Last Updated: April 7, 2021
Behaviorsoft LLC is hereafter referred to as “Behaviorsoft”, “We”, “Us” or “Our”.
Licensee is hereafter referred to as “You” or “Your”.
BY ACCESSING, USING THE SOFTWARE AND/OR SIGNIFYING YOUR ACCEPTANCE TO THESE TERMS OF SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT AS AND/OR ON BEHALF OF THE PERSON/ENTITYLISTED IN THE ACCOUNT CREATION, SIGN UP OR SIMILAR FORM (“REGISTRATION FORM”), THE ACCOUNT OWNER AND THE PRACTICE. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THE ACCOUNT OWNER AND THE PRACTICE TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE AND DO NOT HAVE THE AUTHORITY AS PROVIDED HEREIN, YOU MAY NOT AND SHALL NOT ACCESS, OR USE THE SERVICE (AS DEFINED IN THESE TERMS OF SERVICE).
IF YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, PLEASE SELECT THE BOX ON THIS PAGE LABELED “I ACCEPT,” AT WHICH TIME THE PROGRAMS AND OTHER OPERATING INFORMATION USED BY A COMPUTER (“SOFTWARE”) WILL BE ACCESSIBLE ON YOUR COMPUTER.
IF YOU DO NOT AGREE TO THESE TERMS OF THESE TERMS AND CONDITIONS, PLEASE UNSELECT THE BOX ON THIS PAGE LABELED “I HAVE READ AND AGREE WITH BEHAVIORSOFT'S TERMS,” WHICH WILL TERMINATE THE SOFTWARE SIGNUP PROCESS AND ANY USE THEREOF.
IF THE SOFTWARE IS ALREADY LICENSED, TO CONTINUE USE THEREOF, YOU MUST SELECT THE BOX ON THE PAGE LABELED “I HAVE READ AND AGREE WITH BEHAVIORSOFT'S TERMS”.
The Software that You are to access or have previously accessed has been developed by Behaviorsoft LLC, a Florida limited liability company (“Behaviorsoft”). These Terms and Conditions sets forth all of the terms and conditions under which You, as an individual or entity, are authorized by Behaviorsoft to use the Software. Access to and use of the Software is by permission of Behaviorsoft exclusively and only upon acceptance of these Terms and Conditions. We may grant or withhold approval in Our sole discretion.
Behaviorsoft reserves the right, from time to time, to change the terms of this Software License and Terms and Conditions in its sole and absolute discretion. We will provide notice to You of any such changes via email at the email address You provide to us when registering Your account. Once such notice is sent, Your continued use of the Services shall indicate Your assent to the revised terms. You undertake to update Your contact information, including Your email address, to the extent it changes. The most current Terms and Conditions supersedes all prior versions. You agree to be bound by such changes. You must be 18 years of age, or the age of majority in Your state, province, country, or territory to use the Services.
Based on the foregoing and for other good and valuable consideration, You and Behaviorsoft agree as follows:
1. OWNERSHIP OF SOFTWARE. Behaviorsoft developed and owns the Software, the documentation and all copyright and other intellectual property rights therein. These Terms and Conditions do not transfer to You any title to or any proprietary or intellectual property rights in or to the Software, any updates or derivative works thereto, or the Documentation, or any copyrights, patent rights, or trademarks embodied or used in connection therewith, except for the rights expressly granted in these Terms and Conditions. Behaviorsoft retains all rights to the Software and the Documentation not specifically granted herein. The Software and the Documentation are protected or protectable by United States laws and international treaty provisions. YOU MAY NOT USE, COPY, OR MODIFY THE SOFTWARE, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE TERMS AND CONDITIONS. Our name, brands, logos, slogans and other trademarks are our trademarks. All other names, brands, logos, product and service names, and designs appearing on the Services are the trademarks of their respective owners. You may not use such trademarks without our prior written permission.
You must not:
2. OWNERSHIP OF YOUR DATA. As between You and Behaviorsoft, Your data is and will remain Your property. You grant to Behaviorsoft a non-exclusive right to use, copy, distribute and display Your data solely in connection with Behaviorsoft’s operation of the Services on Your behalf. You, not Behaviorsoft, have sole responsibility for the accuracy, integrity, and reliability of Your data, and Behaviorsoft will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your data.
3. LICENSE GRANT. Behaviorsoft hereby grants to You one nonexclusive, non-assignable, nontransferable, non-sublicensable license, for Your internal use (“License Grant” or “Software License”) only on one single computer concurrently (unless a network license was purchased, see below), for the Term (as defined hereafter) of these Terms and Conditions, to access and use the Software and any user’s guides, specifications, and other related documentation available, whether hard copy or online (the “Documentation”), subject to these Terms and Conditions.
3. NETWORK LICENSE. If a Network license was purchased, You are granted this Software License for Your internal use only, for installation or storing the Software on multiple computers connected by a local internal network to a license server. The Software may then be run on these computers provided enough concurrent user licenses are acquired and dedicated for each separate computer that will run the Software concurrently.
4. USER COMMENTS, FEEDBACK & OTHER SUBMISSIONS. If, at our request or without a request from us, you send certain specific submissions (for example contest entries) or you send creative ideas, suggestions, proposals, plans, or other materials, whether online, by email, by postal mail, or otherwise (collectively, ‘comments’), you agree that we may, at any time, without restriction, edit, copy, publish, distribute, translate and otherwise use in any medium any comments that you forward to us. We are and shall be under no obligation (1) to maintain any comments in confidence; (2) to pay compensation for any comments; or (3) to respond to any comments.
5. LICENSE KEY. During the Term of these Terms and Conditions, We periodically may issue a license key (file, activation key, internet-based account, or other similar method) to enable the Software to execute on the computer or server designated by You.
6. ACCEPTABLE USE. You are allowed to:
a. upload word documents, pdfs, or images to the Behaviorsoft system, but no other types of documents or files. You are solely responsible for scanning these documents in and out of the Behaviorsoft system for viruses or other malware that might affect You.
b. create patients’ and contractors/workers’ profiles.
c. customize the clients’ profiles with their own data, behaviors, etc. You can customize the type of workers and more. You are permitted to upload documents to these profiles and clients, not exceeding the limits of size, as shown on the app modals.
d. use the system to collect the data from the therapy sessions or other types of data collection to create, manage and download reports, documents, or other files. The files are generated by the system on Your request. We do not create these reports or documents unless they are requested on the website by a user.
7. UNACCEPTABLE USE: You are prohibited from:
a. using any third-party software that interferes with the system, such as Web Crawlers, Downloaders, or other plugins that might interfere with the system;
b. accessing data that does not belong to Your profile or company;
c. disassemble, reverse engineer, decompile or otherwise attempt to derive any Software source code from object code, except to the extent expressly permitted by applicable law despite this limitation;
d. distributing or providing the Software or password to any third party;
e. providing a third party with the results of any functional evaluation, benchmarking or performance tests, rent, lease, loan, sell, sublicense, distribute, transmit, network, or otherwise transfer the Software access to any third party without Our prior written approval;
f. disabling or circumventing any of the licensing mechanisms within the Software, if any;
g. prepare any derivative work of the Software or remove any product identification, copyright, trademark or other notice from the Software; or
h. violate any other usage restrictions contained in the Software installation instructions or release notes.
Behaviorsoft may monitor Your use and use technologies to verify Your compliance with the License granted herein and restrictions thereto.
8. YOUR OBLIGATIONS. You shall be solely responsible for: (a) providing all hardware, software, and communications capabilities required for use of the Software, as specified by Behaviorsoft; (b) generating, providing, and loading Your data into the Software, including, without limitation, historical data to permit You to use the Software; and (c) Internet access necessary for Your use of the Software and this License Grant.
9. CONDITIONED UPON PAYMENT. The License Grant herein is conditioned upon payment in full for the Software in advance of Your use of the Software.
10. TERM AND TERMINATION. The license granted herein is automatically renewed on a month to month basis unless terminated in accordance with this section (Section 10) or until Behaviorsoft requires subsequent acceptance of its Terms and Conditions. As long as the Software License is in effect and You adhere to these Terms and Conditions.
a) Termination for Cause. Behaviorsoft may terminate the Terms and Conditions in its entirety effective immediately upon written notice to You if (1) You breach any provision of this agreement and fail to cure such breach within ten (10) days of receiving notice from Behaviorsoft of such breach; (2) You fail to pay any portion of the fees due to Behaviorsoft under these Terms and Conditions or any other agreement into which You enter with Behaviorsoft within ten (10) days of receiving notice from Behaviorsoft that such fees are past due; (3) You breach any portion of Section 5 above; (4) You commit a material breach of these Terms and Conditions or the Terms that is not capable of being cured; (5) Your failure to immediately cease and permanently desist, after verbal or written notice, Your abusive, threatening or otherwise inappropriate behavior during interactions of any kind with or towards any Behaviorsoft employee or independent contractor or other user; or (6) we believe, in our sole discretion, that You are engaged in illegal or improper use of the Services. In the event of termination of these Terms and Conditions and Your License/Account for cause, no fees shall be refunded to you.
b) Termination for Convenience. You may terminate these Terms and Conditions in its entirety for any reason by clicking on Profile in the top navigation menu, then clicking Subscription and cancelling there. Such termination shall be effective immediately. Behaviorsoft may terminate this Terms and Conditions and the License granted herein effective immediately for any reason or no reason, in its sole discretion. If the Terms and Conditions and the License granted herein is terminated by Behaviorsoft after thirty (30) days from the activation of Your account, no refund of any Fees will be given.
c) Termination for Modification of Software or Services or Fee Changes. In the event that Behaviorsoft modifies the software or services and You are dissatisfied with the modification or Behaviorsoft notifies You of any increase in the fees, You may terminate the Terms and Conditions effective immediately upon written notice to Behaviorsoft.
d) Termination for Insolvency. Behaviorsoft may terminate the Terms and Conditions in its entirety effective immediately upon written notice to You if You (1) terminate or suspend Your business; (2) become insolvent, admit in writing Your inability to pay Your debts as they mature, make an assignment for the benefit of creditors, or become subject to control of a trustee, receiver or similar authority; or (3) become subject to any bankruptcy or insolvency proceeding.
e) Effect of Termination. Upon termination of the Terms and Conditions for any reason, (1) all rights and licenses granted to You under the Terms and Conditions shall immediately be terminated and cease to exist; (2) Your account and password shall be deactivated and any further attempt by You to access the Software or Services shall be deemed a material breach of this agreement and copyright infringement; (3) all information, files, data, and content associated with Your account shall be removed; and (4) You must immediately discontinue all use of the Services and destroy all copies of Software and Documentation. Behaviorsoft has no obligation or responsibility to retain any information or content related to Your account or use of the Services after termination of the Terms and Conditions. Behaviorsoft shall not be liable to You or any third party for any termination of Your account or Your access to the Services hereunder.
11. FEES AND PAYMENTS
a) Fees and Fee Changes. The initial invoice shall set forth all Fees, including the Activation Fee, the Monthly Fee, and any other applicable fees. Behaviorsoft reserves the right to adjust the fees for the Services or any components thereof in any manner and at any time as Behaviorsoft may determine in its sole and absolute discretion. Except as otherwise expressly provided for in the Terms and Conditions, any Fee changes will become effective after You are notified of the change by email. Your sole remedy in the event that You object to any increase in Fees is to terminate the Terms and Conditions under Section 10 above.
b) Recurring Billing. By accepting the Terms and Conditions and providing a Payment Form, You authorize Behaviorsoft to charge the then-current Monthly Fee and any other charges You may incur in connection with Your use of the Services to Your payment form. You acknowledge that the amount billed each month may vary for reasons that include changes that You initiate to Your Services selection and changes to the Fees charged by Behaviorsoft. You authorize us to charge Your payment form for such varying amounts. You acknowledge that the Monthly Fee is billed and charged one month prior to the Services being provided and that the Monthly Fee is fully earned upon payment and non-refundable, except as otherwise provided herein or in another writing signed by Behaviorsoft.
12. SURVIVAL. Notwithstanding termination, the provisions of these Terms and Conditions shall survive termination and You shall continue to comply.
13. CONFIDENTIALITY. You agree that You shall not disclose to any third party the Software or any portion thereof, any technical, product, or business information, or any information that Behaviorsoft identifies as confidential (collectively, “Confidential Information’') related to the Software without the prior written consent of Behaviorsoft. You shall maintain the confidentiality of all Confidential Information and shall not use it for any purpose other than the performance of these Terms and Conditions. Notwithstanding the foregoing, Confidential Information does not include information that You can demonstrate was (a) publicly available at the time of disclosure, or later became publicly available through no act or omission by You; (b) in Your possession before disclosure by Behaviorsoft; or (c) disclosed to You by a third party not in violation of any obligations of confidentiality to Behaviorsoft or to any third party.
14. PRIVACY AND COLLECTION AND DELETION OF PERSONAL OR SYSTEM INFORMATION. The Software may employ applications and tools to collect personally identifiable, sensitive or other information including personal information, network information, geographical information, information about the usage of the software, license information (key) expiration or machine information (including, but not limited to, information regarding the hardware, the system, disk ID, Medium Access Control Address (MAC address), collectively “Data.” The collection of this Data may be necessary to You and Your users with relevant Software or Technical Support. Without access to this Data, we may not be able to verify Your compliance with these Terms and Conditions, among other things.
15. LIMITATION OF LIABILITY.
IN NO EVENT SHALL BEHAVIORSOFT BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE SOFTWAR AND BEHAVIORSOFT SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES,
16. LIMITED WARRANTY AND DISCLAIMER. Behaviorsoft warrants that, as of the date on which the Software is purchased and for ( ) days thereafter (the “Warranty Period”), the Software will provide the general features and functions described in the Documentation in effect on the date of purchase. Behaviorsoft's entire liability and Your exclusive remedy during the Warranty Period (the “Limited Warranty”) will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under Florida law, at Behaviorsoft's option, (i) to attempt to correct or work around errors, if any, or (ii) to refund license fees paid by You. Any refund shall be subject to (a) the discontinuance of the use of the Software, (b) deactivation of the license key per instructions provided by Behaviorsoft, (c) destroying all printed copies and deleting all electronic copies of any documentation that You have downloaded, printed, or created relating to the Software ensuring that no copies of any of the Software screens, data, or other content remain archived or otherwise stored on Your computer(s) and (d) providing declaration of same to Behaviorsoft.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, BEHAVIORSOFT MAKES NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO ANY SOFTWARE, DOCUMENTATION, THIRD PARTY SOFTWARE OR OTHER PRODUCTS OR SERVICES, AND EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BEHAVIORSOFT DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFECTS CAN BE CORRECTED. BEHAVIORSOFT MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE THAT IS NOT INCORPORATED INTO BEHAVIORSOFT’S SOFTWARE OR THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, BEHAVIORSOFT DOES NOT WARRANT OR GUARANTEE THAT YOU WILL BE ABLE TO ACCESS THE SOFTWARE AT ALL TIMES. YOU UNDERSTAND AND ACKNOWLEDGE THAT INTERNET CONGESTION AND OUTAGES, AS WELL AS MAINTENANCE, DOWNTIME, AND OTHER INTERRUPTIONS, MAY INTERFERE AT TIMES WITH YOUR ABILITY TO ACCESS THE SOFTWARE.
17. INDEMNIFICATION. You shall indemnify, defend, and hold Behaviorsoft and its officers, agents, affiliates, and employees harmless from and against any and all actual or threatened losses, liabilities, expenses, damages, claims, demands, proceedings, and causes of action (including without limitation, reasonable attorneys’ fees and expenses) (“Claims”) based on, arising out of, concerning, resulting from or relating to:
a) Your breach of any of the terms or provisions of the Terms and Conditions, including without limitation any Claims resulting from Your unauthorized subjection of Behaviorsoft to international law;
b) Your unauthorized use or Your or Your Buyer’s misuse of the Software or Services;
c) Any Claims made by a third party against Behaviorsoft as a result of their use of the Software or Services or as a result of their dealings or interactions with You; and
d) Any violation by You of the Terms and Conditions, including any infringement of any third party’s copyright or other intellectual property resulting from Your Buyer’s use of the Services.
Behaviorsoft shall provide prompt notification to You of any such Claims.
18. GOVERNING LAW. These Terms and Conditions shall in all respects be governed by and be construed in accordance with the laws of the State of Florida, without regard to its conflict of law’s provisions.
19. NO ASSIGNMENT. You may not assign these Terms and Conditions or any of the rights granted by Behaviorsoft hereunder, in whole or in part, without the prior written consent of Behaviorsoft, and any attempt to do so shall be void. These Terms and Conditions is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
20. ATTORNEYS FEES. In the event of legal action brought by either party, the prevailing party shall be entitled to reimbursement of actual legal fees and related expenses.
21. MODIFICATION. These Terms and Conditions may be modified or amended at the sole discretion of Behaviorsoft.
22. NOTICES. Any notice delivered by Behaviorsoft to You under these Terms and Conditions will be delivered via email, mail, or fax to the last email address, mailing address, or fax number that You provided to Behaviorsoft. It is Your responsibility to update Behaviorsoft as to any changes in Your contact information.
23. DISPUTE RESOLUTION. PLEASE READ THIS SECTION 18 CAREFULLY BECAUSE IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. THIS SECTION 18 REQUIRES YOU TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.
If you believe you have a dispute or claim against us arising out of your use of the Services or under these Terms and Conditions, you agree to first discuss the matter informally with us for at least 30 days. To do that, you must give us written notice, which will include your full name and contact information, the nature and basis giving rise to your dispute or claim and your proposed resolution, sent to the address below.
If you are located in, are based in, have offices in, or do business in a jurisdiction in which this section is enforceable, you understand and agree that any dispute, claim, or controversy arising under or in connection with these Terms, including your use and access to the Services or any other content, including, but not limited to, claims as to whether any services rendered by Behaviorsoft or persons employed or engaged by Behaviorsoft were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered, shall be finally and exclusively resolved by binding arbitration under the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules and Mediation Procedures and Consumer-Related Disputes Supplementary Procedures, and not by a lawsuit or resort to court process, except as Florida law provides for judicial review of arbitration proceedings. Each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. It is your responsibility to pay any AAA filing, administrative and arbitrator fees as set forth in the AAA Rules.
YOU ACKNOWLEDGE AND AGREE THAT BOTH PARTIES TO THE TERMS WAIVE THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. The parties further agree that the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this agreement to arbitrate. Any such controversy or claim shall be arbitrated on an individual basis, unless both parties otherwise agree in writing. The arbitration shall be held in Miami, Florida U.S.A.
If you are not located in, are not based in, do not have offices in, and do not do business in the United States, any arbitration between you and Behaviorsoft will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC Rules”) by one or more arbitrators appointed in accordance with the ICC Rules and will be administered by the International Court of Arbitration of the International Chamber of Commerce. You agree that such arbitration will be located in the Southern District of Floria, and waive any objection to such jurisdiction or venue.
This arbitration provision is governed by the Federal Arbitration Act. You can opt out of this arbitration provision within 30 days of the date that you first agreed to these Terms. To opt out, you must send your name, residence address and email address used for your Behaviorsoft account, and a clear statement that you want to opt out of this arbitration provisions to Behaviorsoft, 12350 SW 132nd CT, Suite 203, Miami, FL 33186. Should you choose to withdraw from the arbitration provision, all other provisions of the Terms shall remain in full force and effect.
If for any reason a claim proceeds in court rather than arbitration, each party waives any right to a jury trial. You agree to the personal jurisdiction by and venue in the state courts of Dade County, Florida or a United States District Court, Southern District of Florida, and waive any objection to such jurisdiction or venue.
24. ACKNOWLEDGEMENT AND EXCLUSIVITY. YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND BEHAVIORSOFT, AND THAT IT SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT. OR UNDERSTANDING, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND BEHAVIORSOFT RELATING TO THE SUBJECT MATTER OF THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS MAY NOT BE CHANGED, ALTERED, OR MODIFIED EXCEPT IN WRITING AND SIGNED BY THE PARTIES.
Last updated: April 7, 2021