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TBH Technology, LLC
Insights to Behavior License and Service Agreement – Terms and Conditions
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, LLC, (“TBHT”) is an application service provider and provides certain
services (the “Services”) involving the use of INSIGHTS TO BEHAVIOR. WHEREAS: Licensee desires to subscribe to INSIGHTS TO
BEHAVIOR and procure certain Services as set forth in this agreement and TBHT is willing to provide to Licensee, access to
INSIGHTS TO BEHAVIOR through the internet (from “www.insightstobehavior.com” and “www.insightstobehavior.net” ) and Services
on the terms and conditions specified in this License and Services Agreement.
TBHT and licensee are sometimes referred to as the ‘Parties” or individually as the “Party”.
2. Licenses. Upon TBHT's acceptance of an Order or Purchase Order from Licensee, TBHT shall grant and does hereby grant to
the Licensee a non-exclusive, non-transferable 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 TBHT the License Fees and Maintenance Fees for any Licensed INSIGHTS TO
BEHAVIOR 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 TBHT'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.
TBHT 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, TBHT reserves the right to audit the INSIGHTS TO
BEHAVIOR 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 TBHT discover the
number of Users or Sites accessing INSIGHTS TO BEHAVIOR to be larger than the number(s) identified in this agreement, TBHT will
notify the licensee and invoice Licensee to reflect the revised Count and TBHT shall provide a revised Order to Licensee.
3. Licensee Information, Ownership, Confidentiality and Use.
3.1
TBHT or its suppliers, as applicable, retain ownership of INSIGHTS TO BEHAVIOR, its Content, the Documentation, all other
materials provided by TBHT 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 INSIGHTS TO BEHAVIOR 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 INSIGHTS TO BEHAVIOR, the Documentation, or any
related materials.
3.2
"Confidential Information" means this Agreement any addenda hereto signed by both parties, all Licensed INSIGHTS TO
BEHAVIOR, Documentation, information including application content, models, logic diagrams, data and source code of INSIGHTS
TO BEHAVIOR, or any adaptations of the foregoing, all knowledge and know-how inherent to INSIGHTS TO BEHAVIOR as well as
all knowledge and know-how that is applied to the configuration of the Licensed INSIGHTS TO BEHAVIOR and any other proprietary
information supplied to Licensee by TBHT 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 TBHT 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 INSIGHTS TO BEHAVIOR in a manner
consistent with this Agreement.
3.4
TBHT 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. TBHT 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 TBHT 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 TBHT's Privacy Policies. However, TBHT bears no responsibility for safeguarding information that is
publicly available, already in TBHT possession and not subject to a confidentiality obligation, obtained by TBHT from third parties
without restrictions on disclosure, independently developed by TBHT 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 INSIGHTS TO BEHAVIOR 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 account at the end of each session of use; (c) maintaining the confidentiality
of its password(s); and (d) notifying TBHT of any unauthorized use of Licensee’s password(s) or account or any other breach of
security that is known or suspected by Licensee.
TBH Technology, LLC
License and Service Agreement – Terms and Conditions
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TBH Technology, LLC
Insights to Behavior License and Service Agreement – Terms and Conditions
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
TBHT 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 TBHT'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.
TBH Technology, LLC
License and Service Agreement – Terms and Conditions
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