- KEY TERMS
“Aunt Bertha API” means Aunt Bertha’s application programming interface and any accompanying or related documentation, source code, executable applications and other materials made available by Aunt Bertha, including, without limitation, through its developer website and via the Platform.
“Aunt Bertha Marks” means Aunt Bertha®, and Aunt Bertha’s other product and service names, trademarks, service marks, branding and logos made available for use in connection with the Services pursuant to this Agreement.
“Authorized Customer User” means, collectively Customer and any of Customer’s individual employees, agents, or contractors accessing or using the Services on Customer’s behalf under the rights granted to Customer pursuant to this Agreement.
“Community Based Organization” or “CBO” means an organization or program that provides community, social, or other services to individuals that is listed on the Site.
“Community User” means a member of the general public (not an Authorized Customer User) who accesses the Site.
“Confidential Information” means any and all non-public information disclosed by one party to the other party pursuant to this Agreement in any form or medium, whether oral, written, graphical or electronic, that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
”Customer Affiliate” is defined as a company which controls, is controlled by or is under common control with Customer where “control” is defined as the power to direct the management and policies of the entity in question, whether by contract, ownership of voting securities, or otherwise. A Customer Affiliate shall only be considered such for so long as such control exists.
“Customer Content” means the data, media and content submitted, stored, posted, displayed, or otherwise transmitted by Customer and Authorized Customer Users on or through the Site, but does not include any data collected by Customer through use of or in connection with the Services. For clarity, Customer Content does not include Community User data or any other Non-Customer Originated Data.
“Data” means the Customer Content, Seeker Data, and Non-Customer Originated Data as it is made generally available by Aunt Bertha to Community Users and Aunt Bertha’s general customer base.
“Documentation” means text and/or graphical documentation provided to Customer in accordance with this Agreement, whether in electronic or printed format, that describe the generally available features, functions and operation of the Services, and which are designed to facilitate use of the Services.
“Materials” mean collectively all the text, Non-Customer Originated Data, information, software, graphics, photographs and more, including the Documentation, the Platform and Aunt Bertha API through which Aunt Bertha offers the Services. Materials include any and all intellectual property embodied in the Materials including the Aunt Bertha Marks. Materials does not include Customer Content.
“Non-Customer Originated Data” means Aunt Bertha’s vast database of content that Aunt Bertha continuously collects and stores based upon its own database of content and pursuant to separate content agreements with third parties, including its Community Users.
“Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
“Order Form” means the ordering documents for Services purchased from Aunt Bertha that are mutually agreed upon and executed hereunder by the parties from time to time. These Customer Terms and Conditions and the User Terms shall be deemed incorporated into each Order Form entered between the parties (collectively, the ‘Agreement’)
“Platform” means a “white labeled” presentation of the Site that may be licensed by Customer pursuant to an Order Form, subject to the terms of this Agreement.
“Seeker” means means the specific individual that is the subject of any referral, assessment, note, survey, or similar activity performed on or using the Site or Services.
“Seeker Data” means information about a Seeker that is processed or created by, or entered into, the Site or Services by anyone. For avoidance of doubt, forms, assessments, surveys, and similar content created by you to collect such information is not Seeker Data.
“Services” means any and all services, tools, software, content, applications and functionalities as may be provided by Aunt Bertha to Customer under this Agreement, including access to and use of the Platform and the Aunt Bertha API, which is offered on a subscription basis, and the Data as presented to Aunt Bertha’s general customer base through the Platform including access to and use by way of such Platform and API further described in the Order Form depending upon the Services subscribed by the Customer pursuant to the Order Form. Services include the API License, the Platform License and any or all other services purchased pursuant to an Order Form.
“Site” means, collectively, the site located at the URL: www.auntbertha.com as well as all associated sites linked thereto by Aunt Bertha, its subsidiaries and affiliated companies, whether as presented to end users by Aunt Bertha or as presented by the Customer pursuant to and subject to a Platform License.
“Subscription Term” means the period during which Customer has agreed to subscribe to the Services as set forth in an Order Form. If the Order Form is silent, such Subscription Term shall be deemed to extend for one (1) year from acceptance by Aunt Bertha of the applicable Order Form for the Services.
“System” means, in the event that an API License is granted in the Order Form, the Customer managed software system that is listed in the Order Form with which the licensed API is permitted to interact.
- PLATFORM LICENSE; AND API LICENSE
2.1. Platform License. If Customer purchases a license to the Platform pursuant to the Order, then this Section 2.1 will apply. All rights to use the Platform are subject to Customer’s subscription to and payment for applicable Platform Services that are agreed pursuant to an Order Form. In consideration of Customer’s payment of applicable Fees, subject to the terms and conditions of this Agreement, including but not limited to Section 3 below, Aunt Bertha hereby grants to Customer and its Authorized Customer Users a non-exclusive, non-transferable, non-sublicensable, within the USA only, revocable right and license during the Subscription Term (i) to access, input and interact with the Data within the Platform and (ii) to use, reproduce, transmit, publicly perform, publicly display, copy, process, and measure the Data solely (1) within the Platform and to the extent required to enable the ordinary and unmodified functionality of the Platform as described in the online descriptions, and (2) for the Customer’s internal business use (together “Platform Purpose”). Customer hereby acknowledges that the license hereunder is solely being provided for the Platform Purpose and not to modify or to create any derivatives based on the Data. Customer will take all reasonable measures to restrict the use of the Platform to prevent unauthorized access, including the scraping and unauthorized exploitation of the Data. Community Users who are not Authorized Customer Users do not require a separate license to be purchased on such Community User’s behalf by Customer. A Community User is granted the right to access general public capabilities of the Site when the Community User agrees to (and maintain compliance with) Aunt Bertha’s then current User Terms.
2.2. API License. If Customer purchases a license to an API license pursuant to the Order Form, then this Section 2.2 will apply. All rights to use the Aunt Bertha API are subject to Customer’s subscription to and payment for applicable API Services that are agreed pursuant to an Order Form. In consideration of Customer’s payment of applicable Fees, subject to the terms and conditions of this Agreement, including but not limited to Section 3 below, Aunt Bertha hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, within the USA only, revocable right and license during the Subscription Term to: (a) access, use and make calls for real time transmission and reception of Data and information to the Aunt Bertha API, in object code form only; (b) access, input, transmit, and interact with the Data solely within the System; and (iii) use, process, and measure the Data solely to the extent required to enable the display of the Data for “System End Use,” as defined in the following sentence (together, the “API Purpose”). The Authorized Customer Users are permitted read only access to the Data solely as and how the Data is presented to such Authorized Customer Users within the System and only within the USA (the “System End Use”). Customer hereby acknowledges that the license hereunder is solely being provided for the API Purpose and not to modify or to create any derivatives based on the Data. Customer shall ensure that the Authorized Customer Users will not access the Aunt Bertha API other than within the System and within the scope of use granted herein. Customer agrees that (i) Customer will not persist or cache any Data; (ii) display of the Data in the System will be based on real-time API use; and (iii) Customer will use all reasonable efforts restrict the use of the System so as to prevent unauthorized access, including the scraping and unauthorized exploitation of the Data.
3.1. Materials. Customer shall not, and shall not permit any Authorized Customer Users to: (i) copy or duplicate any of the Materials in any form, regardless of technique (e.g., screen-scraping, downloading, printing or otherwise) except as permitted in this Agreement and the Documentation; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of any of the Materials is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Materials, or attempt to do any of the foregoing, and Customer acknowledge that nothing in the Agreement will be construed to grant Customer any right to obtain or use such source code; (iii) modify, alter, tamper with or repair any of the Materials, or create any derivative product from any of the foregoing, or attempt to do any of the foregoing, except with the prior written consent of Aunt Bertha; (iv) interfere or attempt to interfere in any manner with the functionality or proper working of any of the Materials; (v) remove, obscure, or alter any notice of any intellectual property or proprietary right appearing on or contained within any of the Materials; (vi) use any Open Source Software in connection with any of the Materials in any manner that requires, pursuant to the license applicable to such Open Source Software, that any of the Materials be (a) disclosed or distributed in source code form, (b) made available free of charge to recipients, or (c) modifiable without restriction by recipients; (vii) assign, sublicense, sell, resell, lease, rent, disseminate, distribute, or otherwise transfer, make available, or convey, or pledge as security or otherwise encumber, Customer’s rights granted hereunder; (viii) host, save, preserve, memorialize, aggregate, collect, compile, or otherwise retain or store any of the Materials (or any copy thereof); (ix) use the Materials in any manner not expressly authorized by this Agreement, or (x) use the Materials, Aunt Bertha API to create or benefit from any service that is competitive with the Platform or any other Aunt Bertha service. Customer shall ensure that any of the Materials complies with all applicable laws, statutes, regulations or rules and will not use any of the Materials in connection with any illegal activities. All copies of the Materials in Customer’s possession, or any part thereof, shall be identified by title, shall reproduce Aunt Bertha’s copyright notice (if any) and proprietary legend (if any), and shall be marked confidential (to the extent that the Materials are marked confidential or otherwise identified to be confidential by Aunt Bertha). For purposes of this Agreement, any copy (e.g. cached representation) of all or any portion of the Materials shall be treated in the same manner as the Material itself, and all obligations as to Materials as set forth in this Agreement, with respect to copies of such Materials, shall survive indefinitely. Each Party shall comply with any and all laws and regulations of any and all countries, states, or other jurisdictions that apply to the use and display of the Materials.
3.2. Authorized Customer Users. Customer acknowledges and agrees that, as between Customer and Aunt Bertha, Customer shall be responsible for all acts and omissions of Authorized Customer Users, and any act or omission by an Authorized Customer User which, if undertaken by Customer would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer. Customer shall ensure that all Authorized Customer Users are aware of the provisions of this Agreement as applicable to such Authorized Customer User’s use of the Services and shall cause Authorized Customer Users to comply with such provisions. Aunt Bertha reserves the right to establish a maximum amount of storage and a maximum amount of data that Customer or its Authorized Customer Users may store within, or post, collect, or transmit on or through the Services. Obligations with respect to Authorized Customer Users’ use of the Platform are forth in the User Terms. In the event of a conflict between this Agreement and the User Terms, the User Terms shall prevail. No Customer Affiliate will have any right to use the Services unless and until the Customer expressly purchases a license to use the Services in and Order. If Customer expressly purchases a license to the Services for Customer Affiliates, such Customer Affiliates may use the Services purchased on behalf of and for benefit of Customer or Customer Affiliates as set forth on the Order Form in accordance with the terms of this Agreement. Customer shall at all times retain full responsibility for Customer Affiliate’s compliance with the applicable terms and conditions of the Agreement. Customer Affiliates’ individual employees, agents, or contractors accessing or using the Services (subject to payment for use rights pursuant to an Order) on Customer Affiliates’ behalf under the rights granted to Customer or Customer Affiliates pursuant to this Agreement shall be “Authorized Customer Users” for purposes of the Agreement.
3.3. Customer Accounts. Customer is responsible for complying and ensuring all Authorized Customer Users comply with the Agreement, whether directly or through any account that Customer may establish through or on the Site. It is the responsibility of Customer to obtain and maintain all Customer equipment and services needed for access to and use of the Services and pay all charges related thereto. It is also Customer’s responsibility to maintain the confidentiality of password(s), including any password of a third-party site that Aunt Bertha may allow Customer to use to access the Services, and Customer is responsible for all activities that occur using such account passwords. Should Customer believe any password or security for the Services has been breached in any way, Customer must immediately notify Aunt Bertha. Customer shall not share account passwords, let others access or use the Customer account or do anything else that might jeopardize the security of the Customer account passwords. Customer shall notify Aunt Bertha if account passwords are lost, stolen, if Customer is aware of any unauthorized use of account passwords on the Services or if Customer is aware of any other breach of security in relation to the Services.
3.4. Suspension. Aunt Bertha reserves the right, in its reasonable discretion, to temporarily suspend access to and use of the Services: (i) during planned downtime for upgrades and maintenance to the Services (Aunt Bertha will generally provide notice of such planned downtime on the support pages applicable to the Services); (ii) during any unavailability caused by circumstances beyond Aunt Bertha’s reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures (including, without limitation, inability to access the Internet), or acts undertaken by third parties; or (iii) if Aunt Bertha suspects or detects any malicious software connected to Customer’s account or use of the Services by Customer or Authorized Customer Users.
4.1. Credentials. In order to use and access the Platform, Authorized Customer Users must obtain credentials. Customer may not share its credentials with any third party, shall make commercially reasonable efforts to keep such credentials and all login information secure and shall use the credentials as Customer’s sole means of accessing the Services.
4.2. Data. Data will be provided in the form and format that Aunt Bertha makes such Data available to its general customer base for the applicable Services. Any technical changes to the format, frequency, and volume of Data delivered requested or required by Customer shall not be binding on Aunt Bertha without the prior written consent of Aunt Bertha, which may be withheld for any reason but shall not be unreasonably withheld.
4.3. Site. In order to access certain password-restricted areas of the Site and to use certain Services and Materials offered on and through the Site, Customer must ensure the successful registration of a user account for each of its Authorized Customer Users with Aunt Bertha. To register an account, each of its Authorized Customer Users must submit a working email address and a preferred password through the account registration page on the Site.
5.1. Customer Content. Customer shall retain all right, title and interest in and to the Customer Content. Customer hereby grants to Aunt Bertha the right to use the Customer Content during the Subscription Term for purposes of making available the Services to Customer.
5.2. Performance Data. Customer hereby grants to Aunt Bertha the right to collect and use data related to the use of and calls to the Aunt Bertha API (the “Performance Data“) so as to analyze the performance of the Aunt Bertha API in order to improve its operation. None of this data will be the data of any Authorized Customer User or of the Customer except to the extent necessary for evaluation of the performance of the Aunt Bertha API and associated systems. The Performance Data will never include any personally identifiable information of an Authorized Customer User or of the Customer.
5.3. Materials. Aunt Bertha shall provide Customer the Documentation to be used in accessing and using the Services. Aunt Bertha hereby grants to Customer a limited, personal, non-exclusive and non-transferable right to access, use and to display the Materials. Customer’s right to use the Materials is conditioned on Customer’s compliance with the Agreement. Except for the limited license to access Services and Materials that is expressly granted herein, Customer shall have no other rights in the Services or any Materials.
- FEES AND PAYMENT
6.1. Fees. Customer agrees to pay all applicable fees (“Fees”) related to the implementation and use of the Services as set forth on the Order Form, including a Subscription Fee as set forth in the Order Form for access to the Services.
6.2. Payment. By providing a payment method, Customer expressly authorizes Aunt Bertha to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals, all of which depend on Customer’s particular membership and utilized services. Customer shall pay to Aunt Bertha the undisputed Subscription Fees in accordance with the payment terms in the Order Form, failing which Aunt Bertha shall be entitled to charge to Customer interest at the rate of 1.0% per month for the delayed payment if Aunt Bertha provides a notice of late payment to Customer and Customer fails to pay such undisputed late payment within thirty (30) days of Customer’s receipt of such late payment notice. An invoice that is generated in accordance with this Agreement cannot be “disputed.”
- TERM AND TERMINATION
7.1. Subscription Term. The Subscription Term shall automatically renew for consecutive periods of time equal to the initial Subscription Term unless cancelled by Customer within sixty (60) days of the end of the then-current Subscription Term. The pricing during any automatic renewal term shall be the same as that during the immediately prior Subscription Term unless Aunt Bertha has provided written notice to Customer, of which email is acceptable, of a pricing increase at least thirty (30) days before the end of such prior Subscription Term, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then current Subscription Term.
7.2. Customer Cancellation. Customer may cancel a subscription at any time by emailing Aunt Bertha at email@example.com. In the event of account cancellation by Customer, no refunds of Fees shall be provided and Customer shall be responsible for paying any balance due on Customer’s account. Customer agrees that Aunt Bertha may charge any unpaid fees to Customer’s provided payment method and/or send Customer an invoice for such unpaid fees. Customer agrees and acknowledges that upon cancellation, (1) Aunt Bertha may immediately suspend the Customer account; and (2) Fees will not continue to accrue, but Customer will not receive any refunds of Fees already paid; (3) Aunt Bertha reserves the right to delete all Customer Content and any other data in the normal course of operation.
7.3. Termination for Convenience. Either party may terminate this Agreement at any time for convenience with at least sixty (60) days prior written notice of such termination. In the event that Aunt Bertha terminates the Agreement for convenience pursuant to this Section 7.3, Customer shall be entitled to a refund of all prepaid, unused Subscription Fees paid by Customer to Aunt Bertha (the “Refund”), which Refund Aunt Bertha shall pay to Customer within thirty (30) days of the effective date of termination.
7.4. Termination for Material Breach. Either party may terminate this Agreement if the other party ceases the conduct of active business. In addition, either party may terminate this Agreement in the event that the other party materially breaches any other terms and conditions of this Agreement and fails to cure such breach within thirty (30) days of receiving written notice from the other party describing such breach. Notwithstanding the foregoing, Aunt Bertha’s loss of a material data source and resulting failure to satisfy any obligation under this Agreement shall not be deemed a breach of this Agreement. If Aunt Bertha believes, in its sole reasonable discretion, that Customer has violated or attempted to violate any term, condition or the spirit of this Agreement, the license afforded Customer pursuant to this Agreement may be temporarily or permanently revoked, with or without notice to Customer.
7.5. Termination for Bankruptcy or Insolvency. In the event either party voluntarily files a petition in bankruptcy or has such a petition involuntarily filed against it (which petition is not discharged within thirty (30) days after filing) or is placed in a receivership or reorganization proceeding or is placed in a trusteeship involving an insolvency, the other party may terminate this Agreement by giving a written termination notice, which termination shall become effective upon receipt.
7.6. Effects of Termination. Upon expiration or termination of this Agreement, Customer’s right to receive and use any Services pursuant to the terms of this Agreement shall cease immediately, Customer shall no longer access the Services, and Customer shall not circumvent any security mechanisms contained therein. Any termination shall be without prejudice to any other rights or remedies that each party may have against the other party with respect to any default under this Agreement, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement. Upon expiration or termination of this Agreement, and within thirty (30) days of the date of expiration or termination, Customer shall destroy all Materials in its possession and provide a certificate to Aunt Bertha signed by a duly authorized representative certifying such destruction.
- ELECTRONIC COMMUNICATIONS
Customer consents to receiving electronic communications from Aunt Bertha. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Services. These electronic communications are part of Customer’s relationship with Aunt Bertha. Customer agrees that any notices, agreements, disclosures or other communications sent by Aunt Bertha to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
- PRIVACY AND CONFIDENTIALITY
9.2. Confidentiality. Customer and Aunt Bertha agree as follows with respect to Confidential Information: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) to not reproduce Confidential Information of the other party, and to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (iii) to not create any derivative work from the Confidential Information of the other party; (iv) to restrict access to the Confidential Information of the other party to its personnel, agents, and/or consultants, who have a need to have access and who have been advised of and have agreed in writing to treat such Confidential Information in accordance with this Agreement; and (v) to return or destroy all Confidential Information disclosed by the other party that is in its possession upon termination or expiration of the Subscription Term. Notwithstanding the foregoing, the obligations contained in this paragraph will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under the Agreement, including to make such court filings as it may be required to do.
9.3. HIPAA. Under certain circumstances, Customer and its Authorized Customer Users may be presented with the ability to send referrals or inquiries directly to CBOs that are also users of the Site and the Services. If Customer is a “covered entity” or “business associate” as those terms are defined in regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), at 45 CFR 160.103, Customer is responsible for ensuring that disclosures that Customer or its Authorized Customer Users make to any CBO comply with HIPAA requirements. For the avoidance of doubt, Aunt Bertha is not a business associate of any CBO and does not sign a “business associate agreement” or other written agreement governing the use or disclosure of “protected health information” with any CBO. Between Customer and Aunt Bertha, Customer is solely responsible for entering into a business associate agreement with any entity if, in Customer’s sole interpretation and discretion, one is necessary to disclose or receive information to that entity. As between Aunt Bertha and Customer, Customer agrees that it takes responsibility for (a) access to and use of the Services and the Documentation, by Customer, Authorized Customer Users, or other third parties accessing the Services or Documentation on Customer’s behalf, (b) ensuring that Customers’ and Authorized Customer Users’ use of the Services conforms with all applicable laws and regulations, including, but not limited to HIPAA, and complies with all of Customer’s applicable internal policies and procedures, including policies related to the collection of consent from individuals for the use or disclosure of personal information and Protected Health Information (as that term is defined in HIPAA); and (c) for the reliability, integrity, legality, and accuracy and appropriateness of Authorized Customer Users’ use of the Services and decision-making related thereto. While Aunt Bertha may provide functionality as a part of the Services to assist with collecting consent from individuals, it is solely the Customer’s decision to use or not use such functionality, and any such decision by Customer will not be interpreted to make Aunt Bertha responsible for Customer’s failure to comply with its’ responsibilities set forth in this paragraph.
- LINKS TO THIRD-PARTY SITES
Aunt Bertha may provide links on the Services to third-party sites. Aunt Bertha is not obligated to review any third-party sites that Customer visits through a link to from the Services, Aunt Bertha does not control any of the third-party sites, and is not responsible for any of the third-party Services (or the products, services, or content available through any of them). Aunt Bertha does not endorse or make any representations about such third-party sites, any information, software, products, services, or materials found there or any results that may be obtained from using them. Customer’s access of any third-party sites shall be entirely at Customer’s own risk and Customer shall follow the privacy policies and terms and conditions for those third-party sites. Certain areas of the Services may allow Customer to interact and/or conduct transactions with one or more third-party sites, and, if applicable, allow Customer to configure its privacy settings in that third-party site account to permit Customer’s activities on the Services to be shared with Customer’s contacts in Customer’s third-party site account.
- UNAUTHORIZED ACTIVITIES RELATED TO THE SITE
11.1. Permitted Purpose. Use of the Services shall be solely for the purposes contemplated and allowed by this Agreement (the “Permitted Purposes”). Any other use of the Services beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of the Services. By way of example and not limitation, Customer shall not, and shall now allow its Authorized Customer Users to use the Services in any of the following ways: (i) In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law; (ii) To stalk, harass, or harm another individual; (iii) To impersonate any person or entity or otherwise misrepresent Customer’s affiliation with a person or entity; (iv) To interfere with or disrupt the Services or servers or networks connected to the Services; (v) To use any data mining, robots, or similar data gathering or extraction methods in connection with the Services; or (vi) To Attempt to gain unauthorized access to any portion of the Services or any other accounts, computer systems, or networks connected to the Services, whether through hacking, password mining, or any other means.
11.2. Use of the Services. Customer and its Authorized Customer Users are entirely responsible for the content of, and any harm resulting from, any Customer Content or other content posted or uploaded by Customer or such Authorized Customer Users to the Services, regardless of whether the Customer Content in question constitutes text, graphics, audio files, information, or computer software. By making Customer Content publicly available, Customer represents and warrants that: (i) The posting, downloading, copying and use of the Customer Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party; (ii) The Customer Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content; (iii) The Customer Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing); (iv) The Customer Content does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party; (v) The Customer Content is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods; (vi) The Customer Content is not named in a manner that misleads readers into thinking that Customer is another person or company; (vii) The Customer Content does not include racially, ethnically, obscene, sexually explicit or otherwise offensive language or use the Services to discuss, incite illegal activity or promote hatred against individuals or groups based on race, ethnic origin, religion, disability, gender, age, veteran status, sexual orientation, or gender identity. Customer agrees to indemnify, defend and hold Aunt Bertha harmless from and against all damages, losses, claims and costs (including reasonable attorneys’ fees) incurred by Aunt Bertha as a result of the placement of Customer Content on the Services by Authorized Customer Users. Customer shall ensure that all Authorized Customer Users shall be at least 13 years of age. If any Authorized Customer Users are not 18 they shall have permission of parent. In addition, Customer agrees to not in any way, directly or indirectly, by contract or otherwise, block or restrict any other Aunt Bertha customer or CBO from obtaining any Seeker Data made available by Aunt Bertha through the Site or Services.
- SPECIFIC TERMS FOR CBOs
12.1. Customer CBO. In addition to all of the other terms in this Agreement, Customers who are CBOs, and the Authorized Customer Users who use the Services on the CBO’s behalf are subject to the additional requirements described in this Section 12. By claiming a CBO on our Site as required herein, either through the workflow maintained at https://www.auntbertha.com/claims or through any other method that may now or in the future become available, Customer represents and warrants that Customer is authorized to act on its own behalf, and on the behalf of the CBO, and its Authorized Customer Users (collectively “Customer CBO”), and to bind Customer CBO to the terms of this Agreement. CBOs and their Authorized Customer Users are granted access to certain functionality through the Site to help the CBO with intake management, appointment scheduling, communication and other tasks related to individuals who are seeking services from them (“CBO Tools”). CBO Tools and their use by Authorized Customer Users are subject to all terms of this Agreement, in addition to any supplemental terms related to specific functionality described in this Section 12.
12.2. Referrals. Customer understands that by using the Services, the Customer CBO will be granted access to referrals and inquiries made by or on behalf of Community Users of the Services who may be seeking help from the Customer CBO. These referrals are content generated by and are the exclusive property of the Community Users who submit them. Aunt Bertha has and is able to grant Customer the limited license described in this Agreement, to use any inquiry or referral only for the purpose of making further contact with the Community Users who submitted it, or the individual who is the subject of the inquiry or referral. The Customer CBO is not permitted to use any inquiry or referral for any other purpose, unless that purpose is explicitly authorized by Aunt Bertha, the Community Users who submitted it, or the individual who is the subject of the inquiry or referral. Obtaining consent from the appropriate individual(s) for any other use of referrals or inquiries is the responsibility of Customer. Customer agrees that between the Customer CBO and Aunt Bertha, the Customer CBO is solely liable for its use of any referrals or inquiries sent to it, whether or not such use is not explicitly authorized by this Agreement. Aunt Bertha reserves the right, but does not have any obligation, to terminate this Agreement according to the terms of Section 7, if the Company CBO is misusing referrals or inquiries from other Community Users.
12.3. Modifications. By claiming the Customer CBO, Customer will be granted access to make modifications or updates to the information on the Site related to the Customer CBO. Any information about the Customer CBO that Customer uploads to the Site is Customer Content and is subject to all other terms of this Agreement related to Customer Content. In certain circumstances, Customer may be granted the functionality to reply directly to a referral or inquiry made by Community Users that represent a health care or care management organization. If Customer makes use of this functionality, Customer agrees to grant the Community Users, and the organization that the Community Users represents, if any, a non-exclusive, perpetual, irrevocable, and royalty-free license to use Customer’s reply for the purposes of maintaining or updating medical or other records held by such Community Users, and for any other purpose related to the care of or providing services to the individual who is the subject of the referral or inquiry. This license will survive the termination of this Agreement for any reason.
12.4. Consent. Aunt Bertha is aware that some CBOs provide services to individuals where the records related to those services are subject to the privacy requirements established in 42 CFR Part 2 – Confidentiality of Substance Use Disorder Patient Records. If the Customer CBO provides such services, Customer agrees that the Customer CBO is solely liable for maintaining compliance with 42 CFR Part 2, including but not limited to collecting proper written or electronic consent from any individual where such consent is necessary to further disclose that individual’s information for any purpose. While Aunt Bertha may provide Customer with communication tools related to the services that the Customer CBO provides, it is the Customer CBO’s responsibility to ensure that those tools, and any other CBO Tools, are used in compliance with all applicable laws and regulations, including 42 CFR Part 2.
- PROPRIETARY RIGHTS
13.1. Aunt Bertha Marks. “Aunt Bertha” is a trademark that belongs to Aunt Bertha, a Public Benefit Corporation. Other trademarks, names and logos on the Services are the property of their respective owners. Unless otherwise specified in this Agreement, all Materials, including the arrangement of them on the Services are the sole property of Aunt Bertha, a Public Benefit Corporation. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license holder. Customer will not remove or alter Aunt Bertha Marks that may be included with any Materials.
13.2. Non-Customer Originated Data License. The Non-Customer Originated Data is provided to Customer under a nonexclusive license and not in connection with a sale. Other than the non-exclusive license granted to Customer for the Purpose hereunder, Aunt Bertha and/or its licensors retain all right, title and interest, including all copyright, patent, trade secret and other intellectual property rights, in and to the Aunt Bertha API, Non-Customer Originated Data and any Materials provided by Aunt Bertha pursuant to the Agreement. Customer receives no right, title or interest in or to the Aunt Bertha API, Non-Customer Originated Data or any other property owned by Aunt Bertha or provided to Customer by Aunt Bertha other than the non-exclusive license granted solely for the Purpose herein. Notwithstanding anything else in this Agreement or otherwise, Aunt Bertha may monitor Customer’s use of the Services and use data and information related to such use and the Customer Content in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Aunt Bertha and Customer, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by Aunt Bertha. Customer hereby acknowledges that Aunt Bertha will be compiling Aggregated Statistics based on the Customer Content input into the Services and Customer agrees that Aunt Bertha may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or Customer Confidential Information. Notwithstanding anything to the contrary, nothing in this Agreement is intended to provide any ownership or other rights (other than use rights as licensed herein) to Customer as to any Non-Customer Originated Data or any other data that Customer collects by way of Customer’s use of or in connection with the Services.
13.3. Feedback. All right, title and interest in the Aunt Bertha API, Services and any other Materials furnished or made available hereunder, including without limitation all data generated from Customer’s use of the Materials and Services, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer or its Authorized Customer Users regarding the Site, Platform, Aunt Bertha API, or Services, including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by Aunt Bertha or Aunt Bertha’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Aunt Bertha all evaluations, ideas, feedback and suggestions made by Authorized Customer Users whether by transmitted to Aunt Bertha by phone, email, or otherwise regarding the Site, Materials, Aunt Bertha API, and Service (collectively, “Feedback”) and all intellectual property rights in the Feedback.
13.4. To strengthen connections between Seekers and helper organizations such as Customer and to enhance the continuity of social care delivered to Seekers, Aunt Bertha supports functionality within the Site and Services for Authorized End Users to view a given Seeker’s history of referrals completed on or through the Site or Services. This functionality is made possible by Aunt Bertha customers and other helper organizations agreeing to exchange Seeker Data with each other through Aunt Bertha. Customer wishes to use this functionality.
Therefore, Customer agrees Aunt Bertha may store, process, and disclose Seeker Data submitted by Authorized End Users in order to facilitate the exchange of Seeker Data with participating helper organizations, solely for purposes of delivering social care to the Seeker to whom the data pertains. While Customer may disconnect itself from the functionality that allows the exchange of Seeker Data with other helper organizations, the rights granted to Aunt Bertha under this paragraph are non-exclusive and irrevocable as to any Seeker Data exchange prior to such disconnection.
Customer is responsible for ensuring Authorized End Users only query or use Seeker Data from the Site or Services because Customer is providing services to the Seeker to whom the Seeker Data pertains at the time of the query or use. Customer will not query or use Seeker Data for any other purpose.
14.1. Customer Indemnity. Customer will defend, indemnify and hold harmless Aunt Bertha, and its respective directors, officers, employees and agents, from and against any and all claims, costs, losses, damages, judgments and expenses (including reasonable attorneys’ fees) arising out of or in connection with any third-party claim to the extent such claim arises from (i) Customer or Authorized Customer User negligence or willful misconduct; (ii) Customer or Authorized Customer User violation of the terms of this Agreement; (iii) use of the Services by Customer or Authorized Customer User; (iv) any products or services offered or otherwise provided by Customer; (v) Customer’s use of the Data other than as permitted under this Agreement (vi) any claim by a Community User or any other person stemming from Customer or and Authorized Customer User’s interactions with such person by way of the Services, or otherwise or (vi) any violation of applicable local, state, or federal laws or regulations by Customer and Authorized Customer Users. At Customer’s expense, Aunt Bertha reserves the right to assume the exclusive defense and control of any claim hereunder, or any matter otherwise subject to indemnification by Customer and, in such case, Customer agrees to cooperate with Aunt Bertha’s defense of such claim.
14.2. Aunt Bertha Indemnity. Aunt Bertha will defend at its expense any cause of action brought against Customer, to the extent that such cause of action is based on a claim that the Services, as delivered by Aunt Bertha to Customer, infringe a United States patent, copyright, or trade secret of a third party. Aunt Bertha will pay those costs and damages finally awarded against Customer pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by Aunt Bertha. Customer may retain its own counsel at Customer’s own expense. Aunt Bertha shall have no liability for any claim of infringement based on: (i) Services which has been modified by parties other than Aunt Bertha where the infringement claim would not have occurred in the absence of such modification; (ii) Customer’s use of the Services in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer’s use of the Services outside the permitted scope of the Agreement. Should the Services become, or in Aunt Bertha’s opinion is likely to become, the subject of a claim of infringement, Aunt Bertha may, at its option, (i) obtain the right for Customer to continue using the Services, (ii) replace or modify the Services so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and use of the Services. Upon such termination, Customer shall cease accessing the Services and Aunt Bertha will refund to Customer, as Customer’s sole remedy for such license termination, the Subscription Fees paid by Customer for the terminated license for the past twelve months. THIS SECTION 14.2 STATES THE ENTIRE LIABILITY OF AUNT BERTHA WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE SERVICES.
14.3. Indemnification Procedures. The parties obligations as set forth in this Section 14 are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation to the indemnifying party in good faith in the defense of any such claim.
15.1. THE SITE, THE SERVICES, AND MATERIALS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. CUSTOMER AND AUTHORIZED CUSTOMER USERS ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE. AUNT BERTHA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE SITE, THE SERVICES AND THE MATERIALS, WHICH INCLUDES BUT IS NOT LIMITED TO, ANY IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AUNT BERTHA MAKES NO WARRANTY THAT THE SITE OR SERVICES WILL MEET CUSTOMER REQUIREMENTS OR THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. AUNT BERTHA MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER THROUGH THE SITE OR FROM AUNT BERTHA (OR ITS AFFILIATES, SUBSIDIARIES, LICENSORS OR AGENTS) SHALL CREATE ANY WARRANTY. AUNT BERTHA DISCLAIM ALL EQUITABLE INDEMNITIES. ADDITIONALLY, AND NOT IN LIMITATION OF THE FOREGOING, OTHER THAN AS EXPRESSLY SET FORTH HEREIN, AUNT BERTHA DOES NOT WARRANT THE ACCURACY OR CORRECTNESS OF ANY DATA PROVIDED UNDER THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
15.2. Notwithstanding the above warranty disclaimers, Aunt Bertha warrants that the Services (i) will run substantially in accordance with their Documentation; and (ii) will be performed in a professional and workmanlike manner, consistent with industry standards. Each Party represents and warrants to the other that it has the full corporate right, power, and authority to enter into this Agreement. Customer represents and warrants to Aunt Bertha that its use of the Services, including the Data, shall be conducted in accordance with applicable laws, rules or regulations, industry standards and this Agreement.
- LIMITATION OF LIABILITY
16.1. Disclaimer of Damages. SUBJECT TO SECTION 16.3, IN NO EVENT WILL CUSTOMER, AUNT BERTHA (OR ITS AFFILIATES, SUBSIDIARIES, LICENSORS OR AGENTS) BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
16.2. Liability Cap. SUBJECT TO SECTION 16.3, THE CUMULATIVE LIABILITY OF CUSTOMER, AUNT BERTHA (OR ITS AFFILIATES, SUBSIDIARIES, LICENSORS OR AGENTS) FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION BASED IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO AUNT BERTHA BY CUSTOMER OR ON CUSTOMER’S BEHALF DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
16.3. Exclusions. THE LIMITATIONS SET OUT IN SECTIONS 16.1 AND 16.2 DO NOT APPLY OR LIMIT A PARTY’S LIABILITY WITH RESPECT TO (A) FEES DUE BY CUSTOMER FOR USE OF MATERIALS OR SERVICES, (B) SECTION 9.2 (“CONFIDENTIALITY”), (C) CUSTOMER’S MISAPPROPRIATION OF MATERIALS (INCLUDING DATA), SERVICES OR OTHER INTELLECTUAL PROPERTY, OR (D) SECTION 14 (“INDEMNITY”).
- LOCAL LAWS; EXPORT CONTROL
Aunt Bertha controls and operates the Services from its headquarters in the United States of America and the entirety of the Services may not be appropriate or available for use in locations outside of the United States of America. If Customer or Authorized Customer Users use the Services or Services outside the United States of America (provided such use has been permitted in writing), Customer and Authorized Customer Users are solely responsible for following applicable local laws.
18.1. Notice. Any notice from Customer to Aunt Bertha under this Agreement will be in writing and delivered by personal delivery, overnight courier, confirmed facsimile, confirmed email, or certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with an overnight courier, five (5) days after deposit in the mail, or upon confirmation of receipt of facsimile or email and any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached. Notices will be sent to a party at its address set forth on the Order Form or such other address as that party may specify in writing.
18.2. Assignment. Aunt Bertha may assign or otherwise transfer its rights or obligations in whole or in part, without consent, to a third party in connection with the merger, consolidation or sale of substantially all of the assets or voting control. Customer shall not assign or otherwise transfer its rights or obligations in whole or in part, without consent, to a third party or in connection with the merger consolidation or sale of substantially all of the assets or voting control, and such consent shall not be unreasonably withheld. Any purported assignment of the Agreement in violation of this Section 18.2 will be deemed void.
18.3. Audit. Aunt Bertha will have the right at its sole cost and expense to have periodic audits of Customer performed on not less than fifteen (15) days prior written notice by Aunt Bertha to Customer for the purpose of determining Customer’s compliance with this Agreement; provided that, Aunt Bertha may not have more than one (1) such audit in any 12-month period unless Aunt Bertha discovers any default on the part of the Customer, in which event one (1) additional audit in such twelve (12) month period to be conducted by Aunt Bertha shall be at the cost and expense of the Customer.
18.4. Independent Contractor. The parties are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement. Neither party shall make any warranties or representations on behalf of the other party.
18.5. Governing Law. Texas state law and applicable U.S. federal law, without regard to the choice or conflicts of law provisions, will govern this Agreement. Foreign laws do not apply. Any disputes relating to this Agreement, the Site or the Services will be heard in the courts located in Travis County, Texas and each party irrevocably submits to the jurisdiction of Travis County, Texas.
18.6. Severability and Reformation. If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.
18.7. Headings. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
18.8. Waiver. Lack of enforcement of any terms of this Agreement shall not constitute a waiver of the right to enforce such terms.
18.9. Entire Agreement. This Agreement constitutes the entire agreement between the parties and, supersedes all prior or contemporaneous negotiations, discussions or agreements between the parties with respect to the subject matter herein. This Agreement may be amended or changed only by a writing signed by both parties.
18.10. Survival. The Ownership (Section 5), Proprietary Rights (Section 13), Indemnities (Section 14), Warranties (Section 15), Limitation of Liability (Section 16) and General (Section 18) provisions shall survive any termination of the Agreement.
18.11. Restricted Rights. Use of any software provided by Aunt Bertha hereunder by or for the United States Government is conditioned upon the Government agreeing that the software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. If applicable, Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the software, when accessed by the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such access.
18.12 Changes to Terms. Aunt Bertha may change, update, add or remove provisions (collectively, “Modifications”) of this Agreement from time to time. Aunt Bertha will inform Customer of any material Modifications to this Agreement by posting them on the Site. If Customer objects to any such Modifications, Customer’s sole recourse shall be to cease using this Services. Continued use of this Services following notice of any such Modifications indicates Customer acknowledges and agrees to be bound by the Modifications. This Agreement may be superseded by expressly-designated legal notices or terms located on particular pages of this Services. These expressly-designated legal notices or terms are incorporated into this Agreement and supersede the provision(s) of this Agreement that are designated as being superseded.