeadSmart™ Sports Concussion Programme (“HeadSmart™”) provides a community based sports concussion programme (“Programme”) which incorporates the information and services it provides via the website at www.headsmart.me and via smart phone/tablet applications, on an “as is” basis. The Programme also includes a computerised cognitive function test known as the Computerised Cognitive Assessment Tool (“CCAT”), a software program developed by Cogstate Limited ABN 80 090 975 723 (“Cogstate”), as a component of the Programme. In this document, “Publishers” means HeadSmart™ and Cogstate, jointly and severally, and includes their respective directors, officers, employees, shareholders and agents.
The Programme is designed for use by athletes, coaches, parents, trainers, sport officials, and medical health professionals to provide information about, and assist in the preliminary recognition of concussion only. Whilst the Programme endeavors to provide accurate concussion management guidelines through the Programme, the Publishers make no warranties in relation to the accuracy or completeness of the content of the Programme. Each user of the Programme (“User”) acknowledges and agrees that the Programme is not a substitute for examination by a medical professional and the User relies on the Programme entirely at their own risk. Each User hereby releases and indemnifies the Programme, HeadSmart™ and Sports Concussion Australasia™, its Publishers from and against any and all liability, claims, awards, judgments, loss (including but not limited to loss of business and loss of profits), damages, costs and/or expenses (collectively, “Damages”) arising from their use of or reliance on the Programme.
To the fullest extent permitted by law, except for any liability that cannot be excluded by law (including the Non-Excludable Guarantees defined below), the Publishers hereby exclude any and all Damages arising out of or in connection with the Programme, HeadSmart™ and Sports Concussion AustralasiaTM or the reference or reliance by the User or any other person on the information or services rendered by the Programme, howsoever and whensoever arising (whether indirectly or indirectly caused and whether or not arising from negligence or from treatment suggested in the Programme), or anything connected or related thereto.
The above exclusions and limitations apply only to the extent permitted by law and do not limit, exclude, modify or purport to limit, exclude or modify the statutory consumer guarantees or implied warranties provided under the Competition and Consumer Act, ASIC Act, Consumer Guarantees Act or similar consumer protection laws (“Non-Excludable Guarantees”). Except for any liability that cannot by law be excluded, including the Non-Excludable Guarantees, the Publishers exclude all liability (including negligence), for any personal injury; or any loss or damage (including loss of opportunity); whether direct, indirect, special or consequential, arising in any way out of the App, Tools or any component of a customised concussion programme. Use of the Programme by a person under the age of 18 years is conditional upon a parent or guardian of such User agreeing to the above for and on behalf of the User.
The Programme takes all reasonable steps to ensure that the Personally Identifiable Information or Other Personal Information we collect is accurate, complete and up-to-date. To this end, we encourage all users to check the information that they provide and the information contained in their registrations and to correct any errors or incomplete information. At any time, you (or the Parent/Guardian of a Child) may request to see the Personally Identifiable Information or Other Personal Information that the Programme or an authorised third party may have about you (or your Child), and may request in writing that such Personally Identifiable Information be permanently deleted from our database or the database of authorised third parties or that the information be corrected. Any such requests should be made in writing to: HeadSmartTM Sports Concussion Programme, 220 Ashmore Road, Benowa, QLD, 4217. The Programme takes reasonable steps to secure protect and to prevent misuse, loss and unauthorised access, modification or disclosure of Personally Identifiable Information and Other Personal Information.
When you visit the Site, our server collects some anonymous information, known as “Click-Stream Data”, including: the type of computer/device you are using; the operating system your computer/device is running; the web browser you are using; the address of the website you have come from and the website you go to after your visit; the date and time of your visit; and your server’s IP address. We may collect this information for statistical purposes to find out how the Site is used and navigated (including the number of hits, the frequency and duration of visits, most popular session times, most popular pages, etc.) and may use this information to evaluate and improve our Site performance. A “cookie” is a piece of information that our web server may send to your computer/device (smart phone, tablets etc.) when you visit our Site. The cookie is stored on your computer/device, but does not identify you or give us any information about your computer/device. A cookie helps us to recognise you when you visit our Site again and to co-ordinate your access to different pages on the Site. With most web browsers, you can block or erase cookies from your computer/device, but if you do this, you may not be able to access some features of the Site. This also applies to applications for smart phones, tablets and other mobile devices.
The Programme may use Personally Identifiable Information, Other Personal Information and Click-Stream Data (collectively, “Information”) to store and process that information to improve our goods and services. The Programme may occasionally send users newsletters, special offers or promotions, and information on products and services that we consider will be of interest to you, and may contact users as part of market research. By using the Services, you consent to such uses, including contacting you via telephone calls and electronic messages, for an indefinite period, unless you notify us otherwise.
You agree that the Programme may release Information: (1) to comply with valid legal requirements such as a law, regulation, search warrant, subpoena or court order; or (2) in response to a physical threat to you or others, to protect property or defend or assert legal rights. In the event that the SCP is legally compelled to disclose your Information to a third party, the SCP will attempt to notify you unless doing so would violate the law or court order. In addition, the SCP may disclose Information as described below. The Programme programming and service providers may have, or be granted from time-to-time, limited access to your Information in the course of providing services to the Programme in support of the Services. Such third party providers may include vendors and suppliers that provide the Programme with technology, services, and/or content for the operation and maintenance of the Services. These contractors also may have access to your email address to send newsletters or special promotions to you on the Programme behalf or to send emails to you for purposes such as conducting market research for the Programme, and by using the Services you consent to receive such newsletters, special promotions or marketing research inquiries, including via telephone calls and electronic messages, for an indefinite period, unless you notify us otherwise. Access to your Personally Identifiable Information by these contractors is limited to the information reasonably necessary for the contractor to perform its limited function for the Programme. The Programme requires all third party service providers to execute binding agreements in which the third party agrees to: (1) protect the privacy of your Personally Identifiable Information consistent with this Policy, and (2) not use or disclose your Personally Identifiable Information for any purpose other than providing the Programme with products and services as required by law.
The Programme stores Personally Identifiable Information and Other Personal Information in computer servers located in Australia and New Zealand. If you reside in a country outside these jurisdictions, you consent to the Programme transferring your Personally Identifiable Information and Other Personal Information to the above jurisdiction. If you provide your consent, the Programme may also provide your Personally Identifiable Information and Other Personal Information to its sponsors and those sponsors may use that information to contact you for promotional, marketing and research purposes, including contacting you via telephone calls and electronic messages, for an indefinite period until you notify us otherwise.
Traumatic brain injury (“TBI”) and Sports-Related Concussion (“SRC”) are potentially serious medical conditions and doctors, athletes, parents, guardians, coaches, physiotherapists, exercise physiologists (sports trainers) and sports officials should always take a conservative approach to treatment. If it is suspected that an athlete may have sustained a TBI and/or SRC, they should immediately seek the care of a “Concussion Care Provider” and if necessary be referred to a “Concussion Care Consultant” or consult another medical professional. No parent, guardian, coach, athlete, physiotherapist or exercise physiologist (sports trainer) should ever make a decision as to whether an athlete has sustained a TBI and/or SRC, nor should they decide whether an athlete who has sustained a TBI / SRC is ready to return to sport, school or work. The Tools and information provided through the Programme are not intended as, and should not be taken as a substitute for, medical advice.
The Programme Site and Applications require transmission of your personal data as a process registering as a “Member” and gaining access to certain features necessary for purchasing of CCAT and through responses to the CCAT via media connections that are beyond the control and supervision of the Programme. To the maximum extent permitted by law, the Programme and its sponsors and their affiliates (jointly and severally, “Publishers”, including their respective directors, officers, employees, shareholders and agents) therefore disclaim any and all liability for or relating to the delay, failure, interruption, corruption or loss of any data transmitted in connection with use of the Programme and/or the CCAT. To the maximum extent permitted by law, the Publishers disclaim and exclude any and all terms, warranties and consumer guarantees as to the Programme, the CCAT, or to any services provided through the Programme, whether express or implied, including but not limited to, any implied warranties in relation to the merchant facility, infringement satisfactory quality, accuracy or fitness for a particular purpose and all warranties arising from course of dealing or usage of trade. Without limiting the foregoing but to the maximum extent permitted by law, in no event will the Publishers (whether based in contract, tort, strict liability or any other legal theory) for any indirect, incidental, special or consequential damages arising out of the use of or the inability to use the Site, Applications, Products, Tools, or any portion thereof, and in any event the loss of use of the Site, Applications, Products, Tools, inaccurate results, loss of profit or damages stemming from the loss or corruption of data or data being rendered inaccurate, the cost of recovering any data, and including, without limitation, claims related to diagnostic accuracy and/or medical malpractice and/or personal injury, even if the Publishers have been advised of the possibility of such damages.
To the maximum extent permitted by law, the Publishers expressly disclaim any representations or warranty related to the accuracy, reliability, completeness, correctness, or timeliness of the Site, Applications, Products, Tools, articles or advice provided to you through the Programme, links that may appear on the Site or Applications, and other materials that may be made available to you from time to time in connection with the Programme. The above exclusions and limitations apply only to the extent permitted by law and do not limit, exclude, modify or purport to limit, exclude or modify the statutory consumer guarantees or implied warranties provided under the Competition and Consumer Act, ASIC Act, Consumer Guarantees Act or similar consumer protection laws (“Non-Excludable Guarantees”). Except for any liability that cannot by law be excluded, including the Non-Excludable Guarantees, the Publishers exclude all liability (including negligence), for any personal injury; or any loss or damage (including loss of opportunity); whether direct, indirect, special or consequential, arising in any way out of the Programme.
Minors (under the age of 18 years) may only use the Programme (including access to the Site) with the consent and permission of their parent and/or legal guardian. The Programme advises that parents should make the important decision regarding when and how their minor children use the Programme and the CCAT. When a minor child registers on the Programme or to take the CCAT, the registration process requires the minor child to supply the name, address, phone number and email address of a parent.
Content in the Programme, including but not limited to the HeadSmart™ Sports Concussion Programme Site, Applications, Products and Tools (“Content”) are protected by the intellectual property laws in Australia, New Zealand, South Africa and the United Kingdom including copyrights, trademarks and/or service marks. All right, title and interest in and to the Content shall remain solely with the Programme or its affiliates or the providers of the Content licensed for use by the Programme. Any use of the Programme and/or Content not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. the Programme reserves the right to alter, change or modify without notice the Programme and Content. In the event any User violates any of these Terms, that User’s license to use the the Programme (including the Site, Applications, Products and Tools) shall automatically and immediately terminate and that User will be required to immediately destroy any copies they have made of any portion of the Site. However, the Programme license to use any User Information provided by the User will continue indefinitely.
Creating a profile as registration with the Programme or registering for the CCAT, all Users will choose and register with Programme a unique password which will enable them to access certain portions of the Site/Applications or take the CCAT. No two Users may have the same password. This password will also allow Users to provide and store certain information on the Site/Applications. Once a password has been created, Users shall be solely responsible for taking all reasonable steps to ensure that no unauthorised person shall gain access to their password. Users shall be solely responsible for the safekeeping of their password, authorising use of such password, contacting Programme immediately upon learning of a misappropriation of such password and/or requesting to deactivate your password.
Users grant Programme and all other persons or entities involved in the operation of the Programme the right to transmit, monitor, retrieve, store, and use this information in connection with the operation of the Site/Applications.
In purchasing CCAT on the Site, Users may be required to provide information required to complete the payment, including but not limited to a valid credit card number, expiration date, and CCV code (“Payment Information”) at the time they purchase the CCAT or any other product or service offered by the Programme. Users agree to pay any and all charges resulting from any purchase of the CCAT or other product or service and, by providing Payment Information, Users represent and warrant that they are the authorised user of the credit card.
Users agree that the Programme may submit Payment Information and related User Information to Programme service provider(s) solely for their use in charging Users for the purchase of the CCAT or other products or services offered by Programme. The Programme reserves the right to modify the pricing of the CCAT or any other product or service from time-to-time with or without notice.
The Programme may provide from time to time links to third-party web sites on the Site and Applications. The SCP is not responsible for the content provided through third-party sites linked from time-to-time to the Site/Applications or advertisements displayed on the Site/Applications, and do not make any representations regarding their content, accuracy or non-infringement. Users agree that any use of third-party links is at their own risk and subject to the terms and conditions of use for such sites.
All Users expressly agree that the results of the Tools including CCAT (except for Concussion FirstResponder™)are intended to be evaluated solely by qualified medical professionals as a tool for assessing cognitive performance relative to a pre-established baseline. The FirstResponder™ Concussion Recognition App is a tool for persons who are not medically qualified to recognise symptoms of concussion and seek medical attention should any warning signs occur. The Tools are not intended to determine whether an athlete has suffered an injury, or whether an injured athlete is ready to return to play and any such interpretive use by Users other than qualified medical professionals is an express violation of these Terms. Users expressly agree to defend, indemnify, and hold harmless the Programme, its sponsors, Cogstate, their affiliates, and their respective officers, directors, shareholders, agents, licensors, suppliers, successors and assigns from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable attorney’s and accounting fees, resulting from, or alleged to result from any violation of these Terms, regardless of whether such violation is intentional, negligent or inadvertent.
These Terms and the rights, obligations, liabilities, and responsibilities of the parties hereto, shall be governed and interpreted in accordance with the laws of the Commonwealth of Australia, without reference to the conflicts of laws principles of that or any other jurisdiction. The invalidity of any provision of these Terms by any court having competent jurisdiction shall not affect the validity of the remaining provisions of these Terms which shall remain in full force and effect. The waiver by the Programme of any default or breach of these Terms will not constitute a waiver of any other or subsequent default or breach. No act, delay or omission on the part of the Programme will be deemed a waiver unless expressly made in writing. These Terms constitute the complete agreement between the Programme and the User, and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the use of the Programme and the CCAT. This Agreement may be modified or amended from time to time, provided that the Programme notifies Users of such modification, at which time each User shall either accept such modifications or de-activate their account and immediately cease using the Site, Applications, Products and Tools.
Personally Identifiable Information may include any or all of the following for all classes of site users:
All Payment Information will be encrypted and processed by accredited third party providers, and will not be retained by the Programme upon successful completion of the transaction, unless you specifically elect to retain such Payment Information in your account. The Programme may also collect Personally Identifiable Information and Other Personal Information when users contact us to make inquiries or enter promotions, for example, even if they have not registered.
If you or your Child elects to use that voucher to register for the CCAT, you will be asked to share some of the Personally Identifiable Information described above and Other Personal information with the User who provided the voucher. The information shared will be the Athlete’s name, CCAT results, dominant hand and birth year. If you do not wish to share your information or that of your Child with that User, you should not accept the voucher from that User, and should instead register directly with Cogstate and purchase a voucher for yourself or your Child.