[updated October 29, 2021]
Customer is subscribing to use certain Aunt Bertha Services [Aunt Bertha’s commercially available technology platform options (including software as a service, functionality, integrations, data, and communication options) for use and configuration by Customer and Customer self-designated authorized users]. Customer is able to set up and manage the Customer’s own administrative users and other authorized users (and groups of users) and may elect to use various automated configuration options and functionality within the subscribed Services. Aunt Bertha’s standard Services do not require Aunt Bertha to access Customer’s sensitive data within the Aunt Bertha Services. Aunt Bertha personnel shall have no responsibility to enter any Customer data or send or receive any data on behalf of the Customer, all such options are available for use and configuration by Customer and Customer’s Authorized Users. Without express written agreement by an authorized representative of Aunt Bertha, Customer agrees not to request or require Aunt Bertha to enter, receive, or request any data on behalf of the Customer.
In the event Customer may request potential customized options for professional services and unique deliverables that Aunt Bertha may be able to provide, our Aunt Bertha team will communicate and engage in good faith efforts to work out the details for any additional customer-specific requirements and deliverables that are outside the parameters of the current functionality and configurations available to our Customers within the Aunt Bertha Services.
“Aunt Bertha” means Aunt Bertha, a Public Benefit Corporation, also doing business as findhelp and findhelp.org.
“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 to Aunt Bertha through the Service, 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 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 the specific individual person who 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 Authorized Customer User 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 , www.findhelp.org , www.findhelp.com as well as all associated sites linked or redirected to such sites 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 each period of time that Customer has subscribed to the Services stated in an Order Form, or extension. Unless otherwise agreed in writing, each Subscription Term will be for consecutive twelve-month periods 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 maintains compliance with) Aunt Bertha’s then current User Terms.
2.2. API License. If Customer purchases 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: (i) 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; (ii) access, input, transmit, and interact with the Data solely for use with and 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; (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; and (iv) Customer will install updates to the API that Aunt Bertha makes available from time to time within thirty (30) days of Aunt Bertha making an update generally available to its customer base.
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 acknowledges 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 (1) disclosed or distributed in source code form, (2) made available free of charge to recipients, or (3) 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, or 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. 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 an Order Form. 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. 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.
- CUSTOMER CONTENT AND PERFORMANCE DATA
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.
- 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 the Subscription Fee(s) 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 full amount of all undisputed Fees in accordance with the payment terms in the Order Form. In the event, if any, Customer may dispute any invoiced Fees, Customer will provide written notice of the amount for Fees and details in writing prior to the due date for any such Fees. For any undisputed untimely paid Fees, Aunt Bertha may also charge Customer any costs of collection (including reasonable legal fees) and 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. If Customer has provided a credit card in connection with purchasing access to the Service, Customer agrees that the subscription Fees will be charged, in advance, to a valid credit card as per the credit card authorization that was completed by Customer in purchasing access to the Service. Customer agrees to keep a valid credit card on file during the entire term of this Agreement.
- TERM AND TERMINATION
7.1. Subscription Term. The Subscription Term shall automatically renew for consecutive periods of time (each a Subscription Term) equal to the initial Subscription Term unless cancelled by Customer at least sixty (60) days before the end date the then current Subscription Term. The subscription fee pricing during any consecutive automatic renewal Subscription Term will remain unchanged from 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 notice of the date of such cancellation to Aunt Bertha at [email protected]. In the event of such 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 the effective date of such a cancellation, (i) Aunt Bertha may immediately suspend the Customer account; and (ii) Fees will not continue to accrue, but Customer will not receive any refunds of Fees already paid; (iii) 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 (calculated for the days remaining prepaid, if any, in the current Subscription Term from the termination date) 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.
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. Subject to the notice requirements in Section 18.1, 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 (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) 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 (i) 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 (ii) 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. Aunt Bertha’s obligations related to Customer entered Protected Health Information (as defined under HIPAA), if any, will be as set forth in the attached Appendix B Business Associate Agreement (“BAA”) between Customer and Aunt Bertha. In addition, under certain circumstances, Customer and its Authorized Customer Users may be presented with the ability to send referrals or inquiries directly to CBOs and other entities and individuals 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, including through the Services, to any CBO or other entity or individual comply with HIPAA requirements.
9.4 Personally Identifiable Information and Sensitive Personally Identifiable Information. Each party will be responsible to comply with each party’s respective obligations related to Protected Health Information and Sensitive Personally Identifiable Information as defined under applicable federal and state law. In addition, under certain circumstances, Customer and its Authorized Customer Users may be presented with the ability to send such information through referrals or inquiries and engage in other forms of data exchange and requests for data directly (and indirectly via user-selected options to transmit via text or email) to and from other users (individuals and/or entities) of the Site and the Services and the findhelp.org technology platform. Customer is responsible for ensuring that any data entry and sharing (through direct or indirect communication or through requests do do) that Customer or its Authorized Customer Users may make to, or request from, any other user or entity complies with applicable federal and state laws. For the avoidance of doubt, Aunt Bertha is not a business associate of any CBO or any individual user and does not sign a “business associate agreement” with any CBO or any individual user. As between Customer and Aunt Bertha, Customer is solely responsible for entering into a business associate agreement or other agreement with any entity or individual if, in Customer’s sole interpretation and discretion, one is necessary to disclose or receive information to or from that entity or individual. As between Aunt Bertha and Customer, Customer agrees that it takes responsibility for (i) 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, (ii) ensuring that Customer’s and Authorized Customer Users’ use of the Services conforms with applicable federal and state 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 appropriate consent from individuals for the use or disclosure of personal information and Protected Health Information (as that term is defined in HIPAA) and of sensitive or other personally identifiable information subject to other federal and state laws of the United States; and (iii) for the reliability, integrity, legality, and accuracy and appropriateness of Authorized Customer Users’ use of the Services and decision-making related thereto. Customer understands and agrees that the Services are only to be used and accessed within the United States. 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 under applicable federal and state laws.
- 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 Platform Purpose or API Purpose, as the case may be (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 not 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 using the Services, Customer represents and warrants that: (i) the uploading, 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 years of age 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 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 Customer 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.
- AUNT BERTHA’S 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. Aunt Bertha Materials and Intellectual Property. The Materials are 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 Permitted Purpose hereunder, Aunt Bertha retains 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 Materials.
13.3. Aggregated Statistics. To assist with the functioning of the Aunt Bertha Services technology platform, and improve the platform for all users and expand the use of the platform, 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 (i) make such Aggregated Statistics publicly available, and (ii) 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. Aunt Bertha retains all rights not expressly granted herein.
13.4. Suggestions and Feedback. If Customer and any of Customer’s users may elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to the Aunt Bertha (findhelp) Site, Platform, Aunt Bertha API, or Services (including any related Technology), Aunt Bertha will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any such information or materials in any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, Aunt Bertha may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content. If Aunt Bertha makes any suggestions on using the Services, Customer re responsible for any actions you take based on any such suggestions.
13.5. Exchange of Seeker Data. 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 Customer 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 Customer 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 Customer 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; (vii) any violation of applicable local, state, or federal laws or regulations by Customer and Authorized Customer Users.
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. Warranty Disclaimer. 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. Warranties. 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”). IN ADDITION, THE LIMITATION OF LIABILITY IN SECTION 16.2 FOR ALL CLAIMS ARISING FROM OR RELATING TO A BAA OR THE PRIVACY OR SECURITY OF PROTECTED HEALTH OR PERSONALLY IDENTIFIABLE INFORMATION AND SENSITIVE PERSONAL INFORMATION SHALL BE INCREASED TO TWO TIMES (2X) THE TOTAL AMOUNT OF 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, NOTWITHSTANDING ANY LANGUAGE IN THIS AGREEMENT TO THE CONTRARY.
- 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 legal notice necessary under this Agreement and any notice by a party to the other party in the event of a breach of this Agreement will be in writing and delivered by personal delivery, documented overnight courier, confirmed email, or certified or registered mail with return receipt requested, and will be deemed given upon personal delivery, one (1) day after deposit with an overnight courier, and five (5) days after deposit in the mail, or upon confirmation of receipt of email. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached. Notices will be sent to Customer at Customer’s address set forth on the Order Form. Notices to Aunt Bertha will be sent to:
Aunt Bertha, a Public Benefit Corporation
3616 Far West Blvd. 117-454
Austin, Texas 78731
Either party may change its address by sending a notice under this Section.
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 material default on the part of the Customer, in which event one (1) additional audit in such twelve (12) month period may be conducted by Aunt Bertha which will 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 and subject to the jurisdiction of the courts located in 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. Force Majeure. Each party shall have no liability for any delay or failure to perform obligations under this Agreement if such delay or failure arises from any reasons, events, or other matters beyond the party’s reasonable control. Such causes shall include, but are not limited to, acts of God, floods, fires, pandemic, government action, loss of electricity or other utilities, or delays by the other party in providing required resources or support.
18.11. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. Any signed copy of this Agreement made by reliable means (e.g., photocopy) shall be considered an original.
18.12. 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.
18.13. 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.
18.14. Modifications to the Services. Aunt Bertha will endeavor to provide at least fifteen days advance notice of any changes in the Services platform. However, Aunt Bertha may change or modify the Services at any time with immediate effect (a) for legal, regulatory, fraud and abuse prevention, or security reasons; (b) to change existing features or add additional features to the Services (where this does not materially adversely affect Customer’s use of the Services); or (c) to restrict items or activities that Aunt Bertha deems disruptive, unsafe, inappropriate, or offensive. Customer’s continued use of the Services after the effective date of any change will constitute acceptance of that change. If any change is unacceptable to Customer, Customer agrees not to use the changed item and Customer may discontinue use of that part of the Services. Aunt Bertha will notify Customer of changes by electronically postings on applicable customer support webpages, to the applicable Services site to which the change relates, by sending an email notification, or by other electronic means or via other methods, including to any email addresses Customer provides. Customer is responsible to ensure that all of Customer’s contact information is up to date and accurate and regularly monitored.
18.15 Questions and Notifications of any Concerns. If Customer identifies or perceives any concerns with the performance of Aunt Bertha, Customer shall promptly in promptly in writing notify Aunt Bertha of any such concerns. If and only to the extent that Aunt Bertha is responsible for the concern, Aunt Bertha will be responsible to promptly resolve or remedy the concern. To the extent Aunt Bertha determines that any such concern is not within the responsibility and control of Aunt Bertha, Aunt Bertha will in writing notify Customer of such determination along with any details that Aunt Bertha may be able to provide to the Customer about the concern and other possible causes. When either party has an obligation to perform a task, such party shall fully perform any such obligation to the extent that the obligation is not disputed in good faith. To the extent that an obligation is in such a good faith dispute, the parties agree not to apply any penalties or take further action until and to the extent that the dispute is resolved through mutual agreement or legal action.
[Customer Terms v October 29 2021]
Appendix B: Business Associate Agreement
Customer and Aunt Bertha have entered into a Customer Agreement for Customer to use the Aunt Bertha Services platform options selected by Customer. As an attachment to such Customer Agreement, the Customer and Aunt Bertha enter into this Business Associate Agreement (BAA) that will apply to the extent, if any, Aunt Bertha in providing any of the agreed Services to Customer is acting as a business associate, as that term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 (“HIPAA”), and its implementing regulations at 45 C.F.R. Parts 160, 162, and 164, as amended by the Health Information Technology for Economic and Clinical Health Act of the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5 (collectively the “HIPAA Standards”). The provisions of this Agreement will apply with respect to all Protected Health Information (“PHI”), as defined in 45 CFR § 160.103, created or received by Business Associate in performing its responsibilities under the Customer Agreement. If not defined in the Customer Agreement or this BAA, capitalized terms will have the meanings for such terms under the HIPAA Standards.
- Responsibilities of Business Associate
- Business Associate will not use or disclose PHI other than as permitted or required by this Agreement, or as Required by federal Law.
- Business Associate will use appropriate safeguards and, with respect to electronic PHI, comply with the applicable provisions of 45 CFR Part 164, Subpart C, to prevent use or disclosure of PHI other than as provided for by this Agreement.
- Business Associate will mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a use or disclosure of PHI by Business Associate in violation of the requirements of this Agreement.
- To the extent Business Associate has agreed to carry out one or more of Customer’s obligations under 45 CFR Part 164, Subpart E, Business Associate shall comply with the requirements of Subpart E that apply to Customer in the performance of such obligations.
- Business Associate will ensure that any subcontractor or other agent that creates, receives, maintains or transmits PHI on behalf of the Business Associate (“Subcontractor”), agrees to the equivalent or not less stringent restrictions and conditions that apply to Business Associate through this Agreement with respect to such information, and agrees to implement reasonable and appropriate safeguards to protect the security and privacy of such PHI, by entering into an agreement with Business Associate that meets the applicable requirements of the HIPAA Standards.
- Business Associate will make its books, records, and internal practices relating to the use and disclosure of PHI received from Customer, or created or received by Business Associate on behalf of Customer, available to the Secretary of Health and Human Services (the “Secretary”) or the Secretary’s designee, in a time and manner designated by the Secretary, for purposes of the Secretary determining Customer’s or Business Associate’s compliance with the HIPAA Standards.
- Business Associate agrees to comply with any requests for restrictions on certain disclosures of PHI to which Customer has agreed in accordance with 45 CFR § 164.522 and of which Business Associate has been notified by Customer.
- At Customer’s request, Business Associate will make available PHI in Business Associate’s possession to enable Customer to respond to a request by an individual for access to PHI in accordance with 45 CFR § 164.524.
- At Customer’s request, Business Associate will make available PHI in Business Associate’s possession for amendment, and will incorporate any amendments to PHI, in accordance with 45 CFR § 164.526.
- Business Associate will document and provide to Customer such disclosures of PHI and information related to such disclosures as would be required for Customer to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 CFR § 164.528. Upon receipt of a request for an accounting directly from an individual, Business Associate will provide to the individual an accounting of disclosures made by Business Associate containing the information described in 45 CFR § 164.528.
- Business Associate shall comply with the minimum necessary requirements for use and disclosure of PHI set forth at 45 CFR § 164.502(b).
- Business associate shall not use or disclose PHI for “marketing” (as defined in 45 CFR § 164.501) or fundraising purposes, or disclose PHI in a manner that constitutes a “sale” of PHI (as defined in 45 CFR § 164.502(a)(5)(ii)(B)), without Customer’s prior written authorization.
- Business Associate shall implement the administrative, physical, and technical safeguards set forth in 45 CFR §§ 164.308, 164.310, and 164.312 that reasonably and appropriately protect the confidentiality, integrity, and availability of any electronic PHI that Business Associate creates, receives, maintains, or transmits on behalf of Customer, and, in accordance with 45 CFR § 164.316, implement and maintain reasonable and appropriate policies and procedures to enable Business Associate to comply with the requirements set forth in Sections 164.308, 164.310, and 164.312.
- Permitted Uses and Disclosures by Business Associate.
- Business Associate may use or disclose PHI to perform services for or on behalf of Customer as specified in the Customer Agreement, provided that such use or disclosure would not violate the HIPAA Standards if done by Customer or the minimum necessary policies and procedures of Customer.
- Business Associate may use PHI (i) for the proper management and administration of Business Associate; or (ii) to carry out Business Associate’s legal responsibilities
- Business Associate may disclose PHI (i) for the proper management and administration of Business Associate; or (ii) to carry out Business Associate’s legal responsibilities, if (A) the disclosure is Required by Law; or (B)(1) Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will be held confidentially and used or further disclosed only as Required by Law or for the purpose for which it was disclosed to the person; and (2) the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.
- Business Associate may provide data aggregation services relating to the health care operations of Customer.
- Business Associate may de-identify Customer PHI in accordance with the HIPAA Standards, whereupon it will no longer be subject to this Agreement. Specifically, Business Associate may monitor Customer’s use of the Services under the Customer Agreement and use data and information related to such use in an aggregated and de-identified 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, interest, and intellectual property rights in the Aggregated Statistics belong to and are retained solely by Aunt Bertha. Customer hereby acknowledges that Aunt Bertha will be compiling Aggregated Statistics based on the Customer data input into the Services and Customer agrees that Aunt Bertha may (i) make such Aggregated Statistics publicly available, and (ii) 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’s PHI.
- Business Associate Notification Obligations.
- Business Associate agrees to notify Customer of any: (i) Security Incident, as defined in 45 CFR § 164.304; (ii) use, access or disclosure of PHI which is inconsistent with the terms of this Agreement; and/or (iii) breach or suspected breach of its security related to areas, locations, systems, documents or electronic systems which contain Unsecured PHI, as defined in 45 CFR § 164.402 (collectively, an “Incident”), promptly, but in no event later than 15 days, after discovering that an Incident may have occurred.
- In the event of any such Incident, Business Associate shall provide to Customer, in writing, such details concerning the Incident as Customer may reasonably request, and shall cooperate with Customer, its regulators and law enforcement to assist in regaining possession of such Unsecured PHI and prevent its further unauthorized use or disclosure, and take reasonable remedial actions as may be required by Customer to prevent further Incidents and otherwise mitigate the effects of such Incident.
- In addition, Business Associate agrees to update the notice provided to Customer under this Section to include, to the extent possible and as soon as possible working in cooperation with Customer, any of the following information Customer is required to include in its notice to the affected individuals pursuant to 45 CFR § 164.404(c):
- the identification of each individual whose Unsecured PHI has been, or is reasonably believed by Business Associate to have been, accessed, acquired, used or disclosed during the Incident;
- brief description of what happened, including the date of the Incident and the date of discovery of the Incident, if known;
- a description of the types of Unsecured PHI that were involved in the Incident (such as whether full name, Social Security number, date of birth, home address, account number, diagnosis, disability code, or other types of information were involved);
- steps individuals should take to protect themselves from potential harm resulting from the Incident; and
- a brief description of what is being done to investigate the Incident, mitigate the harm and protect against future Incidents;
- Business Associate shall have an ongoing duty to submit updated information to Customer promptly after the information becomes available to Business Associate.
- Noncompliance by Business Associate. Upon Customer’s knowledge of a material breach by Business Associate or a material failure by Business Associate to comply with the provisions of this Agreement, Customer may either (i) provide an opportunity for Business Associate to cure the breach or failure or end the violation, and terminate this Agreement if Business Associate does not cure the breach or failure or end the violation within the time specified by Customer; (ii) immediately terminate this Agreement if Business Associate has failed to comply with a material term of this Agreement and cure is not possible; or (iii) if neither termination nor cure is feasible, report the violation to the Secretary.
- Term and Termination
- This Agreement will continue in effect until the termination or expiration of the Customer Agreement.
- Upon termination of this Agreement for any reason, Business Associate will return or destroy all PHI received from Customer, or created or received by Business Associate on behalf of Customer, and all PHI that is in the possession of subcontractors or agents of Business Associate. Business Associate will retain no copies of PHI. In the event that Business Associate determines that returning or destroying the PHI is infeasible, Business Associate will notify Customer of the conditions that make return or destruction infeasible, and will extend the protections of this agreement to such PHI and limit further uses and disclosures of such PHI to those purposes that make the return or destruction infeasible, for so long as Business Associate maintains such PHI.
- Additional Terms
- This Agreement may not be assigned by either party without the prior written consent of the other party. Subject to receiving such consent, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
- This agreement may be amended only by written consent of the parties.
- No Third-Party Beneficiaries. Nothing express or implied in this BAA is intended or implied to confer, and nothing herein shall confer, any rights, remedies, liabilities, or obligations whatsoever upon any person or entity other than the parties to this BAA. There are no third-party beneficiaries to this Agreement.
- This Agreement constitutes the entire agreement between the parties concerning its subject matter, and supersedes all prior and contemporaneous agreements and understandings, express or implied, oral or written.
- This Agreement will be deemed to have been made in Texas and will be governed by and construed in accordance with Texas law. The section headings in this Agreement are for convenience only and will not affect its interpretation.
- Any notice or other communication by either party to the other will be in writing and will be deemed to have been given when hand delivered, sent by nationally-recognized overnight delivery service, or mailed, postage prepaid, registered or certified mail, addressed as follows:
If to Customer: At the address specified on the Order Form or as otherwise documented via notice in writing to Aunt Bertha
If to Business Associate: Aunt Bertha, a Public Benefit Corporation
3616 Far West Blvd. 117-454
Austin, Texas 78731
or to such other address as either party may designate by notice pursuant to this section.
- Independent Contractors Only. The parties agree that each party is an independent contractor of the other party in the performance of each party’s respective obligations under the terms of this Agreement and the Customer Agreement. Nothing in this Agreement shall be deemed or construed to create a joint venture or partnership between Customer and Business Associate. The parties agree that neither party is acting or expected to act as an agent of Customer under the federal common law of agency [45 C.F.R § 160.402]. Accordingly, each party shall have no vicarious liability for any federal HIPAA violations of the other party.
- Communications and Notices. Customer will maintain and monitor at least one designated primary Customer electronic mail (email) address for the receipt of BAA and Customer Agreement-related communications from Aunt Bertha. Customer is responsible to at least daily monitor this email address for Agreement-related information. Customer shall notify Aunt Bertha via email with any updates or changes to the Customer’s primary email address preferably at least thirty (30) days prior to the change, or as soon as possible prior to or after such change. Any notices required to be given to Customer by Aunt Bertha under or related to this BAA shall be provided to Customer at the address and per and to the extent the contact information is provided and updated in writing by Customer. Either Party may change its notice designation for purposes of this BAA by providing a notice under this provision. In order to determine such extent and also only to the extent any such situation is within the legal control and legal responsibility of such Party, Each Party agreed to communicate in good faith to address any situations that may arise under or related to this BAA.
- Questions and Notifications of any Concerns. If Customer identifies or perceives any concerns with the performance of Aunt Bertha, Customer shall promptly in promptly in writing notify Aunt Bertha of any such concerns. If and only to the extent that Aunt Bertha is responsible for the concern, Aunt Bertha will be responsible to promptly resolve or remedy the concern. To the extent Aunt Bertha determines that any such concern is not within the responsibility and control of Aunt Bertha, Aunt Bertha will in writing notify Customer of such determination along with any details that Aunt Bertha may be able to provide to the Customer about the concern and other possible causes. When either party has an obligation to perform a task, such party shall fully perform any such obligation to the extent that the obligation is not disputed in good faith. To the extent that an obligation is in such a good faith dispute, the parties agree not to apply any penalties or take further action until and to the extent that the dispute is resolved through mutual agreement or legal action.
Except to the extent of the express modifications made in this BAA, the parties agree that all other terms of the Customer Agreement and any other agreements entered into by the parties prior to this BAA continue to apply.
[End of Appendix – BAA v October 29 2021]