BEHAVIOR SCIENCE TECHNOLOGY
END USER LICENSE AGREEMENT
Last updated 22-May-2024
This End User License Agreement (this “Agreement”) sets forth the terms and conditions for the provision of access to the Platform (defined below) by Behavior Science Technology Inc. (“BST”) for the entity (“Customer”) executing any Order (defined below) to which this Agreement is attached or incorporated by reference. This Agreement may be attached to, or incorporated by reference within, multiple Orders. This Agreement becomes binding and effective on the date Customer executes an initial Order (as defined below) (the “Effective Date”).
1. Definitions.
The following definitions used in this Agreement have the corresponding meanings. Additional definitions appear throughout the substantive provisions of this Agreement:
(a) “Active End User” shall mean a unique End User with an End User Login that is not disabled.
(b) “Documentation” means the applicable specifications and user documentation accompanying Platform and provided by BST to Customer and End Users.
(c) “End User” means an individual or specific Customer function or role authorized by Customer to access the Platform, as identified through an individual End User Login.
(d) “End User Login” a unique username and password provisioned on an End User-by-End User basis.
(e) “Order” means the details regarding Customer’s subscription to use the Platform under this Agreement, including (as and if applicable) the Fees associated with Customer’s use of the Platform and the number of End Users initially licensed and permitted to access the Platform, as set forth in the document attaching or referencing this Agreement, whether executed or otherwise agreed between Customer and BST, or between Customer and an authorized BST reseller or channel partner (a “BST Partner”). End Users in addition to those licensed through Customer’s initial Order can also be licensed through (as applicable) BST or the BST Partner (“Additional End Users”), the purchase of which shall be deemed a separate Order, subject to the terms and conditions of this Agreement.
(f) “Platform” means BST’s software Platform offering set forth in the associated Order, including underlying technology and Documentation.
(g) “Subscription Term” means the duration that Customer’s End Users are authorized and licensed to access and utilize the Platform, as set forth in the associated Order.
(h) “Third-Party Services” means connections and/or links to third party websites and/or products or services that BST enables Customer to integrate with and access through the Platform, including via application programming interfaces, workflows or webhooks.
2. Platform and Support.BST shall provide the Platform set forth and described in each Order. The Order shall set forth, as applicable: (a) Customer’s identification and contact information; (b) Subscription Term; (c) the number of End Users initially licensed and permitted to access the Platform (if applicable); and (c) applicable Fees (if applicable). Customer acknowledges and agree that Customer is solely responsible for decisions made and actions taken with respect to Customer’s End User’s use of the Platform. In connection with Customer’s use of Platform, BST will provide e-mail and on-line support, in accordance with BST’s Standard Support Policy available at https://www.behaviorsciencetech.com/bstperform-support. BST may also provide links or references to Third-Party Services in the Documentation and/or within the Platform. Such Third-Party Services are not provided by BST, and BST is neither liable nor responsible for their functioning, results or effects. Customer is responsible for complying with all applicable third-party terms, policies and licenses governing Customer’s access and use of Third-Party Services. Customer acknowledges and agrees that any services other than support services, including professional or consulting services such as assessment services, product implementation or configuration, and/or training shall only be provided by BST to Customer pursuant to the terms and conditions of a separate agreement between BST and Customer.
3. Fees and Payment.All charges and fees set forth in an Order (“Fees”) are due and payable as specified in the associated Order, and are non-refundable, except as expressly set forth in this Agreement, provided, however, that if the Order is entered between Customer and a BST Partner, any Fees and payment terms and conditions shall be as set forth in such Order, and this Section 3 shall not apply to Customer’s access to the Platform under such Order. If applicable, additional End Users added by Customer during a Subscription Term through any method set forth in an Order (or otherwise subsequent to Customer’s initial Order) shall be authorized through the remainder of the then-current Subscription Term and any Fees with respect to any such additional End Users shall be prorated to reflect the number of days remaining in the Subscription Term during which such Additional End Users were activated. All Fees exclude any sales or use taxes associated with this Agreement and any Order, which shall be Customer’s responsibility to pay (other than taxes on BST’s income). Customer acknowledges and agrees that Customer is solely responsible for any such sales and use taxes that result from this Agreement and any Order. Unless otherwise set forth in the applicable invoice or Order (in which case Customer shall remit such taxes to BST along with the applicable Fees), Customer will remit any such taxes due directly to the appropriate governmental agency. Customer agrees to act in compliance with all state, federal and international laws, rules and regulations in connection with any such payment. In the event that Customer fails to pay any Fees when due, or Customer’s method of payment is declined or fails following authorization of Customer’s Order, BST may assess a late fee at the rate of one and one-half percent (1½%) per month (or the maximum interest allowable under applicable law, if less) on the Fees until satisfaction of payment. Customer is liable for all collection fees and expenses, including reasonable attorney fees, relating to and such Fees.
4. Term and Termination.
(a) Term. This Agreement shall commence on the Effective Date and shall continue for as long as a Subscription Term is in effect.
(b) Termination. Either party may terminate this Agreement and all Orders hereunder upon prior written notice to the other party if: (i) such other party materially breaches any term or condition of this Agreement or an Order and fails to cure such breach within thirty (30) days after delivery of written notice thereof; or (ii) such other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally and if applicable, BST may terminate Customer’s access to the Platform and this Agreement and all Orders hereunder if Customer’s agreement with BST Partner, or the associated Order, is terminated for any reason. BST may suspend Customer’s access to the BST Platform in the event that BST believes, in BST’s sole but reasonable discretion, that Customer uses the Platform for any purpose or in any manner that violates any local, state, or federal law or regulation, or any applicable laws or regulations of any foreign government, that violates or infringes the rights of any third party, or that constitutes a violation of BST’s Acceptable Use Policy then in effect, the current version of which is available for review at https://www.behaviorsciencetech.com/bstperform-aup. In the case of any such suspension, BST shall provide written notice as soon as reasonably practicable, and shall lift such suspension as soon as the reason for such suspension is remedied to BST’s reasonable satisfaction.
(c) Effects of Termination. Upon termination or expiration of this Agreement, all Orders and licenses set forth thereunder and hereunder shall terminate, and Customer’s right to access the Platform shall cease. Notwithstanding the foregoing, provided that BST has received any amounts due in connection with this Agreement and all Orders, BST will permit Customer to access the Platform, solely for the purpose of downloading Customer Materials (as defined below) for a period of thirty (30) days following the effective date of termination or expiration of this Agreement, provided that Customer’s access and use will continue to be otherwise subject to the terms and conditions of this Agreement and Customer shall not access or use the Platform other than to access and download such Customer Materials.
(d) Termination of BST’s Agreement with BST Partner. If applicable, in the event that the underlying agreement between BST and the BST Partner that entered into any Orders with Customer expires or is terminated, all such Orders shall immediately terminate as of the effective date of such expiration or termination. In such event, if Customer wishes to continue to access the Platform, Customer and BST shall either enter into a separate agreement with respect to such access, or enter into an Order under this Agreement to provide for such access.
5. Confidential Information.
To the extent a party (“Discloser”) discloses to the other party (“Recipient”) information in connection with this Agreement, whether disclosed prior to, on, or after the Effective Date, and which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information (collectively “Confidential Information”), the Recipient will protect such Confidential Information from unauthorized use, access or disclosure in the same manner as Recipient protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the Recipient may use the Discloser’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information solely to Recipient’s employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality no less restrictive than those set forth herein. The provisions of this Section 5 shall control over any non-disclosure agreement by and between the parties entered into prior to the Effective Date and any such non-disclosure agreement shall have no further force or effect with respect to the exchange of Confidential Information following the Effective Date. The foregoing shall not apply to information that: (a) is publicly known at the time of disclosure or subsequently becomes publicly known other than through a breach of this Section 5; (b) is lawfully received by Recipient from a third party not subject to confidentiality terms with the Discloser with respect to such information; or (c) was independently developed by the Recipient without reference to the Discloser’s Confidential Information, as established by the written records of the Recipient. In the event Discloser’s Confidential Information is required to be disclosed by Recipient under a legal requirement, Recipient shall: (i) give the Discloser reasonable written notice prior to disclosure pursuant to such requirement (unless prohibited by such requirement); (ii) use diligent efforts to limit disclosure and to obtain confidential treatment or a protective order and allow the Discloser to participate in the proceeding; and (iii) comply with any applicable protective order or equivalent. Customer acknowledges and agrees that any pricing terms, as well as any Documentation BST provides for or in connection with the Platform (in whatever form), as well as the Platform itself, shall be deemed BST’s Confidential Information.
6. Ownership, Security and Privacy of Customer Materials
(a) Customer Materials. As between Customer and BST, all information and materials provided to BST by Customer or on Customer’s behalf in connection with Customer’s use of Platform (collectively, “Customer Materials”), is and shall remain Customer’s property, including any modifications or derivative works thereof and, to the extent applicable, shall be deemed Customer’s Confidential Information. Customer hereby grants BST a limited license to use, copy, modify and create derivative works of and from Customer Materials, solely as necessary for BST to provide the Platform in accordance with the terms and conditions of this Agreement and any Order. Customer represents, warrants and covenants that it possess (and will possess) all necessary rights and permissions to provide the Customer Materials to BST for purposes of foregoing license. Customer acknowledges that provision of the Platform to Customer includes BST’s disclosure of Customer Materials to any BST Partner that has entered into an Order with Customer. Customer acknowledges that BST collects and aggregates anonymous data concerning Platform user use, behavior, traffic and other interactive and telemetric information. Such anonymous data does not identify Customer or any End User or other individual, and no such identity can be derived from the further processing of such data. Customer agrees that both during and after the Term, BST may retain and use all such anonymous data to develop, improve and market the Platform and other BST products and services. BST will implement and maintain industry-standard administrative, physical and technical safeguards to provide an appropriate level of security, confidentiality and integrity of Customer Materials.
(b) Compliance. Customer and BST each hereby agree to comply with all applicable national and international laws, regulations, notices, and guidelines relating to information privacy (collectively, “Data Privacy Laws”). To the extent that Customer discloses to BST any personal information of, or relating to, any individual, or other information subject to Data Privacy Laws (including in connection with Customer’s use of the Platform), if required by such laws, Customer will notify the affected individual or entity of the intended transfer to BST, and obtain specific consent from such individual or entity to such transfer. BST will treat all such information in accordance with its then-current Privacy Statement, located at https://www.behaviorsciencetech.com/bstperform-privacy.
7. License to Platform; BST’s Intellectual Property.
(a) BST Intellectual Property. BST owns all intellectual property rights in and to the Platform, including any and all modifications, enhancements, improvements, adaptations, translations, and derivative works thereof and thereto. Other than the limited license right to utilize the Platform, nothing contained in this Agreement shall be construed as granting Customer or any End User any rights in or to the Platform.
(b) Usage License. Subject to the terms and conditions of this Agreement, BST hereby grants Customer a limited scope, nonexclusive, nontransferable license for Customer to use and access the Platform for the number of End Users set forth in each Order, during the associated Subscription Term, solely for Customer’s business purposes and as may be further described in such Order. Customer may use any Documentation (in whatever medium) that BST provides with the Platform, solely in connection with Customer’s licensed use of the Platform. If applicable, access to and use of the Platform is restricted to the specified number of individual End Users permitted under Customer’s subscription to the Platform. Customer agrees and acknowledges that each End User Login shall only be used by one (1) designated individual End User. Customer further agrees and acknowledges that an End User Login cannot be shared or used by more than one individual, but that End User Logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Platform. Customer shall administer the registration and password access for End User Login credentials of Customer’s personnel through the functionality provided within the Platform.
(c) Restrictions. Customer shall not do, attempt to do, nor permit any person or entity to do, any of the following: (i) create or recreate the source code for any underlying software and technology relating to the Platform, or re-engineer, reverse engineer, decompile or disassemble any such underlying software and technology; (ii) copy, modify, adapt, translate or create derivative works based upon any such underlying software and technology; (iii) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in the Platform or any Documentation; or (iv) sublicense, sell, lease, rent, timeshare or otherwise transfer, or pledge as security, the Platform or its access thereto. All rights (including all intellectual property rights) to and/or with respect to any items, materials or services relating to the Platform not expressly licensed by BST hereunder, are expressly and exclusively retained by BST. BST shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Platform and BST’s services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or on Customer’s behalf in connection with this Agreement.
8. Warranties and Disclaimers.
(a) Warranties. BST warrants that: (i) the Platform will perform materially in accordance with the specifications set forth in the Documentation and in accordance with this Agreement; and (ii) BST will provide support services in a professional and workmanlike manner and in accordance with industry standards.
(b) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE PLATFORM OR SERVICES OR OTHERWISE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, OR OTHERWISE (INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE AND NON-INFRINGEMENT) ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS AGREEMENT, BST MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY THIRD-PARTY SERVICES, AND CUSTOMER ACKNOWLEDGES THAT BST DOES NOT WARRANT THAT THE PLATFORM: (i) WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (ii) OPERATE WITHOUT INTERRUPTION; (iii) ACHIEVE ANY INTENDED RESULT; (iv) BE ERROR FREE; OR (v) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH ANY THIRD-PARTY SERVICES. NO INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM BST OR THROUGH ANY RELATED SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9. Limitation of Liability.
EXCEPT FOR EITHER PARTY’S BREACH OF SECTION 6 OR SECTION 7, OR AMOUNTS PAID IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS HEREUNDER: (a) UNDER NO CIRCUMSTANCES WILL EITHER PARTY, ITS SUPPLIERS OR AFFILIATED PERSONS OR ENTITIES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING CLAIMS FOR LOSS OF DATA, USE OF OR INABILITY TO USE THE PLATFORM, INTERRUPTION IN USE OR AVAILABILITY OF DATA OR THE SPECIFIC RESULTS OBTAINED THROUGH THE USE OF THE PLATFORM) ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR REMEDY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE; AND (b) IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH CUSTOMER, BST, BST’S SUPPLIERS AND AFFILIATED PERSONS MAY INCUR IN ANY ACTION OR PROCEEDING ARISING HEREUNDER EXCEED THE GREATER OF: (i) FEES THAT HAVE BEEN PAID BY CUSTOMER TO BST UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM AND (ii) FIVE HUNDRED DOLLARS ($500.00). THIS SECTION 9 ALLOCATES THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT AND THE PRICING FOR CUSTOMER’S ACCESS TO THE PLATFORM AND PROFESSIONAL SERVICES.
10. Indemnification.
(a) BST Indemnification. BST will indemnify, defend and hold Customer harmless from and against all claims, suits and/or proceedings brought by any third party against Customer alleging infringement of such third party’s intellectual property rights by the Platform, including with respect to any resulting liabilities, losses, damages and costs awarded by a court or included as part of a final settlement, as well as reasonable attorneys’ fees, in connection with the foregoing; provided that Customer: (i) promptly notifies BST, in writing, of any such claim, suit or proceeding; (ii) cooperates reasonably with BST, at BST’s expense, in the defense and settlement thereof; and (iii) allows BST to control the defense and settlement thereof. If any infringement claim with respect to the Platform may be or has been asserted, Customer will allow BST, at BST’s option and expense, to: (A) procure for Customer the right to continue using the Platform; (B) replace or modify the Platform to eliminate the infringement while providing functionally equivalent performance; or (C) terminate this Agreement and all Orders hereunder with respect to the Platform in exchange for a refund of the pro-rata portion of Fees attributable to Customer’s access to the Platform that were actually paid to BST corresponding to periods following such termination. BST’s obligations under this Section 10 shall not apply to any claims based upon: (I) any materials, software or other information that have been altered by Customer or any party other than BST; (II) the combination of the Platform with any items not provided or required by BST, in writing (including in the Documentation); or (III) use of the Platform or any such materials, software or information after termination pursuant to sub-section (C) above. This Section 10(a) states Customer’s exclusive remedy and BST’s sole liability in connection with any claim of infringement or misappropriation of intellectual property rights.
(b) Indemnification by Customer. Customer will indemnify, defend, and hold BST harmless from and against all claims, suits and/or proceedings brought by any third party against BST, including with respect to any resulting liabilities, losses, damages and costs awarded by a court or included as part of a final settlement, as well as reasonable attorneys’ fees, in connection with or arising out of Customer’s or Customer’s End User’s use of the Platform or alleging that Customer Materials infringe or misappropriate such third party’s intellectual property rights; provided that BST: (i) promptly notifies Customer, in writing, of any such claim, suit or proceeding; (ii) cooperates reasonably with Customer, at Customer’s expense, in the defense and settlement thereof; and (iii) allows Customer to control the defense and settlement thereof.
11. Miscellaneous.
(a) Independent Parties/Third Party Beneficiaries. Customer and BST are independent parties. Nothing in this Agreement will be construed to make either party an agent, employee, franchisee, joint venturer or legal representative of the other party. Neither party will either have, or represent itself to have, any authority to bind the other party or act on its behalf. Nothing in this Agreement is intended or shall be construed as a third party beneficiary agreement, nor shall this Agreement confer, convey or be deemed to accord any rights to any third party.
(b) Force Majeure. Neither party shall be liable for damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its reasonable control including acts of God, government restrictions, wars, insurrections, acts of terrorism (including cyber), third party hacks and intrusions, epidemics or pandemics, infectious diseases and/or any other cause beyond the reasonable control of the party whose performance is affected. If applicable, the foregoing provisions shall not apply to any obligation of Customer to pay amounts to BST when due.
(c) Notices. Any notice under or in connection with this Agreement shall be in writing and shall be sent by nationally recognized (in the country of the sending party) overnight courier or certified mail (return receipt requested) to the address for notice that Customer provides in the Order (in the case of notice to Customer) and the then-current address each party as provided in the applicable Order. All notices shall be deemed to have been sufficiently given upon delivery. Either party may change its notice address by written notice to the other party as described above.
(d) Assignment. Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without BST’s prior written consent, which will not be unreasonably withheld. Any assignment or attempt to do so other than as provided in this Section 11(d) will be void. Notwithstanding the foregoing, Customer may assign this Agreement together with Customer’s assignment of all Orders, upon written notice to BST, in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Customer’s assets or voting securities or similar change of control transaction. BST may assign this Agreement to any affiliate or in connection with any merger, reorganization, acquisition or other transfer of all or substantially all of BST’s assets or voting securities or similar change of control transaction.
(e) Waiver, Modification, Severability, Cumulative Remedies, Agreement Drafting, Construction.
(i) Waiver, Modification. Except as otherwise provided herein, any waiver, amendment or other modification of this Agreement will not be effective unless in a physical writing, manually executed by the parties (e.g., no e-mail correspondence or other form of electronic contracting shall serve to amend, modify or waive any portion of this Agreement), provided that the parties acknowledge and agree that e-mail cor. The waiver by either party of any of its rights or remedies in a particular instance will not be deemed a waiver of the same or different right or remedy in subsequent instances.
(ii) Severability. If any provision of this Agreement is held to be invalid, it shall either be: (A) revised only to the extent necessary to make it enforceable, and such revision shall not affect the enforceability: (I) of such provision under other circumstances; or (II) of the remaining provisions hereof under any circumstances; or (B) if such revision is not possible, severed from this Agreement and the remainder of this Agreement shall continue in full force and effect.
(iii) Cumulative Remedies. Except as expressly provided to the contrary herein, all remedies set forth in this Agreement are cumulative and not exclusive of any other remedies at law or in equity, statutory or otherwise.
(iv) Agreement Drafting. Each party has had the opportunity to consult legal counsel with respect to the terms and conditions of this Agreement. This Agreement will be fairly interpreted in accordance with its terms and without any strict construction in favor of or against either party.
(v) Construction. Words importing the singular include the plural, words importing any gender include every gender and words importing persons include entities, corporate and otherwise; and (in each case) vice versa. The section headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement. As used herein, the words “shall” and “will” are to be interpreted as imperative and mandatory, and not permissive. Whenever the terms “including” or “include” are used in this Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of, the items within such classification
(f) Survival. Sections that by their nature, or to give effect to their meaning, must survive expiration or termination of this Agreement, shall survive any expiration or termination of this Agreement.
(g) Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, U.S.A., excluding its conflicts of laws principles. Any controversy or claim arising out of or relating to this Agreement or the existence, validity, breach or termination thereof, whether during or after the Term, will be brought in the federal or state courts having jurisdiction over the State of Delaware, to whose exclusive jurisdiction the parties hereby irrevocably submit for such purposes. Both parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”) and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement.
(h) Entire Agreement. This Agreement and any schedules, exhibits and other documents expressly incorporated herein or therein, constitute the complete and entire statement of all terms, conditions and representations of the agreement between BST and Customer with respect to its subject matter and supersede all prior agreements, writings or understandings, whether oral or in writing. No terms or conditions stated in any purchase order or in any other order documentation BST may receive from Customer shall be incorporated into, or form any part of, this Agreement, and all such terms or conditions shall be null and void.
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