Terms of Service
Last Revised: September 21, 2020
By executing an order form (“Customer’s Order”) to subscribe for Behaviorsoft services (the “Services”) or accessing or using any of the Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to Behaviorsoft that you have the authority to bind that organization to these Terms (in which event, the terms “Customer”, “you” and “your” will refer to that organization). Customer may use the Services only in compliance with these Terms. You agree to these Terms only if you have the power to form a contract with Behaviorsoft and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES. Should you have any questions concerning these Terms, please contact us at contracting@Behaviorsoft.com.
- GOVERNING DOCUMENTS
In addition, Addendums setting forth additional terms and conditions specific to a Customer’s geographic location (or particular services you may have purchased) may also apply, and are available at https://behaviorsoft.com/terms-of-service/ (“Service Addendums”). You agree to review such Service Addendums and agree that any such Service Addendums applicable to you are binding and incorporated herein by reference. The term “Service Agreement” as used herein shall include any applicable Service Addendums.
In the event of any conflict or ambiguity between any of the documents that form the Service Agreement, said conflict or ambiguity shall be resolved by giving precedence to the documents in the following order.
- Customer’s Order;
- Any applicable Service Addendums;
- Terms of Service;
- Business Associate Agreement; and
- All other Additional Agreements
Capitalized terms not otherwise defined herein in the Service Agreement shall have the meaning assigned to them in Customer’s Order.
- TERM, TERMINATION, AND RETENTION OF DATA
Unless the duration of the Services subscription is otherwise stated in Customer’s Order, Customer’s subscription to use the Services shall be for a one (1) month period, and fees for the Services shall be charged on a monthly basis, and shall automatically renew for additional one (1) month periods at the end of any term, unless and until terminated by either party. Unless otherwise specified in a Customer’s Order, if such Customer’s Order has an initial term greater than one (1) month, such Customer’s Order shall automatically renew for successive terms equal to the initial term. Customer cancellations shall occur by unsubscribing from the Services thirty forty-five (45) days prior to the expiration of the then-current term. . Behaviorsoft agrees to provide thirty (30) days written notice of any termination. In no event will Customer be entitled to reimbursement of any fees paid for a subscription term.
b. Termination for Material Breach
Unless otherwise stated in Customer’s Order, either Party may terminate the Service Agreement during the Initial Term or any Renewal Term if the other Party materially breaches any term of the Service Agreement and does not cure the breach within thirty (30) days of receipt of written notice of such breach. For purposes of the Service Agreement, non-payment within forty (40) days of the date of an invoice shall be a material breach. If Behaviorsoft terminates the Service Agreement due to a material breach by Customer, the full balance of Customer’s then applicable Term of the Services Agreement subscription (the monthly total recurring billing amount multiplied by the then remaining unpaid months of the then applicable Term) shall immediately be due and payable. Nothing herein shall alter Behaviorsoft’s right to suspend Customer’s Service pursuant to these Terms for non-payment, and no additional time provided by a Party shall serve as a waiver of the right to thereafter terminate without additional notice.
c. Suspension or Termination of Service for Violation of Law
Notwithstanding the foregoing provisions of this Section 2, Behaviorsoft may immediately suspend or terminate the Service without notice to Customer and remove applicable Customer Content (as defined below) if Behaviorsoft in good faith believes that, as part of using the Service, Customer may have violated a law, or any third-party rights. Behaviorsoft will provide Customer written notice of such action and shall be responsible for ensuring all Customer Content is recoverable for export purposes.
d. Data Retention Post Termination
The Customer is solely responsible for exporting all Customer Content prior to the termination of the Service Agreement (or last billing cycle). Customer can export data in an Excel (.XLS), Microsoft Word (.DOC), Portable Document Format (.PDF), or Comma Separated Values File (.CSV) format depending on the module. Customer can seek support for data export prior to termination from Behaviorsoft support staff, subject to any support costs. Behaviorsoft will retain all Customer Content for a minimum of sixty (60) days after the termination of the Service Agreement, including those accounts terminated due to non-payment or inactivity, as a safeguard in case the Customer requires more time to export all Customer Content. This sixty (60) days is referred to herein as the “Data Retention Period”. Customers will be responsible during this Data Retention Period to make any requests for additional data exports in writing to Behaviorsoft at contracting@Behaviorsoft.com, as account access may be restricted during the Data Retention Period due to termination of the Services. After the Data Retention Period expires, Behaviorsoft may remove or delete any Customer Content, including Customer Content that contains protected health information, and Behaviorsoft shall not be responsible for any damage caused by said removal. It is the Customer’s responsibility to comply with all privacy, data retention and other laws in its use of the Services, including Health Insurance Portability and Accountability Act (“HIPAA”)and any other healthcare or other regulations relating to medical records, including without limitation any required time period relating to the retaining records. Notwithstanding the foregoing, Behaviorsoft will not retain Customer Content longer than needed to provide the Services and satisfy other reasonable business purposes and limitations, such as: (i) complying with record retention obligations imposed on Behaviorsoft under applicable law or our other; (ii) resolving disputes or enforcing our agreements; or (iii) for the purposes of backup, recovery, contingency planning or business continuity planning provided that such Customer Content, to the extent not permanently deleted or overwritten in the ordinary course of business, is not accessed except as required for backup, recovery, contingency planning or business continuity purposes.
e. Transfer of Data
Customer acknowledges and accepts that Customer Information may be transferred to and stored in the United States for the purposes of providing the Services, and hereby explicitly authorizes Behaviorsoft’s processing of Customer Information in the United States. Customer warrants and represents it has all legal authority to transfer Customer Information to Behaviorsoft in accordance with the terms of the Service Agreement.
- USE OF SERVICE
a. Behaviorsoft Responsibilities
- Implementation. Customer is fully responsible for implementation of the Behaviorsoft product. Behaviorsoft will work expeditiously to complete any implementation training set forth in the Customer’s Order. Any delays in implementation caused by Customer shall not impact the billing start dates set forth in the Order.
- Data Import. Unless otherwise agreed to in writing, Customer agrees to import Customer Content utilizing Behaviorsoft’s self-service import tools. Behaviorsoft shall not be responsible for importing data that is not agreed upon in a written Customer Order or separate SOW. Any audits performed by Behaviorsoft of Customer’s data are complimentary and shall not serve as billing, financial or other advice.
- Support. Behaviorsoft will use commercially reasonable efforts to provide customer support for the Services in accordance with its published customer support plans, or if applicable any specific support plan, to which Customer has subscribed.
b. Customer Responsibilities
- Access by Employees and Independent Contractors; Per Seat License.Customer may allow its employees and independent contractors to access the Services in compliance with these Terms and the applicable Customer Order, which access must be for the sole benefit of Customer. Customer is responsible for compliance with the Service Agreement by its employees and independent contractors. Customer acknowledges and agrees that the Services are provided exclusively on a per seat license basis as set forth in the Customer’s Order. Accordingly, Customer agrees that its employees and independent contractors shall each have separate accounts and passwords, and no two employees or independent contractors shall have access to or share any single account or password. Customer agrees for purpose of this paragraph “independent contractor” means BCBAs, RBTs or other medical professionals who provide services to Customer on a consulting basis. For avoidance of doubt, Customer may not provide third party vendors or other third party service providers with login credentials or other access to the Services without prior written consent of Behaviorsoft, which may be withheld in its sole discretion. Competitors of Behaviorsoft, or companies owned by or under common control with competitors of Behaviorsoft may not access Behaviorsoft products or Services, and such competitor will be deemed to be in breach of these Terms (without regard to limitations of liability set forth herein) unless the prior written consent of Behaviorsoft has been obtained, which consent may be withheld in the sole discretion of Behaviorsoft.
- Restrictions and Responsibilities.
- Customer may not (i) sell, resell, rent or lease the Services, use the Services beyond its internal operations or reverse engineer the Services, (ii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights (including without limitation any privacy or intellectual property rights), or transmit unsolicited bulk e-mail, “junk mail”, “spam”, chain letters, or other form of prohibited solicitation or advertising; (iii) interfere with or disrupt the integrity or performance of the Services, (iv) attempt to gain unauthorized access to the Services or its related systems or networks, (v) remove or modify any proprietary marking or restrictive legends in the Services, (vi) use the Services in violation of any law, including without limitation, HIPAA, Telephone Consumer Protection Act and any spam laws (for example, CAN-SPAM), or fail to implement measures to protect patient privacy per HIPAA or other applicable regulations, (viii) encourage, assist or authorize any other person to copy, modify, reverse engineer, decompile, disassemble or otherwise tamper with the Behaviorsoft software comprising the Services, whether in whole or in part, or create any derivative works from such software, (ix) access the Services to build, or to assist a third party to build, a competitive product or service, or copy any feature, function or graphic of the Services for competitive purposes; (x) use any robot, spider, or other automatic device, process or means to access the Services for any purpose, including monitoring or copying any materials provided through the Services; (xi) introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful; (xii) attack Behaviorsoft, its Services, or any website operated by Behaviorsoft via a denial-of-service attack or distributed denial-of-service attack, (xiii) without our prior written consent, perform or disclose any benchmark or performance tests of the Services, or perform or disclose any of the following security testing of the Services: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing, or (xiv) use the Services to support any person designated by the United States government as a foreign terrorist pursuant to section 219 of the Immigration and Nationality Act or otherwise in violation of any United States and any other applicable local export control restrictions. Any use of the Services in breach of this Service Agreement by you or your employees or independent contractors that in Behaviorsoft’s reasonable judgment threatens the security, integrity or availability of the Services, may result in immediate suspension of the Services.
- Restrictions and Responsibilities.
- You will (a) provide your employees and independent contractors with computer equipment, telecommunications, data connections, and other equipment necessary to access the internet and use the Services, (b) maintain confidentiality of user names, passwords, and account information, and use commercially reasonable efforts to prevent unauthorized use of the Services through your equipment, (c) notify us promptly after becoming aware of any unauthorized use of the Services, (d) use the Services in accordance with this Service Agreement and applicable Customer Order, (e) comply with terms of service of any third-party applications you may use with the Services, (f) be responsible for the accuracy, quality and legality of Customer Content and the means by which you acquired and use Customer Content within the Service, and (g) timely provide any notices and obtain any consents required to be provided or obtained by you under applicable law, and otherwise comply with all laws applicable to you, related to your use of the Services, including, without limitation, to the collection, processing, and storage of Customer Content.
- Removal of Data from Platform. Customer understands that the intended HIPAA and other applicable privacy laws security of the Services is negated when data is removed from the platform. Customer is solely responsible for ensuring that all protected health information remains protected when it is exported, downloaded or otherwise removed from the Services by or on behalf of Customer.
- Accuracy of Information Provided by Customer. Customer represents and warrants to Behaviorsoft that all Customer Content, and other material provided under Customer’s account, by Customer or on its behalf, is true, correct and accurate. If Customer learns that any Customer Content or other information or material provided to Behaviorsoft as part of the Services is not true, correct or accurate, Customer shall notify Behaviorsoft. AS A MATERIAL INDUCEMENT TO BEHAVIORSOFT ENTERING INTO THE SERVICE AGREEMENT, CUSTOMER SPECIFICALLY AGREES THAT BEHAVIORSOFT IS NOT LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE CAUSED BY CUSTOMER’S FAILURE TO COMPLY WITH THIS PARAGRAPH, IRRESPECTIVE OF ANY ACT OR OMISSION ON THE PART OF BEHAVIORSOFT.
- Warranties. Customer represents and warrants to Behaviorsoft that:
- All Customer Content submitted to the Services does not infringe, misappropriate or otherwise violate any copyright, trade secret, privacy or other intellectual property or proprietary rights of any third party;
- Customer has all necessary rights and licenses to use all Customer Content in association with the Services and Customer’s use of the Services and instructions to Behaviorsoft will not exceed such rights and licenses;
- It will not submit any Customer Content that is untrue, defamatory, harmful to any person, or violates HIPAA or any state, federal laws regarding protected health information or patient privacy or other applicable privacy laws; and
- All submissions to Behaviorsoft by Customer of any data, written material, or otherwise, including without limitation, patient testimonials, are accurate and are submitted with the consent of all necessary entities and individuals, and comply with all applicable ethical guidelines, including without limitation, those of professional medical associations as well as state and local medical and private practice boards and governing bodies or any other applicable regulatory authorities.
- Warranties. Customer represents and warrants to Behaviorsoft that:
c. Additional Terms
- Customer Content. Customer may upload or enter data, images, files or other content and information to the Services (“Customer Content”). As between Behaviorsoft and Customer, all Customer Content belongs to Customer, and Customer hereby grants Behaviorsoft a non-exclusive irrevocable, perpetual, royalty free license to display, store, distribute, share, modify and otherwise use such Customer Content for all purposes related to providing the Services, including without limitation a license to provide the Customer Content to third party service providers used by Behaviorsoft to provide the Services. Notwithstanding the foregoing, Customer expressly agrees that if Customer’s access to the Services is suspended for non-payment of fees in accordance with Section 2.b. of these Terms, Behaviorsoft will have no obligation to provide Customer Content to Customer until Customer remedies such non-payment. The Services may also provide Customer with features like photo thumbnails, previews, easy sorting, editing, sharing, creating templates, and searching. These and other features may require Behaviorsoft systems to access, store, and scan Customer Content.
- Reminders and SMS Messages. Customer agrees that registering for or using the Services constitutes a request for Behaviorsoft to make telephone calls or to send emails, faxes, SMS reminders or other communications about upcoming appointments, special oﬀers and upcoming events. Behaviorsoft shall not be responsible for any text messaging or data transmission fees incurred by Customer or Customer’s employees or contractors. If Customer provides a cellular phone number, Customer specifically authorizes and consents to Behaviorsoft sending text messages or calling such a number. Customer represents and warrants it has the authority to grant such authorization and consent. Customer may opt out of such messages at any time through the Services by following instructions from Behaviorsoft. Not all mobile devices or handsets may be supported by aspect of the Services. Behaviorsoft and any mobile carriers are not liable for delayed or undelivered messages. Message and data rates may apply to any text messages. Message frequency depends on the nature of Customer’s request. Customer hereby agrees to be responsible for all costs, charges and fees you incur from your service or device provider as a result of choosing to receive such messages from Behaviorsoft.
- Geolocations. To the extent that any of our Services collect geolocation data as part of the use of such Services, you hereby agree and consent to the collection and storage of such geolocation data.
- Reviews & Opinions. Behaviorsoft does not endorse, validate as accurate, or necessarily agree with any of the reviews, links and user generated content from users or customers on the Services provided by Behaviorsoft. Behaviorsoft reserves sole discretion to refuse to publish any patient review provided by Customer.
- The Service may attempt to send automated or human-based alerts when reviews are provided on third party websites, but Behaviorsoft does not guarantee the accuracy, completeness or timeliness of such alerts.
- Advertisements. Behaviorsoft reserves the right to place advertisements or messages from third parties on free claimed listings web pages as well as free versions of the Services. Such advertisements or messages from third parties may be visible to users as well as Customers.
d. Aggregation and De-Identified Data.
Notwithstanding anything to the contrary contained in the Service Agreement, Behaviorsoft may use a Customer’s Customer Information (including protected health information and personally identifiable information) to provide such Customer with data aggregation services (as that term is defined by HIPAA). In addition, Behaviorsoft may use protected health information and personally identifiable information to create de-identified data in accordance with 45 CFR 164.514(a)-(c) retaining any and all ownership claims related to the de-identified data it creates from protected health information and personally identifiable information. Behaviorsoft may use, during and after the termination of the Service Agreement, all aggregated de-identified information and de-identified data for purposes of enhancing the Services, technical support, analytics, reporting, and research and development, all in compliance with HIPAA, including without limitation the limited data set and de-identification of information regulations.
- WARRANTY/SERVICE LEVEL AGREEMENT/DISCLAIMERS
Behaviorsoft will use commercially reasonable efforts to maintain Services uptime of ninety-nine and a half percent (99.5%), excluding Services maintenance periods. Behaviorsoft utilizes Google Cloud Platform (GCP) and has no control over downtime because of AWS issues.
b. Services Maintenance
In order to maintain the operation of the Services, Behaviorsoft conducts regularly scheduled maintenance and may conduct other maintenance at any time and without notice to Customer. Customer agrees any maintenance is for Customer’s benefit in use of the Services and any delays in Services availability while maintenance is completed are an agreed upon consequence of utilizing the Services.
c. NO MEDICAL OR OTHER ADVICE PROVIDED BY BEHAVIORSOFT
Customer expressly agrees that the Services, including any customer support, does not and shall not constitute providing business advice, billing advice, medical advice, medical or diagnostic services, or prescribing medication. Use of the Services is not a substitute for the business judgment, and professional judgment of health care providers in diagnosing and treating patients and operating a company. Customer agrees that it is solely responsible for verifying the accuracy of patient information (including, without limitation, obtaining each patient’s medical and medication history and allergies, and retaining medical records), obtaining each patient’s consent to use the Services where required (including without limitation the patient portal portion of the Services), and for all its decisions or actions with respect to the medical billing, medical care, treatment, and well-being of its patients, including without limitation, all of Customer’s acts or omissions. Any use or reliance by Customer upon the Services will not diminish that responsibility. Customer assumes all risks associated with Customer’s use of the Services for the treatment of patients and submission of medical claims. Neither Behaviorsoft nor its licensors assume any liability or responsibility for damage or injury (including death) to Customer, a patient, other person, or tangible property arising from any use of the Services.
d. CUSTOMER’S COMPLIANCE WITH MEDICAL RETENTION LAWS, PRIVACY LAWS AND PATIENT RECORDS ACCESS
Customer is responsible for understanding and complying with all state, federal and applicable privacy laws related to retention of medical records, patient access to information and patient authorization to release data. Customer agrees that it will obtain any necessary patient consent prior to using the Services (including without limitation the patient portal portion of the Services) and will apply settings to exclude information from availability in the patient portal as necessary to comply with state, federal law or applicable privacy laws. This includes Customer’s agreement to ensure reasonable policies and procedures are in place to protect login and account access to the Services.
e. Disclaimer of Warranties
THE SERVICES AND ANY OTHER SERVICES OR MATERIALS PROVIDED BY BEHAVIORSOFT UNDER THE SERVICE AGREEMENT ARE PROVIDED “AS IS” AND BEHAVIORSOFT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. BEHAVIORSOFT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, BEHAVIORSOFT MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED BY BEHAVIORSOFT UNDER THE SERVICE AGREEMENT, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR THAT IT WILL BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE, OR OPERATE AS INTENDED IF MODIFIED BY YOU, ANY THIRD-PARTY, OR BY US TO YOUR SPECIFICATIONS. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT BEHAVIORSOFT AND ITS THIRD-PARTY LICENSORS ARE NOT LIABLE FOR THE DEFAMATORY, INFRINGING, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD PARTIES OR USERS OF THE SERVICES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH CUSTOMER. BEHAVIORSOFT FURTHER MAKES NO WARRANTY THAT ITS SERVICES WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT BEHAVIORSOFT, ITS AFFILIATES AND THIRD-PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE SERVICES OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST BEHAVIORSOFT FOR DISSATISFACTION WITH THE SERVICES IS TO CEASE YOUR USE OF THE SERVICES SUBJECT TO CONTRACTUAL COMMITMENTS. ANY BENCHMARK DATA OR BENCHMARK REPORTS PROVIDED BY BEHAVIORSOFT OR ACCESSED THROUGH THE SERVICES ARE PROVIDED “AS IS” AND BEHAVIORSOFT SHALL HAVE NO LIABILITY WITH REGARD TO THEIR ACCURACY, CURRENTNESS, OR COMPLETENESS. BEHAVIORSOFT SHALL HAVE NO LIABILITY FOR OPERATIONAL OR PERFORMANCE ISSUES IN THE SERVICES IF YOU FAIL TO MAINTAIN THE MOST CURRENT SOFTWARE VERSION OR USE SOFTWARE PLATFORMS, BROWSERS OR DEVICES THAT ARE NOT SUPPORTED BY BEHAVIORSOFT IN ACCORDANCE WITH SUPPORTED BROWSER AND DEVICE POLICY. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION. WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, YOU AGREE THAT THEY WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION PERMITTED BY LAW.
f. Third Party Products and Services
If when using the Services, you are not required to enter into a separate license for third-party technology and content, then we have obtained the right to provide you with such third-party technology and content. If you are required to enter into a separate license for such third-party technology or content, then you are responsible for complying with such license. The third-party owner, author or provider of such third-party technology or content retains all ownership and intellectual property rights in, to and under such third-party technology or content. If you choose to use a third-party application with a Service, you grant us permission to allow the third-party application and its provider to access Customer Content to the extent required for the interoperation of that third-party application with the Service. We are not responsible for any disclosure, modification, or deletion of Customer Content resulting from such access. We cannot guarantee the continued availability of third-party application features and may cease providing them without any liability to you.
Behaviorsoft products may include access to content, services and products developed by third parties, such as training or course materials, studies, practice guides or best practices, industry data, etc. (“Third Party Content”). In addition, parties other than Behaviorsoft may be authorized to sell Third Party Content, and render services through Behaviorsoft products and Services. Behaviorsoft is not responsible for examining, qualifying or evaluating in any manner, and we do not make any representations or warranties regarding, any of these third parties or the Third Party Content that they provide. Customer agrees that it shall use such Third Party Content at its own risk and that Behaviorsoft shall not have any responsibility or liability whatsoever for the actions or Third Party Content sold by, posted by, provided by, or otherwise made available from, any third-party on Behaviorsoft’s products or Services.
Websites maintained by Behaviorsoft may contain links to websites owned or operated by parties other than Behaviorsoft. Such links are provided for your reference only. Behaviorsoft does not control outside websites and is not responsible for their content. Behaviorsoft’s inclusion of links to an outside websites does not imply any endorsement of the material on the site or, unless expressly disclosed otherwise, any sponsorship, affiliation or association with its owner, operator or sponsor, nor does Behaviorsoft’s inclusion of the links imply that Behaviorsoft is authorized to use any trade name, trademark, logo, legal or official seal or copyrighted symbol that may be reflected in the linked website.
g. Consulting Services.
Behaviorsoft may provide data conversions, customizations, program modifications, training, or other related consulting services (“Consulting Services”). Consulting Services shall be provided in accordance with an applicable Customer Order. Consulting Services may be delivered remotely or at your site. If Consulting Services are delivered at your site, in addition to the payment of applicable Consulting Services fees, you shall reimburse us for all reasonable travel and out-of-pocket expenses incurred in connection with the provision of such Consulting Services. Behaviorsoft shall retain all ownership rights to any and all work product resulting from or arising out of Consulting Services excluding any pre-existing technology or materials supplied by you for incorporation into such work product. Behaviorsoft grants you a non-exclusive, non-transferable, non-assignable license to use such work product, solely to the extent necessary to permit you to use the work product in connection with the Services for the applicable Term. You acknowledge that nothing in this Service Agreement shall restrict or limit us from performing similar services for any third-party. You agree to cooperate and work in good faith with us to enable us to timely perform Consulting Services, including, without limitation, by timely responding to our inquiries, providing reasonably requested materials, and providing access to facilities, equipment, and personnel as shall be reasonably required.
a. Mutual Confidentiality
It is understood that each Party will likely receive confidential, proprietary and/or sensitive information (“Confidential Information”) from the other in conjunction with the Services contemplated by the Service Agreement. Each Party shall consider any information received from the other Party, whether written or verbal, as Confidential Information unless such information shall clearly and explicitly be designated otherwise. Customer expressly agrees that the user interfaces, workflows and content provided by Behaviorsoft within the Services that are not otherwise made publicly available by Behaviorsoft constitute Confidential Information.
b. No Other Purpose
Behaviorsoft and Customer each agree not to use any Confidential Information disclosed to it by the other Party for any purpose other than those contemplated by the Service Agreement.
c. Required Parties and Limitation on Disclosure
Neither Party shall disclose or permit disclosure of any Confidential Information of the other Party to third parties or to employees of the Party receiving Confidential Information, other than directors, officers, employees, consultants, third-party service providers, and agents who are required to have the information for support of the purposes of the Service Agreement and are subject to obligations of confidentiality and limited use no less stringent than those set forth in these Terms.
d. Degree of Care
Each Party shall take all reasonable measures to protect the confidentiality of and avoid disclosure or use of Confidential Information of the other Party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under these Terms to have any such information. Such measures shall include, but not be limited to, the highest degree of care that the receiving Party utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care.
e. Return or Destruction of Confidential Information
Following termination of the Services Agreement and upon request of the disclosing Party, the receiving Party shall return or certify the destruction of any and all Confidential Information of the other Party then in its possession. The Party receiving such request will confirm in writing within ten (10) business days that it has complied with this requirement. If the return or destruction of Confidential Information is not commercially feasible, then the receiving party hereby agrees to maintain such Confidential Information in accordance with the terms of this Service Agreement for a period of at least five (5) years following termination.
f. Exceptions to Confidential Information
Notwithstanding anything contained in this Section 5 to the contrary, the term “Confidential Information” shall not be deemed to include information which:
- is or subsequently becomes publicly available without the breach of any obligation owed to the disclosing party;
- prior to disclosure hereunder is within the possession of the receiving party, provided that such Confidential Information is not the subject of another confidentiality agreement with or other obligation of secrecy to the disclosing party, as evidenced by its contemporaneous written records;
- is disclosed with the prior written approval of the disclosing party;
- is independently developed by the receiving party without any breach of these Terms, as evidenced by its contemporaneous written records;
- is obligated to be produced under order of a court of competent jurisdiction or a valid administrative, congressional, or other subpoena, civil investigative demand or similar process, provided, however, that upon issuance of any such order, subpoena, demand or other process, the receiving party shall promptly notify the disclosing party so as to allow the potential opportunity to obtain a protective order; or
- is necessary to establish rights or enforce obligations under the Service Agreement.
6. PROPRIETARY RIGHTS
a. Reservation of Rights by Behaviorsoft
The Services and all software, workflow processes, user interface, designs, know-how and other materials and technologies included in or provided by Behaviorsoft as part of the Services (“Proprietary Property”), including all Proprietary Property protected by copyrights, trademarks, or other intellectual property protections, are the sole and exclusive property of Behaviorsoft and its licensors, and except for the rights to use the Services provided under the Service Agreement, all right, title and interest in and to the Proprietary Property, including all associated intellectual property rights, remain only with Behaviorsoft and its licensors. Customer expressly agrees that nothing in the Service Agreement is intended to grant Customer any rights to the Proprietary Property or any other Behaviorsoft intellectual property unless expressly granted in the Service Agreement and that all rights to Proprietary Property and intellectual property are expressly reserved by Behaviorsoft and its licensors. Customer acknowledges and agrees that Customer is solely responsible for complying with the applicable restrictions on use of all Proprietary Property, copyrighted materials and trademarks that Customer sees, hears, and uses through the Services. Customer understands that any unauthorized use of such intellectual property would result in irreparable injury for which money damages would be inadequate. Customer agrees that it shall promptly inform Behaviorsoft if it becomes aware of any unauthorized use of Behaviorsoft’s Proprietary Property. Customer further acknowledges that, in the event of any such unauthorized use, Behaviorsoft or the applicable intellectual property owner will have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief to prevent any such unauthorized use. Customer agrees that this paragraph shall survive the termination of this Service Agreement.
7. LIMITS ON LIABILITY.
a. Exclusion of Damages
IN NO EVENT WILL BEHAVIORSOFT BE LIABLE UNDER OR IN CONNECTION WITH THE SERVICE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, OR (iii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER BEHAVIORSOFT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF BEHAVIORSOFT UNDER OR IN CONNECTION WITH THE SERVICE AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO BEHAVIORSOFT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR HAVE LEGISLATION, WHICH RESTRICTS THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION MAY NOT BE APPLICABLE TO YOU.
BY ACCESSING THE BEHAVIORSOFT SERVICES SUBJECT TO THESE TERMS OF SERVICE, CUSTOMER UNDERSTANDS THAT CUSTOMER IS WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTOOD, AND HEREBY EXPRESSLY WAIVES, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST MATERIALLY AFFECT HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Customer shall indemnify, defend, and hold harmless Behaviorsoft, its affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any actual or threatened third party claims (including without limitation by governmental agencies), demands, damages, costs, penalties, fines, regulatory actions and expenses (including reasonable attorneys’ fees and costs incurred by Behaviorsoft’s counsel of choice) arising out of or related to:
- the use of the Services by Customer,
- Customer’s breach of any term in the Service Agreement,
- Any actual or threatened claim that Customer Content infringes on a third-party’s intellectual property rights,
- any unauthorized use, access or distribution of the Services by Customer, or
- violation of any individual’s privacy rights related to information submitted under Customer’s account, or fraudulent, invalid, duplicate, incomplete, unauthorized, or misleading information submitted under Customer’s account or by or on behalf of Customer.
9. GOVERNING LAW AND ARBITRATION
a. Governing Law and Venue
The Service Agreement is governed by the internal laws of the State of Delaware (without regard to conflicts of law principles). Subject to the further provisions of this Section 9 the parties expressly agree that the state and federal courts sitting in New Castle County, Delaware shall have exclusive jurisdiction in any action arising out of or connected in any way to the Service Agreement or use of or access to the Services, and each party consents to personal jurisdiction of and venue in such matter.
b. General Arbitration Process
Any dispute or claim that may arise between the parties relating in any way to or arising out of the Service Agreement or use of or access to the Service (each, a “Claim”), shall be resolved exclusively through final and binding arbitration (rather than in court) under the then-current Commercial Arbitration Rules of the American Arbitration Association in New Castle County, Delaware. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction within New Castle County, Delaware.
c. Enforcement and Equitable Relief
Notwithstanding Section 9.b., Behaviorsoft may enforce its rights under the Service Agreement, including without limitation, to collect any overdue invoiced amounts, in any federal or state court of competent jurisdiction.
Notwithstanding anything above, Behaviorsoft may seek and obtain injunctive and equitable relief in any court of competent jurisdiction within New Castle County, Delaware without restriction or required process in these Terms.
d. Prohibition of Class and Representative Actions
EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL PARTY BASIS, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. AN ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, CLASS OR REPRESENTATIVE PROCEEDING. EACH PARTY AGREES THAT IT SHALL NOT JOIN ANY CLASS ACTION PROCEEDING AGAINST THE OTHER PARTY. THE PROVISION OF THIS SECTION 9.d. MAY BE WAIVED EXCLUSIVELY BY BEHAVIORSOFT.
10. OTHER TERMS
a. No Solicit or Hire Clause
Customer acknowledges that Behaviorsoft invests considerable time and expense in the training of its employees and independent subcontractors in the services to be provided under the Service Agreement. Customer agrees that for the full term of the Service Agreement, and for two (2) years after the Service Agreement’s termination, Customer will not solicit or employ in any capacity, whether as a direct employee, independent contractor or as a representative of another company providing similar services to Customer as Behaviorsoft, any person employed by Behaviorsoft at any time during the term of the Service Agreement whose duties involve providing the Services, whether for Customer or other Behaviorsoft customers.
b. End of Life Policy
Behaviorsoft maintains end of life policies with respect to the Services as published on our websites from time to time or included with these Terms. Behaviorsoft may amend or modify such policies with or without notice to you, and you are responsible for reviewing such policies as in effect from time to time. Our end of life policies is incorporated herein by reference and are binding upon you to the same extent as if set forth herein.
c. Consent to Electronic Notice, Communications and Transactions
For purposes of messages and notices regarding the Services (including without limitation, collections and payments issues), Behaviorsoft may send email notices to the email address associated with Customer's account as provided by Customer (“Customer’s Email Address”) or send to Customer directly by notifications sent through the Services. If Customer desires to update Customer’s Email Address, it shall send notice thereof to contracting@Behaviorsoft.com.
The Parties agree that notices, consents and approvals required or permitted under the Service Agreement shall be sent (i) by Customer, to Behaviorsoft at contracting@Behaviorsoft.com, and (ii) by Behaviorsoft, to Customer at Customer’s Email Address.
d. Entire Agreement and Changes
The Service Agreement constitutes the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in these Terms. No representation, promise or inducement not included in these Service Agreement is binding. Behaviorsoft may update or change the Service Agreement from time to time in order to reflect changes in the Services, changes in the law, or for other reasons as deemed necessary or advisable by Behaviorsoft. The effective date of the Service Agreement will be reflected in the “Last Revised” entry at the top of the Service Agreement. Customer’s continued use of the Services after any such change shall constitute Customer’s consent to such change(s). Customer may not amend or modify any term of the Service Agreement without the written consent of Behaviorsoft. Nothing herein is intended nor shall it serve to prevent Behaviorsoft from exercising the rights found in the Service Agreement, including the right to amend or modify fees and these Terms. Customer agrees that by continuing to access or use the Services it accepts any modified terms or fees.
If Customer provides feedback or suggestions about the Services, then Behaviorsoft and its representatives may use, make derivative works and otherwise exploit such information without obligation to Customer.
f. Beta Features
If Customer accesses any beta features of the Services, Customer acknowledges that: (i) such features have not been made commercially available by Behaviorsoft; (ii) such features may not operate properly, be in final form or fully functional; (iii) such features may contain errors, design flaws or other problems; (iv) it may not be possible to make such features fully functional and such features may not ultimately be made commercially available; (v) use of such features may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss; (vi) such features may change e; and (vii) Behaviorsoft is not obligated in any way to continue to provide or maintain such features for any purpose in providing the ongoing Services. These beta features are provided AS IS, with all faults. Customer assumes all risk arising from use of such features, including, without limitation, the risk of damage to Customer’s computer system or the corruption or loss of data, and agrees that Behaviorsoft shall have no liability with respect to Customer’s use of such beta features whatsoever.
g. No Assignment
Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Service Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Behaviorsoft’s prior written consent which shall not be unreasonably withheld.
If any provision of the Service Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Service Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify the Service Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
i. Separate Entities
Nothing herein shall be construed as creating a partnership or joint venture between Customer and Behaviorsoft. The parties expressly agree that they are separate and distinct business entities whose entire relationship is governed by the Service Agreement. Any rights not expressly granted in the Service Agreement are expressly reserved by Behaviorsoft.
j. Survival of Terms
All terms survive termination of the Service Agreement that by their nature survive for a party to assert its rights and receive the protections of this Terms Agreement. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
k. Customer Name
Behaviorsoft may use Customer's name and logo in customer lists and related promotional materials describing Customer as a customer of Behaviorsoft, which use shall be in accordance with Customer’s trademark guidelines and policies, if any, provided to Behaviorsoft.
l. Representation and Warranties
The Parties represent and warrant that they have full right, power and authority to enter into the Service Agreement and have the financial wherewithal to perform hereunder. Neither party makes any representation or warranty except to the extent expressly set forth in the Service Agreement.
The failure or delay in exercising any power or right under the Service Agreement shall not operate as a waiver thereof, nor will any single or partial exercise of any such power or right preclude any other exercise of a right or power. No waiver will be effective unless in writing and signed by the Party agreeing to said waiver.
n. Force Majeure
To the extent that either Party is prevented or delayed from timely completing its obligations under these Terms due to accidents, riots, strikes, epidemics, Acts of God, acts of war or terrorism, or any other condition beyond the Party’s reasonable control other than with respect to a Customer’s obligation to pay fees owed pursuant to a Customer Order (each, a “Force Majeure Event”), the Party will notify the other in writing as soon as practicable following the commencement of such Force Majeure Event and shall be alleviated from the obligations it has been prevented from performing until the Force Majeure Event is alleviated and shall not be deemed to be in breach of the Service Agreement.
o. Third Party Beneficiaries
The Service Agreement is for the sole benefit of the parties hereto and their respective permitted successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Service Agreement.
Only persons 18 years and older may contract with Behaviorsoft. If you are under 18, you may use the Behaviorsoft Services only with involvement and permission of a parent or guardian. Behaviorsoft reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
You agree that you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Behaviorsoft’s employees or agents in connection with this Service Agreement or any Purchase Order. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify Behaviorsoft at legal@Behaviorsoft.com.
r. Copyright Complaints
Behaviorsoft respects the intellectual property of others, and we ask our customers to do the same. Behaviorsoft may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of Customers who may be infringing the intellectual property rights of third parties. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to Behaviorsoft’s Agent for Notice in accordance with this Section 10.r.:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Behaviorsoft’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows: By mail: Behaviorsoft, LLC, Attn: Peter Leiner, 6451 N. Federal Highway Fort Lauderdale, Florida 33008; By phone: (800) 939-5414; By fax: (954) 380-8612; By email: legal@Behaviorsoft.com.
s. Effect of Headings
The paragraph and section headings of these Terms are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of any paragraph or section of these Terms and in no way affect these Terms.