TBH Technology (AutismPro)
Terms of Use
License and Services Agreement
1. Scope.
These General Terms and Conditions of Service ("Terms") shall apply to all customer purchase orders and amendments thereto (collectively referred to as "Order") issued by a Licensee.
1.1 Nature of Relationship.
WHEREAS: TBH TECHNOLOGY is an application service provider and provides certain services (the "Services") involving the use of AUTISMPRO. WHEREAS: Licensee desires to subscribe to AUTISMPRO and procure certain Services as set forth in this agreement and TBH TECHNOLOGY is willing to provide to Licensee, access to AUTISMPRO through the internet (from "www.autismpro.com" and "www.autismpro.net") and Services on the terms and conditions specified in this License and Services Agreement. TBH TECHNOLOGY and licensee are sometimes referred to as the "Parties" or individually as the "Party".
2. Licenses.
Upon TBH TECHNOLOGY's written acceptance of an Order or Purchase Order from Licensee, TBH TECHNOLOGY shall grant and does hereby grant to the Licensee a non-exclusive, nontransferable license to access and use the Licensed content, with the number of Quantities, Sites, Schools, or Units, all as specified in such Order or Purchase Order, and to use the Documentation, for the term specified in this agreement, solely for the Licensee's internal business purposes, subject to the payment of a Subscription Fee as provided in the applicable Order and to all the terms and conditions of this Agreement
2.1 Price and Payment.
Licensee shall pay TBH TECHNOLOGY the License Fees and Maintenance Fees for any Licensed AUTISMPRO in accordance with the payment schedules set forth on the applicable License and Services Order or Purchase Order. Unless otherwise agreed to in a fully executed License and Services Order or Purchase Order arising under this Agreement, all payments are due within thirty (30) days of the date of TBH TECHNOLOGY's invoice. Payments not made when due shall be subject to late charges of the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. At any time during the term of this agreement. TBH TECHNOLOGY may not adjust the price at the time of renewal for any Services in effect at the time by more than 7 percent per annum. (c) Licensee shall be notified and invoiced annually 60-90 days prior to their agreement end date. For orders identifying prices which utilize a site count or individual user count, TBH TECHNOLOGY reserves the right to audit the AUTISMPRO usage and access by User or Site Count on an annual basis on or near the contract signing date as well as anytime the Licensee indicates that the Site or User Count has increased more than the original license Count. Should TBH TECHNOLOGY discover the number of Users or Sites accessing AUTISMPRO to be larger than the number(s) identified in this agreement, TBH TECHNOLOGY will notify the licensee and invoice Licensee to reflect the revised Count and TBH TECHNOLOGY shall provide a revised Order to Licensee.
3. Licensee Information, Ownership, Confidentiality and Use.
3.1
TBH TECHNOLOGY or its suppliers, as applicable, retain ownership of AUTISMPRO, its Content, the Documentation, all other materials provided by TBH TECHNOLOGY hereunder, and all right, title and interest therein, including, without limitation, all patents, copyrights, trade secrets, trademarks and other proprietary rights. Licensee acknowledges and agrees that: (a) it is acquiring only a limited right to use certain copies of AUTISMPRO as licensed hereunder; (b) it will not claim or assert any right or title to any such materials or attempt to transfer any title to any third parties; and (c) it will not remove, alter or destroy any proprietary, trademark, patent or copyright markings placed upon or contained within the Licensed AUTISMPRO, the Documentation, or any related materials.
3.2
"Confidential Information" means this Agreement any addenda hereto signed by both parties, all Licensed AUTISMPRO, Documentation, information including application content, models, logic diagrams, data and source code of AUTISMPRO, or any adaptations of the foregoing, all knowledge and know-how inherent to AUTISMPRO as well as all knowledge and know-how that is applied to the configuration of the Licensed AUTISMPRO and any other proprietary information supplied to Licensee by TBH TECHNOLOGY hereunder.
3.3
Licensee acknowledges that the Confidential Information constitutes valuable trade secrets and Licensee agrees that it shall use the Confidential Information solely in accordance with the provisions of this Agreement and will not disclose such Confidential Information, directly or indirectly,to any third party without TBH TECHNOLOGY prior written consent. Licensee agrees to exercise a high standard of care in protecting the Confidential Information from unauthorized use and disclosure. Without limiting the foregoing, Licensee shall adopt whatever measures may be required to limit access to the Confidential Information to those of its employees that are subject to non-disclosure obligations and who require such access in order to use the Licensed AUTISMPRO in a manner consistent with this Agreement.
3.4
TBH TECHNOLOGY acknowledges that, in the course of its performance of this Agreement, it may become privy to certain information that Licensee deems as proprietary and confidential. TBH TECHNOLOGY agrees to treat all such information that is identified as proprietary and confidential in a confidential manner and will not disclose or permit to be disclosed, the same, directly or indirectly, to any third party without Licensee's prior written consent, except that TBH TECHNOLOGY may disclose such information to its contractors or agents who require such information in order to provide Contracted Services and who are subject to non- disclosure obligations consistent with those defined in this Section and TBH TECHNOLOGY's Privacy Policies. However, TBH TECHNOLOGY bears no responsibility for safeguarding information that is publicly available, already in TBH TECHNOLOGY possession and not subject to confidentiality obligation, obtained by TBH TECHNOLOGY from third parties without restrictions on disclosure, independently developed by TBH TECHNOLOGY without reference to such information, or required to be disclosed by order of a court or other governmental entity.
3.5
In the event of any breach of Section 3.3 or 3.4 each party acknowledges that the non-breaching party would suffer irreparable harm and shall therefore be entitled to seek injunctive relief.
4. Licensee Responsibilities.
Licensee shall be responsible for (a) maintaining its equipment, telephone lines, internet access, hardware, software, and other materials necessary for access to and use of the AUTISMPRO Site(s) and Service; (b) all activities that occur under Licensee's account including inputting, maintaining, and managing accurate information and ensuring that Licensee exits or logs-off from Licensee's AutismPro account at the end of each session of use; (c) maintaining the confidentiality of its password(s); and (d) notifying TBH TECHNOLOGY of any unauthorized use of Licensee's password(s) or account or any other breach of security that is known or suspected by Licensee.
5. Parties Conduct.
The parties agree to abide by all applicable local, state, and federal laws, regulations, statutes, rules and ordinances, in connection with the Sites and Service. Without limiting the foregoing, the parties shall not use the Sites and/or Service to: (a) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) transmit through or post on the Sites or Service material of any kind or nature that is unlawful, defamatory, threatening, harmful to minors in any way, invasive of another's privacy, obscene or otherwise objectionable; (c) transmit any material that may infringe the intellectual property rights or other rights of third parties,including trademark, trade secret, copyright or right of publicity; (d) intentionally transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots; (e) interfere with or disrupt servers or networks connected to the Sites and/or Service; (f) attempt to gain unauthorized access to the Sites and/or Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; or (g) harass or interfere with another user's use and enjoyment of the Sites and/or Service.
6. Indemnification.
6.1
TBH TECHNOLOGY shall indemnify Licensee its licensors and information providers, and its subsidiaries, affiliates, officers, directors, all employees, attorneys, and agents from and against any and all claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of (a) any active negligence on the part of TBH TECHNOLOGY's employees or agents; (b) breach of the Order and/or (c) violation of any applicable law, provided, however, that Licensee shall not be indemnified from any claim, demand, loss, cause of action, liability, cost or expense, which results from the active negligence on the part of Licensee or its officers, employees, or agents.
6.2
Notwithstanding the provisions of Section 6.1, TBH TECHNOLOGY assumes no liability for: (a) infringement resulting from use of AUTISMPRO with any combination, method or process; (b) infringement involving the modification or servicing of AUTISMPRO, or any part thereof, by an entity other than TBH TECHNOLOGY; (c) infringement arising from uses of AUTISMPRO which do not comply with the uses permitted under this Agreement.
6.3
THE FOREGOING PROVISIONS OF THIS SECTION 6 STATES THE ENTIRE LIABILITY AND OBLIGATIONS OF TBH TECHNOLOGY AND THE EXCLUSIVE REMEDY OF LICENSEE AND ANY OTHER ENTITY, WITH RESPECT TO ANY ALLEGED INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS BY THE LICENSED AUTISMPRO.
6.4
Licensee shall indemnify and defend TBH TECHNOLOGY and hold it harmless against any claims asserted by third parties that arise out of Licensee's use of AUTISMPRO not in accordance with this Agreement.
7. Warranty.
7.1
TBH TECHNOLOGY represents and warrants solely to Licensee that each item detailed in this Order will perform substantially in accordance with its Documentation for a period of one (1) year from the date of issuance of a user ID and password by TBH TECHNOLOGY. All warranty claims not made in writing and received by TBH TECHNOLOGY within such period shall be deemed waived. Licensee shall have no authority to extend such warranty to any third party. TBH TECHNOLOGY does not warrant that AUTISMPRO will operate error-free. TBH TECHNOLOGY will take all necessary reasonable steps within their control to maintain software that is free of computer viruses or other harmful features. If use of AUTISMPRO by Licensee or its authorized users results in the need for servicing or replacing equipment or data, TBH TECHNOLOGY is not responsible for any of those costs. TBH TECHNOLOGY shall use commercially reasonable efforts to make AUTISMPRO continuously available to Licensee and to promptly restore availability if it is within TBH TECHNOLOGY's reasonable control. Accordingly, TBH TECHNOLOGY makes no representations, warranties, guarantees or covenants with respect to the availability of AUTISMPRO nor assumes any liabilities whatsoever that might arise out of Licensee's use of AUTISMPRO or unavailability of the AUTISMPRO to Licensee.
7.2
Licensee assumes all responsibility and risk of use by its authorized users, of AUTISMPRO. The licensed AUTISMPRO and all content on the AUTISMPRO sites or TBH TECHNOLOGY websites are supplied "as is" and "as available". TBH TECHNOLOGY makes no representations about the accuracy, reliability, completeness, or timeliness of the information contained in AUTISMPRO or its websites. TBH TECHNOLOGY does not guarantee any particular results will be obtained from use of AUTISMPRO. TBH TECHNOLOGY may make periodic changes to the Licensed AUTISMPRO, and may do so at any time in its sole discretion with reasonable notice to Licensee.
7.3
THE EXPRESS WARRANTY SET FORTH IN THIS SECTION 7 CONSTITUTES THE SOLE WARRANTY WITH RESPECT TO AUTISMRPO AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability.
IN NO EVENT SHALL TBH TECHNOLOGY, ITS SUPPLIER'S, SUBCONTRACTOR'S OR REPRESENTATIVE'S AGGREGATE LIABILITY TO LICENSEE OR ANY OTHER ENTITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS RECEIVED BY TBH TECHNOLOGY HEREUNDER. IN NO EVENT SHALL TBH TECHNOLOGY, ITS SUPPLIERS, SUBCONTRACTORS OR REPRESENTATIVES BE LIABLE TO LICENSEE OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR RELIANCE DAMAGES, HOWEVER CAUSED, INCLUDING BUT NOT LIMITED TO LOST DATA, LOST PROFITS, LOSS OF USE, AND/OR BUSINESS INTERRUPTION, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT TBH TECHNOLOGY, ITS SUPPLIERS, SUBCONTRACTORS OR REPRESENTATIVES HAVE BEEN ADVISED OF THE TBH Technology (AutismPro) POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE TO THE ALLOCATION OF LIABILITY RISK SET FORTH IN THIS SECTION.
9. Term and Termination.
This Agreement shall continue in effect until terminated as provided for herein.
9.1
(a) With respect to AUTISMPRO, this Agreement shall remain in full force and effect for the entire purchased subscription period (as noted in the Agreement Information) unless terminated in writing any earlier by either party. (b) This agreement shall also be terminated in the event that either party materially breaches this agreement or any other Agreement, and fails to correct such breach within a thirty (30) day period after receipt of written notice thereof, provided that TBH TECHNOLOGY shall have the right to terminate this agreement and any other Agreement immediately upon written notice in the event Licensee breaches, any of its obligations under Section 2.
9.2
Upon the expiration or termination of this Agreement for a reason defined in Section 9.1 above: (a) all licenses granted hereunder shall terminate; and (b) Licensee and all TBH Technology Authorized Users shall cease using the Licensed AUTISMPRO. In such a situation, Licensee's data will remain on file for a period of three years (at no cost to Licensee).
10. Notice.
All notices, certificates, acknowledgments or other written communications (hereinafter referred to as "Notices") required to be given under this Agreement shall be in writing and shall be deemed to have been given and properly delivered if duly sent by electronic mail, mailed by certified or registered mail to the other Party at its address as provided in this Agreement or to such other address as either Party may, by written notice, designate to the other. Additionally, Notices sent by any other means (i.e., facsimile, overnight delivery, courier, and the like) are acceptable subject to written confirmation of both the transmission and receipt of the Notice.
11. General.
11.1
No amendment or modification hereof will be valid or binding upon the parties unless made in writing and signed by the duly authorized representatives of both parties.
11.2
The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other.
11.3
The license granted hereunder is personal in nature, as a result Licensee may not assign, sublicense, subcontract or delegate (each, an "Assignment") this Agreement or any of the rights or obligations described thereunder (by operation of law or otherwise) to any other party (the "Assignee") without the prior written consent of TBH TECHNOLOGY which, in addition to other cases in its discretion, shall not consent to an Assignment that shall cause any of the following consequences: (i) the Assignee is not reasonably likely to perform the obligations that are the subject of the Assignment; (ii) the Assignee is engaged, to any material extent, in any business that competes with the business of TBH TECHNOLOGY; or (iii) the Assignment is otherwise reasonably likely to materially and adversely affect the business or reputation of TBH TECHNOLOGY; or, (iv) the Assignment results in an expansion of the use rights of the Licensed AUTISMPRO. Any prohibited assignment or sublicense will be null and void. Subject to the foregoing, this Master Agreement will be binding upon and will inure to the benefit of the parties' permitted successors and/or assignees. For purposes of this Section 11.4, any corporate reorganization, including but not limited to a merger, consolidation or acquisition shall be deemed an Assignment.
11.4
Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
