1. THIS IS A BINDING AGREEMENT
1.1 This Terms and Conditions of Use (“Agreement”) between you and Behavior Imaging Solutions sets forth the general terms and conditions governing your use of the BEHAVIORIMAGING.com Site and the products and services available on the Site. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE BEHAVIORIMAGING.COM SITE.
1.2 As used in this Agreement, the terms “we,” “us,” or “our” refer to Behavior Imaging Solutions. As used in this Agreement, the terms “Subscriber”, “you”, or “your” refer to the individual executing and/or accepting this Agreement and any of the Users associated with the Subscriber’s Account.
1.3 The BEHAVIORIMAGING.com website (“BEHAVIORIMAGING.com” or the “Site”) is an on-line information and communications service provided by Behavior Imaging Solutions, Inc. (“BIS”) that contains health and health-related information about an individual or multiple related individuals that is submitted and/or entered by educators, education organizations, healthcare providers, healthcare organizations, and/or the individual and/or his or her designee.
(a) “Account” shall mean the data content including health and health-related information of a Subscriber and/or his or her family members that may be accessed, stored, used, and updated only by the Subscriber and/or his or her designee(s).
(b) “Disclosing Party” shall mean the party that is disclosing health or health-related information for inclusion in a Subscriber’s Account.
(c) “Subscriber” shall mean an individual who executes or enters into this Agreement with BIS to maintain and store health and health-related information in a personal Subscriber Account that may be accessed at the BEHAVIORIMAGING.com Site, or who accepts the terms and conditions set forth in this Agreement so as to be able to access and/or use the BEHAVIORIMAGING.com Site. A Subscriber may access, use, store, and maintain his or her own health and health-related information in the Subscriber’s Account as well as the health and health-related information of family members.
(d) “User” shall mean an individual whose health or health-related information is stored in a Subscriber’s Account and who accesses or uses the Site.
(e) “Provider” shall mean an individual who has been granted rights by the subscriber to access particular health-related information from the subscriber’s account
1.5 The BEHAVIORIMAGING.com Site is for personal and noncommercial access and use only. As a condition to continued use of the Site, Subscribers and Users shall use the Site solely in accordance with the terms and conditions set forth in this Agreement, as amended from time to time without notice.
2. RIGHT TO USE, SITE CONTENT, GENERAL INFORMATION
2.1 BIS hereby grants to the Subscriber the right to access, view, and use the Site, subject to the terms and conditions of this Agreement. BIS reserves the right to add new features to the Site and remove current features from the Site without notice. The Subscriber and/or a User may download and/or print a copy of the information stored in their respective Accounts from the Site for personal use only and, when appropriate, in a manner consistent with Section 8 (Copyright) herein.
2.3 The content on the BEHAVIORIMAGING.com Site and in Subscribers’ Accounts, including but not limited to, text, graphics, images, video information obtained from third parties, links, and other material (“Content”) is intended for informational and educational purposes only.
2.7 BIS is not a covered entity as that term is defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and is not, therefore, required to comply with its requirements. However BIS has made its mission to follow the guidelines set forth by HIPAA. BIS places security and privacy as a priority for all aspects and functions of the site.
3. ACCESS TO AND USE OF THE SITE BY SUBSCRIBERS AND USERS
3.1 Access to and use of the BEHAVIORIMAGING.com site is available for free for limited viewing use and through a number of subscription plans. BIS reserves the right to charge for its free account or change Subscription Fees, surcharges, and/or other fees at any time upon thirty (60) days prior written notice.
(a) In the event that BIS decides to change the free service to a subscription fee service or change the fee for the for fee service, BIS will send all subscribers a notification by email alerting them to the new change. The subscriber will be required to reply to the email stating their intentions. The subscriber will be directed to the site that will explain the new terms of service. The subscriber has the option to continue their subscription for the new fee or they will be given the one time option of terminating their subscription. The subscriber will be given 60 days to reply to the notification.
(b) If the User has not responded within seven days of the initial notification BIS will continue to send email notifications every seven days until the subscriber responds or sixty days are reached.
(c) In the event that the subscriber fails to reply and the sixty days are reached, the subscriber’s account will be terminated.
(d) The Subscription Fee to access and use the BEHAVIORIMAGING.com Site and to establish an Account is defined in the Enrollment section of the BEHAVIORIMAGING.com Site. Subscribers may register on the BEHAVIORIMAGING.com Site for a Monthly Subscription in accordance with Paragraph 3.1(b) (Subscription Period) hereinafter.
(e) In the case of a Monthly Subscription, the Subscriber shall be entitled to access and use the BEHAVIORIMAGING.com Site for an Initial Term of one (1) month from the date of registration provided the Subscriber and any Users of the Subscriber’s Account remain in compliance with the terms and conditions of this Agreement.
(f) This Agreement will be automatically renewed for a Renewal Term of an additional one (1) month in the case of a Monthly Subscription at the end of the Initial Term and at the end of each automatic Renewal Term thereafter, unless this Agreement is terminated in accordance with Paragraphs 18.3, 18.4, and 18.5 herein.
(g) By registering as a Subscriber and/or registering Users within the Subscriber’s Account on BEHAVIORIMAGING.com, the Subscriber authorizes BIS to charge the Subscriber’s credit card for the amount of the Subscription Fee within 24 hours of registration. The Subscription Fee will be charged on the first day of the Initial Term and the first day of each Renewal Term.
3.2 Each Subscriber may enter or upload, maintain, and store personal health and health-related information about his or her physical or mental health or medical condition, including copies of documents, records, images, videos and information submitted to the Subscriber by healthcare providers or other healthcare organizations, to a personal, secure, and unique Account established for the Subscriber. BIS, or a third party acting on behalf of BIS, will electronically store and maintain Subscribers’ Accounts on servers at BIS or at the site of a third party acting on BIS’s behalf.
3.3 Each Subscriber Account can be tailored by the Subscriber to upload, maintain, and store health and health-related information for one or more members of the Subscribers family for access and use by the Subscriber and the family members on the Subscribers Account.
3.4 Whenever a Subscriber’s information is submitted to or entered in the Subscribers Account, that information will be communicated using encryption technology called Secure Socket Layer (“SSL”) encryption software. However, BIS cannot and will not guarantee that: (a) the information, during its transmission to a Subscribers Account, will be protected against loss, misuse or alteration by third parties; or (b) access to Subscribers’ Accounts will be uninterrupted; or (c) SSL encryption cannot be breached.
3.5 It is the responsibility of each Subscriber to take all reasonable steps to ensure that no unauthorized person shall have access to the Subscribers User ID and Password. It is each Subscribers sole responsibility to control the dissemination and use of the Subscribers User ID and Password, authorize, monitor and control access to and use of the Subscribers Account, and promptly inform BIS of any need to deactivate or change the Subscribers User ID and/or Password. BIS cannot and will not assume any responsibility or liability for any information submitted to a Subscribers Account or any information that is used or misused whether submitted, used, or misused by (a) the Subscriber; (b) Users on the Subscribers Account; (c) the Subscribers designee; (d) healthcare providers; (e) other healthcare organizations; or (f) other third parties, whether or not acting on the Subscribers behalf.
3.6 Should the need arise, the Subscriber hereby grants BIS, its employees, officers, directors, agents, and contractors, and all other persons or entities involved in the operation of BIS or of the Site the right to access, transmit, receive, monitor, retrieve, store, maintain, and use the information in the Subscribers Account for purposes related to the operation of BEHAVIORIMAGING.com, including but not limited to maintaining the Subscriber’s Account. The account is fully automated and no human intervention is required to receive or store the subscriber’s health information. BIS reserves the above rights in the events of a problem encountered in the application or the individual subscriber’s account.
3.7 The Subscriber understands and agrees, consents, and authorizes:
(a) his or her individually identifiable health information and that of any of the Users on the Subscriber’s Account to be stored, entered, and maintained on the BEHAVIORIMAGING.com Site in accordance with the terms of this Agreement; and
(b) the Subscriber, and anyone with the Subscriber’s BEHAVIORIMAGING.com User ID and Password, can access, view, add, revise, and/or delete information from the Subscriber’s Account.
3.8 Subscribers to BEHAVIORIMAGING.com may upload or submit by facsimile their personal health information and medical records, X-rays and other personal medical images, and other health-related information. Any images submitted to BIS shall become the property of BIS and will not be returned. BIS assumes no responsibility for the quality of X-rays or other personal medical images reproduced on the BEHAVIORIMAGING.com Site or for medical decisions that are based on X-rays, EKGs, or other personal medical images archived on the BEHAVIORIMAGING.com Site.
3.9 BIS has developed a proprietary faxing module that allows the user to create, print and fax a “written request for medical records” fax sheet. This fax sheet is created through the subscriber’s account and functions as a request as well as a placeholder waiting on the receipt of the requested information. This unique faxing method automates the receiving, filing and notification of the requested health documents. This method insures the privacy and security in the handling of the subscriber’s data because no human intervention is involved in the process. BIS will send an email notification when faxed material have been received and placed into the subscriber’s account. BIS cannot guarantee that all of the information sent was successfully received. BIS needs to make the subscriber understand that they can only store information that was received by the server. It is the subscriber’s responsibility to make sure all of the information was successfully transmitted.
3.10 The party who submits or enters health or health-related information into Subscribers’ Accounts is solely responsible for its accuracy and completeness. Each Subscriber is responsible for reviewing information in the Subscriber’s Account as well as any documents produced from BIS or the BEHAVIORIMAGING.com Site such the faxing request form for release of medical records and notifying BIS, or a third party designated by BIS, of any errors.
3.11 BIS may enter into custom agreements by organizing Enterprise sales which rely on activation codes to achieve user access. The agreements governing these arrangements will be issued and accepted separately from these Terms of Service.
4. SUBSCRIBERS’ AND USERS’ RESPONSIBILITIES
4.1 Subscribers and Users agree:
(a) to maintain all equipment required for access to and use of the BEHAVIORIMAGING.com Site;
(b) to maintain the security of User IDs, Passwords, and other confidential information relating to the Subscriber’s BEHAVIORIMAGING.com Account;
(c) not to introduce onto the Site or to users of the Site, directly or indirectly, computer viruses, worms, Trojan horses or other code that manifests or could potentially manifest contaminating or destructive properties;
(d) to be responsible for all charges resulting from the access and use of the Subscriber’s Account, including unauthorized access and use;
(e) to notify BIS as soon as reasonably practicable of any real or suspected unauthorized use of the Subscriber’s Account;
(f) to comply with instructions provided by BIS for using, maintaining, or correcting the Subscriber’s Account; and
4.2 Each Subscriber and User is responsible for the communications submitted to or entered into the Subscriber’s Account and their access and use of the BEHAVIORIMAGING.com Site. A Subscriber, User, and/or a Subscriber’s designee may not, under any circumstances, do any of the following:
(a) transmit any information that is libelous or defamatory;
(b) transmit any message, data, image or program that is indecent, obscene or pornographic;
(c) transmit any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted materials, trade secrets or other confidential proprietary information and trademarks or service marks used in an infringing manner;
(d) Use the BEHAVIORIMAGING.com Site to threaten, harass, stalk, abuse or otherwise violate the legal rights, including rights of privacy and publicity, of others;
(e) intercept or attempt to intercept the transmission of files or other private communications not intended for the Subscriber;
(f) send e-mails to other Subscribers or Users of the BEHAVIORIMAGING.com Site for any purpose other than personal communication;
(g) use the BEHAVIORIMAGING.com Site to advertise or offer, on an unsolicited basis, to sell goods or services to other Subscribers or Users or use the Site for purposes of distributing unsolicited messages to one or more individuals;
(h) upload or download files that contain software or other material protected by intellectual property laws, privacy laws, or publicity laws, or any other applicable law unless personally owned or controlled or unless the necessary consent(s) to use, access, and/or communicate such files has been received;
(i) upload information, documents, and/or files that contain viruses, worms, Trojan horses, corrupted data or other code that manifests or potentially could manifest contaminating or destructive properties;
(j) use the BEHAVIORIMAGING.com Site in such a manner as to adversely affect the availability of its resources to others;
(k) falsely or fraudulently purport to be an employee or agent of BIS;
(l) cause disruptive incidents;
(m) fail to comply with applicable laws and regulations while using or accessing the BEHAVIORIMAGING.com Site; or
(n) post or transmit any message or information that is harmful, threatening, abusive or hateful. BIS reserves the right to take such action as it deems appropriate in cases where the BEHAVIORIMAGING.com Site is used to disseminate statements that are deeply and widely offensive and/or harmful.
4.3 Each time a Subscriber or User uploads or posts information, data, a document, or a file to the BEHAVIORIMAGING.com Site, the Subscriber or User, as applicable, represents and warrants that he or she owns or otherwise controls the rights to the information, data, document, or file, or that he or she has the necessary consents to upload or post it.
4.4 You represent and warrant that you are at least 18 years of age and that you possess the legal right to enter into this Agreement and to use the BEHAVIORIMAGING.com Site in accordance with this Agreement.
4.5 You agree to be financially responsible for the use of the BEHAVIORIMAGING.com Site and for use of your Account by others, including minors for whom you have responsibility and/or who are living with you and for other immediate family members living with you.
4.6 You further understand and agree to comply with the responsibilities and obligations as set forth in this Agreement, and you understand and agree that failing to comply with any of the foregoing limitations or obligations may result in civil or criminal liability.
5. TERM; TERMINATION
5.1 The Effective Date of this Agreement shall be the date on which the Subscriber registers with the BEHAVIORIMAGING.com Site.
5.2 A Subscriber and the Users included in the Subscriber’s Account, if any, shall be entitled to access and use the BEHAVIORIMAGING.com Site for a Term of one (1) month, commencing on the Effective Date (“Monthly Subscription”).
5.3 Either party may terminate the Subscriber’s right to use the BEHAVIORIMAGING.com Site and/or his or her Account and participation under this Agreement at any time, with or without cause, by giving written notice to the other party no later than thirty (30) days prior to the end of the Initial or any Renewal Term.
5.4 Notwithstanding anything to the contrary in this Agreement, BIS shall have the right to immediately terminate this Agreement or suspend a Subscriber’s Account in the event that BIS determines, in its sole discretion, that a Subscriber or a User of the Subscriber’s Account has violated a material provision of this Agreement, including failing to make timely payment for the right to access and use the BEHAVIORIMAGING.com site. BIS shall confirm such termination or suspension by subsequent written notice.
5.5 The Termination of this Agreement shall not affect any provision of this Agreement which, by its wording or its nature, is intended to remain effective and to continue to operate in the event of termination of this Agreement, and shall not prejudice or affect the rights of any party against another in respect of any breach of the terms and conditions of this Agreement. Notwithstanding the foregoing, the provisions of Sections 8 (Copyright), 10 (Indemnification), 11 (Waiver, Release and Limitation of Liability), and 19 (Miscellaneous) shall survive Termination of this Agreement.
5.6 The Termination of this agreement must be received from subscriber in writing. On receiving this written request the subscriber’s account will become inactive. A log-in attempt by the user of the inactive account will be met with a notification screen requesting the user to contact BIS.
5.7 In the case of a Monthly Subscriber, the excess, if any, of the months paid in advance shall be refunded to the Monthly Subscriber. No refund will be provided for the month in which the Agreement is terminated.
6.2 BIS has the right to Place Opt in notifications throughout the Data input screens. The OPT ins will be relevant to the information being collected on that screen. The opt ins serve to help inform the subscriber of new clinical trials, advances in the fields etc. When a subscriber “opts in” the subscriber is allowing BIS to pass an email along from a third party for the purpose of a second opt in. The email address of the subscriber is never turned over to the third party. If the subscriber acts upon the 2nd opt in, the third party will establish a relationship with the subscriber independent of BIS.
6.3 The 2nd opt in will remove the liability from BIS and any actions that take place between the subscriber and the third party will remain with them. The subscriber can allow access to their BIS account by the third party to obtain additional information relevant to the purpose.
7. BIS AND SITE OPERATIONS
(c) withdraw, suspend or discontinue any functionality or feature of the BEHAVIORIMAGING.com Site without prior notice.
7.2 BIS shall maintain technological systems, policies, and procedures to guard against unauthorized access to information that is transmitted electronically, including encryption and/or appropriate technical security mechanisms.
7.3 BIS shall not use, disclose, or process the information submitted for inclusion in a Subscriber’s Account except to the extent necessary for the proper management and administration of the information or in order to carry out the legal responsibilities of BIS.
7.4 BIS makes no representations concerning any effort to review any or all of the content of sites for which links are provided on the BEHAVIORIMAGING.com Site. BIS does not in anyway operate, control or endorse any information, products or services provided by third parties through the Internet.
7.5 The inclusion of any link on the BEHAVIORIMAGING.com Site does not imply an endorsement by BIS of any information, products, or services offered by the linked website, but is for BIS Subscribers’ and Users’ reference and convenience only.
7.6 If clicking on a link on the BEHAVIORIMAGING.com Site which directs the Subscriber or User to an off-Site page or to another site is at the Subscriber’s or User’s own risk and subject to the terms and conditions of use of such sites.
7.7 BIS cannot and will not review communications and materials posted or uploaded to the BEHAVIORIMAGING.com Site for accuracy or completeness, and is not responsible for the content of such communications and materials.
7.8 BIS reserves the right to remove or block communications or materials that BIS determines, in its sole discretion, to (a) be abusive, libelous, defamatory or obscene, (b) be fraudulent, deceptive or misleading, (c) violate a copyright or trademark or other intellectual property right of another, (d) contain or have attached a program, virus, worm, or other device or code that could pose a security risk to BIS or the BEHAVIORIMAGING.com Site, or (e) be offensive or otherwise unacceptable to BIS.
8.1 All content on the BEHAVIORIMAGING.com Site excluding uploaded or added content thru an account users normal use of the site, including but not limited to, all graphs, graphics, photographs, text, sounds, data, and audio and video clips, is the exclusive property of BIS, its licensors, or its content suppliers, and is protected by U.S. and international copyright laws. The compilation, collection, selection, arrangement, assembly and coordination of all content available on the Site is the exclusive property of BIS and protected by U.S. and international copyright laws.
8.2 All information shall be deemed the exclusive property of the Disclosing Party prior to uploading or entering any information into an individual Subscriber’s Account.
8.3 Disclosure of any information to the BEHAVIORIMAGING.com Site shall not transfer legal title to BIS, unless otherwise expressly agreed to in writing.
8.4 BIS shall be entitled to have non-exclusive possession of the information submitted to or entered into a Subscriber’s Account subject to the terms of this Agreement. The right to possess such information shall be automatically terminated upon the termination of this Agreement, unless (a) otherwise agreed to in writing; or (b) return or destruction of the information is not feasible, in which event the right of possession shall be limited to possession for the purpose(s) which make return or destruction of the information not feasible.
9. DISCLAIMER; NO WARRANTIES
9.1 THE BEHAVIORIMAGING.COM SITE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, INFRINGEMENT, ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, USEFULNESS, ADEQUACY OR SUITABILITY OF THE CONTENT.
9.2 BIS CANNOT AND WILL NOT WARRANT AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA OR INABILITY TO ACCESS DATA. FURTHER, BIS CANNOT AND DOES NOT WARRANT OR GUARANTEE THAT THE FUNCTIONS OR SERVICES PERFORMED ON THE BEHAVIORIMAGING.COM SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE BEHAVIORIMAGING.COM SITE WILL BE CORRECTED.
9.3 BIS CANNOT AND WILL NOT GUARANTEE THAT ANY ONE OR ALL OF YOUR HEALTHCARE PROVIDERS WILL TRANSMIT ALL OR ANY PORTION OF YOUR MEDICAL RECORDS OR OTHER HEALTH INFORMATION THROUGH THE FAX MODULE. YOU SHOULD NOT RELY EXCLUSIVELY ON THE BIS CONTENT TO ACCURATELY AND COMPLETELY DESCRIBE YOUR PAST, PRESENT, OR FUTURE PHYSICAL OR MENTAL HEALTH OR CONDITION OR THE PROVISION OF HEALTH CARE TO YOU.
9.4 BIS WILL NOT INDEPENDENTLY AND SEPARATELY VERIFY THE TRUTH AND ACCURACY OF INFORMATION SUPPLIED BY YOUR HEALTHCARE PROVIDERS OR ENTERED BY YOU. INFORMATION THAT IS SUBMITTED BY YOUR HEALTHCARE PROVIDERS OR ENTERED BY YOU OR YOUR DESIGNEE WILL BE CONSIDERED BY BIS AS ACCURATE AND COMPLETE. YOU AND YOUR HEALTHCARE PROVIDERS ARE SOLELY RESPONSIBLE FOR IDENTIFYING AND CORRECTING ANY AND ALL ERRORS IN INFORMATION STORED BY BIS ON YOUR BEHALF.
9.5 SUBSCRIBERS AND USERS OF THE BEHAVIORIMAGING.COM SITE ARE SOLELY RESPONSIBLE FOR
(A) IMPLEMENTING AND MAINTAINING ADEQUATE PROCEDURES AND CHECKPOINTS TO SATISFY THEIR PARTICULAR REQUIREMENTS FOR ACCURACY OF DATA INPUT AND OUTPUT AND
(B) MAINTAINING A MEANS EXTERNAL TO BIS FOR THE RECONSTRUCTION OF ANY LOST DATA.
9.6 YOU UNDERSTAND AND AGREE THAT INFORMATION COMMUNICATED TO OR OTHERWISE ENTERED IN THE BEHAVIORIMAGING.COM SITE WILL BE COMMUNICATED OVER LOCAL EXCHANGE, INTEREXCHANGE AND INTERNET BACKBONE CARRIER LINES AND THROUGH ROUTERS, SWITCHES AND OTHER DEVICES OWNED, MAINTAINED AND SERVICED BY THIRD PARTY LOCAL EXCHANGE AND LONG DISTANCE CARRIERS, UTILITIES, INTERNET SERVICE PROVIDERS AND OTHERS, ALL OF WHICH ARE BEYOND THE CONTROL OF BIS. BIS CANNOT AND WILL NOT ASSUME ANY LIABILITY FOR OR RELATED TO THE DELAY, FAILURE, INTERRUPTION, INTERCEPTION OR CORRUPTION OF ANY DATA OR OTHER INFORMATION COMMUNICATED TO OR ENTERED IN THE BEHAVIORIMAGING.COM SITE.
9.7 BIS CANNOT AND WILL NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THIS SITE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES.
9.8 BIS CANNOT AND WILL NOT ASSUME ANY LIABILITY FOR ANY OF THE CONTENT ON THE SITE. RELIANCE ON ANY INFORMATION PRESENTED ON THE SITE IS AT THE USER’S OWN RISK. BIS RESERVES THE RIGHT TO CHANGE OR DISCONTINUE ANY ASPECT OR FEATURE OF THE SITE FROM TIME TO TIME WITHOUT NOTICE.
9.9 INFORMATION ENTERED BY A SUBSCRIBER OR USER OR PROVIDED BY HIS OR HER HEALTHCARE PROVIDERS AND ORGANIZATIONS WILL BE USED BY BIS ONLY FOR THE FOLLOWING PURPOSES:
(A) PROVIDING SUBSCRIBERS AND USERS THE ABILITY TO ACCESS AND USE THE BEHAVIORIMAGING.COM SITE VIA A VALID BEHAVIORIMAGING.COM PASSWORD.
(B) AS NECESSARY FOR THE PROPER MANAGEMENT AND ADMINISTRATION OR IN ORDER TO CARRY OUT THE LEGAL RESPONSIBILITIES OF BIS.
10.1 You agree to indemnify, defend, protect, release, and hold BIS, its officers, directors, employees, agents, and its affiliates, Information Providers, and Suppliers and their respective officers, directors, agents, and employees harmless from and against any and all losses, expenses, damages to persons or property, injuries or deaths of persons, liability, claims, liens, demands, and causes of action, including claims of infringement of copyright, trademark, or other intellectual property rights, and including the amounts of judgments, penalties, interest, court costs, and legal fees including reasonable attorney’s fees incurred by BIS, its affiliates or their respective officers, agents, and employees in defense of same (“Claims”) arising in favor of any person, corporation, or other entity, including the parties hereto and their employees, contractors, and agents in connection with, arising out of, or in any way incident to this Agreement or any activity related to Your Account or Your use of the BEHAVIORIMAGING.com Site. You understand and agree that such indemnity shall apply regardless of whether the Claims arise in whole or in part from the actual or alleged sole, comparative, concurrent, active, passive, contributory or gross negligence of BIS, its affiliates and their respective officers, directors, agents, and employees or by you or any other person accessing and/or using the Site and/or your Account.
11. WAIVER, RELEASE AND LIMITATION OF LIABILITY
11.1 You agree that neither BIS nor its officers, directors, employees, and agents, nor its affiliates, Information Providers, or Suppliers and their respective officers, directors, employees, and agents shall have any liability to you under any theory of liability or indemnity in connection with, arising out of, or in any way incident to this Agreement or any activity related to your Account or your access or use of the BEHAVIORIMAGING.com Site. You hereby release and forever waive any and all claims you may have against BIS, its officers, directors, employees, and agents and its affiliates, Information Providers, and Suppliers and their respective officers, directors, employees, and agents for losses or damages you sustain in connection with your use of the BEHAVIORIMAGING.com Site.
11.2 Notwithstanding the foregoing paragraph, the total collective liability of BIS, its officers, directors, employees, and agents, and its affiliates, Information Providers, and Suppliers and their respective officers, directors, employees, and agents, if any, for losses or damages shall not exceed the fees paid during one (1) calendar year by the Subscriber for the particular information or service provided. All other damages, direct or indirect, special, incidental, consequential or punitive, including but not limited to, lost profits or damages resulting from lost data or business interruption arising from any use of or inability to use any Content or other parts of the BEHAVIORIMAGING.com Site, are hereby excluded even if BIS, its officers, directors, employees, and agents and its affiliates, Information Providers, and Suppliers and their respective officers, directors, employees, and agents have been advised of the possibility of such damages.
12.1 Governing Law, Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho, excluding any conflict of laws principles. Further, the parties stipulate that this Agreement is deemed to have been made and entered into by them in the State of Idaho. With respect to any suit, action, or proceedings relating to this Agreement (the “Proceedings”), each party irrevocably submits to the exclusive jurisdiction of the courts of the State of Idaho and the United States District Court located in Boise County, Idaho, and irrevocably waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum, and further waives the right to object, with respect to such Proceedings, that such court does not have jurisdiction over such party. Nothing in this Agreement precludes either party from enforcing in any jurisdiction any judgment, order, or award obtained in any such court.
12.2 Limitation on Actions. No action, regardless of form, relating to this Agreement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment may be brought by BIS not later than one year following the date of the last payment due to BIS. In the event of litigation concerning this Agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this Agreement, then such party shall be liable for and pay to the non-breaching party, the reasonable legal fees and court costs such non-breaching party has incurred in connection with such litigation, including any appeal there from or review thereof.
12.3 Third Party Rights. The provisions of paragraphs 10 (Indemnification) and 11 (Waiver, Release and Limitation of Liability) are for the benefit of BIS and its officers, directors, employees, and agents, and its affiliates, Information Providers, Suppliers, and their respective officers, directors, employees, and agents. Each of these individuals or entities shall have the right to assert and enforce those provisions directly against you on its own behalf.
12.4 Nonwaiver. BIS’s failure to insist upon or enforce strict performance of any provision of this Agreement or to exercise any rights herein shall not be construed as a waiver of any provision or relinquishment to any extent of BIS’s right to assert or rely upon such provisions or rights on any future occasion. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.
12.5 Assignment. BIS may assign its rights and obligations under this Agreement to any party at any time without notice. Commencing immediately upon such assignment, BIS shall be relieved of any further obligation hereunder.
12.6 Notices. Any notice which may be or is required to be given under this Agreement shall be in writing and shall be sent by first class mail, fax, courier, or as an electronic record attached to an email. All notices shall be effective upon receipt by the party at each party’s address as follows:
If by means of electronic mail, to the most recent e-mail address provided by the Subscriber at the time of registration or modification of the Subscriber’s profile.
If by means of first class mail, fax, or courier, to the Subscriber’s address on file in BIS’s account information.
Behavior Imaging Solutions, Inc.
1423 W. Franklin St,
Boise ID 83702
12.7 Severability. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof, but such invalid or unenforceable provision shall be deemed modified to the extent necessary to render it valid or enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein.
12.8 Amendments. BIS reserves the right to amend this Agreement from time to time without notice. Such Amendment shall be effective immediately upon either posting the Amendment or this Agreement as amended. A Subscriber’s or User’s continued access to or use of the BEHAVIORIMAGING.com Site shall be deemed the Subscriber’s conclusive acceptance of any and all Amendments and the most current amended Agreement.
12.9 Entire Agreement. This Agreement, as amended from time to time pursuant to Paragraph 12.8, constitutes the entire agreement and understanding between the parties with respect to the services, responsibilities, and obligations specified and agreed upon in this Agreement and supercedes all prior oral or written agreements and understandings between the parties with respect to such services, responsibilities, and obligations.
12.10 Choice of Law. Any legal action or ruling arising from this agreement or use of the law BEHAVIORIMAGING.com Site will be governed under Idaho State.