Software Terms of Use
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SOFTWARE LICENSE AGREEMENT
This End-User License Agreement ("Agreement") creates a legally binding Agreement between you, as Licensee, and ABA Toolbox, as Licensor of the ABA Toolbox proprietary software system. You will be referred to through second-person pronouns such as "your" and "yours." We, the Licensor, will be referred to with pronouns such as "us," "our," and "ours." Collectively, you and the Licensor may be referred to as the "Parties" and individually as "Party." If you do not agree to the following terms, you shall not be permitted access to, or use of, ABA Toolbox.
1. SOFTWARE. ABA Toolbox is an A-Z cohesive practice management web application for multi-disciplinary collaboration between treatment providers with the tools to evaluate, deliver, monitor, track, schedule, and bill for treatment for individuals with disabilities. Therapists have access to a curriculum library of 1000+ Applied Behavior Analysis lessons that are integrated into the system to evaluate and build unique curriculums to meet the needs of individual learners. The system has a built-in data driven methodologies for therapy. ABA Toolbox is created by practitioners for a learner centered approach: one team- one mission - one platform with 360 micro and macro views, unlocking potential one session at a time. The system facilitates a highly structured, scientific approach that teaches social skills, communication, self-care, cognitive and adaptive, and reduces problematic behaviors. The web application currently integrates the following:
Learner Center Treatment/Therapy Tools: Customized Evaluations; Mapped to standardized Assessments; Lesson Library; Individual Curriculum Building; Curriculum Lesson Performance Data Tracking/Graphing; Treatment Plans and Progress Reports; Behavior Plans and Parent Approval Process; Behavior Treatment Performance Data Tracking/Graphing; Treatment Team Messaging; Session Notes & Parent Validations; Learner Calendar/Scheduling; and
Team Management Tools: Multi-level Access User Management; Learner Activation, Profiles & Resource Allocation; Dashboards & Team Calendar & Communications; Internal & Insurance Review Processes for Treatment Plans; Customizable Automated Notifications, Report Generation, and Archiving; Therapist Team Performance Tracking & Monitoring, billing, custom reporting, parent onboarding, scheduling, and Account Administration & Payment Settings.
Licensee must comply with all applicable laws, treaties, regulations, and third party agreements in connection with Licensee's use of the Services, including those related to privacy, data protection, and cross-border transfer of personal data and in accordance with Licensee's obligations under this Agreement and Licensor's Terms and Conditions set forth on Schedule A. Licensor reserves the right to update such policy as set forth therein. Any use of the Services in violation of Licensee's obligations under this Agreement or Licensor's Terms and Conditions shall be a material breach of this Agreement.
2. PRIVACY: Your use of the Software involves the electronic transmission of your patients' health and medical records and other private information. The Software is encrypted and otherwise compliant with the Health Insurance Portability Act ("HIPAA"), HIPAA Privacy Rule enacted thereunder, Gramm-Leach-Bliley Act, General Data Protection Regulation (EU "GDPR"), and complies with applicable law. You hereby warrant and represent that your policies and practices with regard to the use and transmission of patients' health and medical records and other private information.
You shall have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness, and intellectual property ownership of, or right to use all Learner Data or other data transmitted or input. Licensor is under no obligation to review Learner Data or other submitted data for accuracy, acceptability or potential liability and shall not be liable or responsible for the content, accuracy or appropriateness of, or the right to use, such data. Licensee grants to Licensor all necessary permission to use Learner Data solely as necessary for Licensor to fulfill its obligations under this Agreement.
3. SOFTWARE LICENSE: When you lawfully access the Software through an annual subscription ("Subscription"), or other lawful means, we grant you, subject to all of the terms and conditions of this Agreement, a non-exclusive, non-transferable, limited, revocable license to use the Software ("License"). This License may not be transferred to any third parties without express, lawful, written permission from the Licensor and this License terminates upon the expiration of your Subscription. This License shall be applicable to all lawful Licensees of the Software, unless a separate written agreement has been executed between you and the Licensor. Licensee agrees to (a) use the Software solely for its own internal business purposes and (b) take appropriate actions to protect the Software and all parts thereof from unauthorized copying, modification, or disclosure by its users and other third parties.
4. LICENSE FEE: The License is provided in exchange for a monthly Subscription fee, which shall be disclosed to you prior to your Subscription. The fee is based on the number of Licensee's Learners.
5. TERM: The Term of this Agreement shall be coterminous with your Subscription.
6. ADDITIONAL TERMS: Additional terms may be applicable to the Parties' relationship with each other, such as the Licensor's Terms & Conditions or Terms of Use, the Licensor Privacy Policy, and any other such written agreements Governing your relationship with us. Nothing contained herein is intended to restrict the terms of any other written agreement. Instead, all relevant documents shall be construed as broadly as possible.
7. INTELLECTUAL PROPERTY: You agree that the Software and any future improvements or modifications, if any, are the property of the Licensor, including all copyrights, trademarks, trade secrets, patents, and other intellectual property ("Licensor IP"). You agree that the Licensor owns all right, title and interest in and to Licensor IP and that you will not use Licensor IP other than as expressly set forth in this Agreement. You agree not to copy, download, reproduce, create screen shots of, or distribute Licensor IP in any way, including electronically. Licensor IP does not include Learner data.
8. IMPROVEMENTS AND MODIFICATIONS: This License shall include improvements or modifications made by the Licensor to the Software during the Term, if any. Licensor shall have no obligation to improve or modify the Software.
9. CONFIDENTIALITY: Each party may have access to information that is confidential to the other party ("Confidential Information"). For purposes of this Agreement, Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Customer's Confidential Information shall include, but not be limited to, Learner Data.
Licensee will safeguard the Software and its related materials with that degree of normal due care commensurate with reasonable standards of industrial security for the protection of trade secrets and proprietary information so that no unauthorized use is made of them and no disclosure of any part of their contents is made to anyone other than Licensee's employees, agents or consultants whose duties reasonably require such disclosure, or as necessary in the ordinary course of business. Licensee shall make all such persons fully aware of their responsibility to fulfill the obligations of Licensee under this Agreement.
A party's Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party's Confidential Information, as established by written records. The parties agree to use commercially reasonable efforts not to make each other's Confidential Information available in any form to any third party.
This Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other Governmental authority; provided, however, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the "Responding Party") shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure, so as to permit such party an opportunity to obtain a protective order or take other appropriate action. The Responding Party will cooperate in the other party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed. Licensee agrees to promptly notify Licensor if it obtains information as to any unauthorized possession, use or disclosure of the Software by any person or entity, and further agrees to cooperate with Licensor in protecting Licensor's proprietary rights. The provisions of this clause shall survive termination of this Agreement.
10. ACCEPTABLE USE: You agree not to use the Software for any unlawful purpose or any purpose prohibited under this Agreement. You further agree not to use the Software:
I) To harass, abuse, or threaten others or otherwise violate any person's legal rights;
II) To violate any intellectual property rights of the Licensor or any third party;
III) To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
IV) To perpetrate any fraud;
V) To unlawfully gather information about others;
VI) To engage in illegal spam activities, including gathering email addresses and personal information from others or sending any mass commercial emails;
VII) To monitor the availability, performance or functionality of the Software for benchmarking or other competitive purposes.
VIII) To engage any other wrongful conduct.
11. REVERSE ENGINEERING & SECURITY: You agree not to undertake any of the following actions:
a) Reverse engineer, or attempt to reverse engineer, disassemble, decompile, modify, create derivative works of, or copy the Software or any code within or related to the Software;
b) Violate the security of the Software through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network;
c) Copy or otherwise distribute copies of the Software unlawfully, such as through any peer-to-peer network or other intellectual property circumvention tool.
12. INDEMNIFICATION: You agree to defend and indemnify Licensor and its officers, directors, employees, affiliates, successors and assigns, and hold them harmless against any and all legal claims, demands, damages, awards and costs, including reasonable attorney's fees, which may arise from or relate to your use or misuse of the Software, your breach of this Agreement, your failure to comply with HIPAA, Gramm-Leach-Bliley, GDPR, and other applicable law, or your conduct or actions.
Licensor will defend, indemnify and hold Licensee and its officers, directors, employees, affiliates, successors and assigns, and hold them harmless against any and all legal claims, demands, damages, awards and costs, including reasonable attorneys' fees, to the extent resulting from or arising out of any third-party claim or action that alleges the Licensed Program directly infringes a United States patent or copyright, or constitutes misappropriation of a third-party trade secret. In the event the Licensed Program becomes, or in Licensor's opinion are likely to become, the subject of any claim or action, then Licensor will use commercially reasonable efforts at its sole option and expense, to (a) procure the right for Licensee to continue using the Licensed Program, (b) replace or modify the Licensed Program so it becomes non-infringing while remaining functionally equivalent, or (c) if option (a) or (b) is not reasonably available in Licensor's judgment, Licensor may terminate the License and Licensor will issue a refund of all fees paid by Licensee for the remaining unused balance of the Subscription period at the time of termination.
The party seeking indemnification shall give prompt notice of the claim and will tender the defense; provided, however, that such party's failure to provide notification shall not affect the indemnifying party's indemnification obligations except to the extent that the failure to notify delays or prejudices the indemnifying party's ability to defend the applicable claim. The indemnifying party shall conduct the defense and shall have control of the litigation, and the indemnified party shall cooperate in defending against the claim. The indemnified party shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing. The indemnifying party shall not make any settlement of the claim that results in any liability or imposes any obligation on the indemnified party without the prior written consent of the indemnified party. If the indemnifying party fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, the party seeking indemnification shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of the indemnifying party, and the indemnifying shall promptly reimburse the indemnified party for all such costs and expenses.
This indemnification obligation will survive termination of the Subscription and this Agreement.
13. REPRESENTATIONS AND WARRANTIES: Vendor warrants that it is the sole owner of and or has full power and authority to grant the license and use of the Service and other rights granted by the Agreement to Customer with respect to the Service and that neither the performance by Customer in its utilization of the Service, nor the license of and authorized use by Customer of the Service as described herein, will in any way constitute an infringement or other violation of any U. S. copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure, or other rights of any third party.
14. SERVICE INTERRUPTIONS: The Licensor may need to interrupt access to the Software to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access to the Software may be affected by unanticipated or unscheduled downtime, for any reason, but that the Licensor shall have no liability for any damage or loss caused as a result of such downtime.
15. NO WARRANTIES: YOU AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE AND EXCLUSIVE RISK AND THAT THE SOFTWARE IS LICENSED ON "AS IS" BASIS. THE LICENSOR HEREBY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE LICENSOR MAKES NO WARRANTIES THAT THE SOFTWARE WILL MEET YOUR NEEDS, OPERATE WITHOUT INTERRUPTION, OR BE ERROR FREE OR COMPLETELY SECURE.
16. LIMITATION ON LIABILITY: THE MAXIMUM LIABILITY OF THE LICENSOR ARISING FROM OR RELATING TO THIS AGREEMENT IS LIMITED TO THE AMOUNT YOU PAID TO THE LICENSOR IN THE LAST SIX (6) MONTHS. THIS SECTION APPLIES TO ANY AND ALL CLAIMS BY YOU, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, CONSEQUENTIAL OR PUNITIVE DAMAGES, NEGLIGENCE, STRICT LIABILITY, FRAUD, OR TORTS OF ANY KIND, WHETHER OR NOT FORESEEABLE.
LICENSOR IS NOT LIABLE FOR ANY DAMAGES OR LOSSES THAT YOU MAY INCUR AS A RESULT OF YOUR USE OF THE SOFTWARE, OR THE LOSS, CORRUPTION OR LEAKAGE OF LEARNER DATA AS A RESULT OF HACKING OR OTHER DATA BREACHES, OR FLAWS IN THE DESIGN OR OPERATION OF THE SOFTWARE, TO THE FULLEST EXTENT PERMITTED BY LAW. LICENSOR IS NOT RESPONSIBLE FOR ANY DAMAGE TO LICENSEE'S COMPUTER, SOFTWARE, INFORMATION TECHNOLOGY EQUIPMENT OR OTHER PROPERTY RESULTING FROM LICENSEE'S USE OF THE SERVICES.
LICENSOR IS NOT RESPONSIBLE FOR ANY DAMAGE TO LICENSEE'S COMPUTER, SOFTWARE, MODEM, TELEPHONE OR OTHER PROPERTY RESULTING FROM LICENSEE'S USE OF THE SERVICES. IF LICENSOR'S PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT IS PREVENTED, RESTRICTED OR INTERFERED WITH BY CAUSES INCLUDING FAILURE OR MALFUNCTION OF LICENSEE SUPPLIED EQUIPMENT, OR DISRUPTIONS OF INTERNET PROTOCOL SERVICE THROUGH INTERMEDIATE CARRIERS OTHER THAN LICENSOR.
LICENSOR WILL HAVE NO LIABILITY FOR ANY CLAIM OR ACTION BASED UPON (A) THE COMBINATION, OPERATION, OR USE OF THE LICENSED PROGRAM WITH HARDWARE, SOFTWARE, OR OTHER ITEMS NOT SUPPLIED BY LICENSOR, (B) ANY ALTERATION OF THE LICENSED PROGRAM BY LICENSEE OR A THIRD PARTY, OR (C) ANY MODIFICATION OF THE LICENSED PROGRAM MADE BY LICENSOR PURSUANT TO SPECIFICATIONS, REQUIREMENTS, OR DESIGNS PROVIDED BY LICENSEE.
17. TERMINATION: Upon termination of this Agreement for any reason, Licensee's right to access the Service and use the Licensed Programs immediately ceases. Termination of this Agreement shall not relieve Licensee of its obligation to pay any Subscription Fees or other amounts owing under this Agreement.
18. DISPUTE RESOLUTION & GOVERNING LAW: All disputes will be resolved as provided for in the Terms & Conditions or Terms of Service. Should Licensor not have a live version of any Terms document or any other provisions in any user-facing document covering dispute resolution and Governing law, the laws of New Jersey shall Govern any matter or dispute arising under or relating to this Agreement or the subject matter thereof, without regard to conflicts of law. The Parties hereby agree that the state or federal courts in New Jersey shall have exclusive jurisdiction over disputes arising under or related to this Agreement. The Parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
19. ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you. Should this Agreement, or the rights granted hereunder, by assigned, sold, leased or otherwise transferred by the Licensor, the rights and liabilities of the Licensor will bind and inure to any assignees, administrators, successors, and executors.
20. POST-TERMINATION RIGHTS: Upon the expiration or termination of the Subscription, all rights granted to you under this Agreement will terminate and immediately revert to Licensor and you shall discontinue all use of the Software and ancillary proprietary materials.
21. NO AGENCY, PARTNERSHIP OR JOINT VENTURE: No agency, partnership, or joint venture has been created between the Parties as a result of this Agreement. No Party has any authority to bind the other to third parties.
22. FORCE MAJEURE: The Licensor is not liable for any failure of the Software to perform or loss of data due to causes beyond its reasonable control including, but not limited to: acts of God; regulation or other actions of any Governmental authority, agency, instrumentality, or of any civil or military authority; strikes; riots; embargoes; pandemics; epidemics; acts of nature and natural disasters, including but not limited to storms, fires, floods, earthquakes or other catastrophes; power failure; national emergencies; insurrections, riots and wars; strike, lockouts, boycotts, work stoppages or other labor difficulties; and other acts which may be due to unforeseen circumstances. In the event of force majeure, Licensor shall be excused from such performance on a day-to-day basis during such restriction or interference.
Licensor shall not be liable for any loss resulting from any other cause over which Licensor does not have direct control, including but not limited to, failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to Licensee's computer; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities, telephone or telephone service; or unauthorized access, theft or operator errors.
23. REMEDIES: No remedy conferred by any of the specific provisions of the Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder, now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies by either party shall not constitute a waiver of the right to pursue other available remedies.
24. WAIVER: No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
25. AGREEMENT BINDING ON SUCCESSORS: This Agreement shall be binding on and shall inure to the benefit of the parties hereto, and their heirs, administrators, successors, and assigns.
26. SEVERABILITY: If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.
27. RESERVATION: Other than as expressly set forth in this Agreement, no license or other rights in Licensor's Software or IP Intellectual are granted to you and Licensor hereby expressly reserves all such rights.
28. INCORPORATION BY REFERENCE: Licensor's Terms and Conditions, a copy of which is attached hereto as Exhibit A, is hereby incorporated in this Agreement by reference.
29. ENTIRE AGREEMENT: Changes to the Terms and Conditions: This Agreement may not be modified or amended except by written agreement of the Parties. Notwithstanding the foregoing, Licensor may change the Terms and Conditions in Exhibit A, incorporated herein by reference, without the agreement or consent of License.
30. HEADINGS FOR CONVENIENCE ONLY: Headings of parts and sub-parts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.