Terms and conditions that govern the use of the myBalto Charitable Platform, beta software, fundraising services, and more.
THIS IS A LEGAL AGREEMENT BETWEEN YOU ("CUSTOMER" OR "YOU") AND CRYPTAIL CORP., d/b/a MYBALTO, AND/OR ITS OR THEIR AFFILIATES ("COMPANY" OR "WE" OR "US") STATING THE TERMS THAT GOVERN YOUR PARTICIPATION AS AN MYBALTO PLATFORM USER. PLEASE READ THIS MYBALTO AGREEMENT "AGREEMENT" BEFORE PRESSING THE "AGREE" BUTTON. BY PRESSING "AGREE," YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE THERMS OF THIS AGREEMENT, PRESS "CANCEL".
All capitalized and underlined terms contained in this Agreement shall have the same meaning assigned to them in the Agreement, unless otherwise defined or modified herein.
1) Definitions. The following terms shall be capitalized throughout this Agreement and shall be defined as follows:
a) “Affiliate” means any other entity that controls, is controlled by, or under common control with, Company, where “control” means the direct or indirect power to direct the affairs of the other entity through at least 50% of the shares, voting rights, participation, or economic interest in this entity.
b) Applicable Laws. The term “Applicable Laws” means any statute, law, rule, regulation, ordinance, code, directive or order of any governmental authority that is binding on a Party’s performance of its obligations under this Agreement.
c) Authorized Users. Customer’s designated administrator(s) and employees authorized to access the Services.
d) Branded Site. The term “Branded Site” shall have the meaning ascribed to in Addendum B.
e) Charity. The term “Charity” refers to the myBalto Foundation.
f) Claim. The term “Claim” refers to a final bill for services for End User’s pets submitted by Customer to Company for purposes of obtaining reimbursement of services from Charity in lieu of direct patient payment.
g) Content. The term “Content” shall mean any and all text, data, information, images, graphics, audio, video, and/or audiovisual combinations.
h) Company Content. The term “Company Content” shall mean any and all Content made available by Company as part of the Services.
i) Customer Data. The term “Customer Data” refers to any Content submitted, uploaded, imported, integrated, and/or communicated by Customer through the Services, including Personal Data.
j) Company IP. The term “Company IP” shall have the meaning ascribed to it in Section 8.
k) End User. The term “End User” refers to Customer’s customers who obtain services from Customer and also access the consumer-facing Services offered by Company through the Platform.
l) Funds. The term “Funds” refers to the monies raised by Charity through Fundraising Services and allocated to Customer for consideration of reimbursement of eligible Claims.
m) myBalto App. The term “myBalto App” has the meaning ascribed to it in Addendum A.
n) Personal Data. The term "Personal Data" means information relating to an identified or identifiable natural person, including End Users. For the avoidance of doubt, Personal Data includes personally identifiable information and personal information as defined by (i) all applicable U.S. state and federal data protection, data security and data privacy and security laws, including without limitation, the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act of 2020) (collectively, the “CCPA”), and the Virginia Consumer Data Protection Act of 2021, as amended, VA Code Title 59.1 a chapter numbered 52, consisting of sections numbered 59.1-571 through 59.1-581 (“VCDPA”); c) the Colorado Privacy Act and its implementing regulations (“CPA”), the Utah Consumer Privacy Act (“UCPA”), (e) Connecticut SB6, An Act Concerning Personal Information Privacy and Online Monitoring (“CTDPA”), (ii) any other applicable laws, rules, orders or regulations related to the protection of Personal Data in the United States that is already in force or that will come into force during the term of this Agreement, and all implementing regulations related thereto and other similar state and federal laws, and (iii) the General Data Protection Regulation (EU) 2016/679 ("GDPR"), in each case, as may be amended, superseded or replaced.
o) Platform. The term “Platform” means the hosted software solutions that offers customers the Claim processing, marketing, fundraising, and other services as made available by Company through this Agreement from time to time.
p) Service Data. The term “Service Data” shall have the meaning ascribed to it in Addendum A, Section 3.b.
q) Services. The term “Services” means the Services provided to Customer as identified within this Agreement and, as amended from time to time.
r) Trademarks. The term “Trademarks” shall mean any trademarks, service marks, design marks, symbols, logos and/or other indicia of source owned or used under license by a party, and all goodwill associated therewith.
2) Access and Use of the Services.
Company hereby grants to Customer a non-exclusive, non-transferable, non-assignable (except as otherwise permitted pursuant to Section 27(f)), worldwide right to access and utilize the Services pursuant to the terms of this Agreement.
3) myBalto Additional Terms.
As applicable, Customer shall be subject to the myBalto Additional Terms with respect to (a) Claims Technology, including Dwolla Account requirements for Fundraising Services and applicable Charity rules, (b) Branded Site terms with respect to Fundraising Services (c) the myBalto App Integration, which are expressly incorporated throughout this Agreement.
4) Authorized Users.
5) Marketing. In marketing and promoting the Services to its End Users, Customer shall company with Applicable Laws, including, but not limited to, 15 U.S. Code c. 103 §§ 7701-7713 (“CAN-SPAM”), 47 U.S.C. § 227 (“TCPA”), as amended, 15 U.S.C. §§ 6151-6155 The Do-Not-Call Implementation Act and 16 C.F.R. § 310.4(b)(1)(iii), the Federal Trade Commission Telemarketing Sales Rule (together, the “Do-Not-Call Registry”), as amended, Section 5 of the FTC Act, 45 U.S.C. § 15, as amended and 16 C.F.R. Part 255 (Endorsement Guidelines), and any and all state and federal laws regarding deceptive trade practices, and all rules and regulations promulgated under any of the foregoing.
6) Promotional Rights. Customer grants to Company a non-exclusive license to use Customer’s name and logo for the limited purpose of marketing and promoting the Services. Company shall comply with Customer’s trademark and brand guidelines in connection with such use. This promotional license may be terminated at any time by Customer upon thirty (30) days written notice to [email protected].
7) Customer Feedback. Customer grants to Company a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable (except as otherwise permitted pursuant to Section 27(f))), royalty-free, license to collect, process, store, use, display, distribute, and disseminate any suggestions or ideas, submitted to Company, whether solicited or unsolicited (collectively, the “Feedback”), provided however, that any public disclosure of Feedback shall not include any Customer Personal Data or Customer Confidential Information.
8) Licenses; Reservation of Rights.
a) Customer Trademarks. Customer grants to Company a non-exclusive license to use Customer’s Trademarks solely as necessary to provide the Services, including use of Client’s name and logo with respect to any applicable Branded Site and any marketing, promotional or fundraising Content generated on behalf of Customer in connection with such Services. Except for the limited license granted herein, Customer retains all right, title and interest, including, without limitation, all intellectual property rights, in and to Customer’s Trademarks.
b) Customer Data. Customer owns all right, title and interest in and to the Customer Data. Customer grants to Company the non-exclusive, worldwide, royalty-free sublicensable right to Process Customer Data for purposes of providing the Services and to generate applicable Service Data.
c) Company IP. Company and its licensors own all right, title and interest in and to the Services, Platform, Service Data, and Content, and all technology related thereto and intellectual property rights therein (collectively, “Company IP”). Except for the rights granted to Customer herein, nothing in this Agreement gives Customer any right or license to use, reproduce, display or distribute (electronically or otherwise) any technology or intellectual property rights in the Company IP. Company reserves all rights not expressly granted by this Agreement. Except as otherwise expressly contemplated in this Agreement, Customer shall not (a) allow any third party to access the Company IP; (b) modify, adapt, alter or translate the Company IP; (c) sublicense, lease, sell, resell, rent, loan, distribute, or transfer the Company IP; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Company IP; or (e) create derivative works based on the Company IP.
9) Customer Data Responsibilities.
Customer is responsible for all Customer Data uploaded, posted, or otherwise transmitted via the Platform or otherwise provide to Company, including materials and information stored within Customer’s account. Customer shall be solely responsible for the accuracy of all Customer Data and Company does not, and shall have no obligation to, verify any Customer Data. Functions of the Platform may allow Customer to control who may access and modify its Customer Data.
The term of this Agreement will commence on the Effective Date and shall continue unless Customer provides written notice of termination, or Company terminates for cause.
a) Payment. All fees due under this Agreement shall be paid in accordance with the terms set forth in this Agreement.
b) Renewal. The fees for the automatic renewal term will be the same as that during the immediately prior term (exclusive of initial discounts or fees for optional upgrades, additional products, or services over and above the Services set forth in this Agreement) unless Company provides prior written notice of a fee increase at least forty-five (45) days before the end of the applicable Term.
c) Late Payments. Company reserves the right, upon ten (10) days prior written notice, to suspend or terminate Services for payments that are more than thirty (30) days past due. Past due payments will accrue interest at the lesser of 1.5% monthly or the highest interest rate allowable under applicable law.
d) Taxes. Customer is responsible for paying any applicable taxes, excluding taxes based solely on Company’s net income, including, but not limited to, governmental sales, use, value-added, commodity, harmonized, GST, consumption tax, service tax or other similar taxes imposed on in connection the fees paid for the Services. To the extent Company is required to collect such taxes, the applicable tax will be included within subscription to Customer.
e) Non-Refundable. Except in the event of Company’s uncured material breach or as otherwise set forth in this Agreement, (i) fees will not be prorated upon cancellation or early termination of this Agreement, and (ii) all fees paid through the date of termination are nonrefundable.
12) Customer Support.
Customer support is available via email at [email protected] Customer support personnel shall respond to Customer’s telephone and email inquiries regarding issues relating to the Services from 7:00 a.m. to 8:00 p.m., Pacific Time, Monday through Friday, except for standard legal U.S. holidays.
Company will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Platform, Services and Customer Data in accordance with industry standard security requirements.
Each Party shall be responsible for ensuring their respective compliance with any and all Applicable Laws (including all notice and consent rules or regulations required pursuant to applicable privacy and data protection laws). Company shall not use or disclose any Personal Data submitted by Customer or its Authorized Users for any purpose other than for providing the Services. Company shall not: (i) sell the Personal Data; (ii) retain, use, or disclose the Personal Data for any purpose other than for the specific purpose of performing the Services under this Agreement, including retaining, using, or disclosing the Personal Data for a commercial purpose other than providing the Services under this Agreement; or (iii) retain, use, or disclose the Personal Data outside of the direct business relationship between the Parties. Company certifies that it understands and will comply with the restrictions set forth in this Agreement. Customer shall comply with the terms of the CCPA Addendum D, attached hereto and hereby expressly incorporated by reference. To the extent applicable, for purposes of compliance with GDPR, each Party, in their respective roles as data controller and data processor, shall comply with all applicable data protections laws and regulations and the obligations set forth within a Data Processing Addendum to be executed by the Parties.
15) Confidentiality & Non-Disclosure.
a) Confidential Information. The Parties acknowledge that during the performance of this Agreement, Company will have access to certain Customer confidential information. “Confidential Information” means all nonpublic information or material of Customer which is disclosed to Company in oral and/or written form that (i) relates to past, present and future research, development, business activities, trade secrets, products, and services; or (ii) has been either identified, orally or in writing, as confidential by Customer or would be understood to be confidential by a reasonable person under the circumstances. Notwithstanding the foregoing, non-disclosure obligations shall not apply to information that (i) is publicly available at the time disclosed; (ii) is or becomes publicly available through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations; (iv) is already in the recipient’s possession free of any confidentiality obligations at the time of disclosure; or (v) is independently developed by the recipient without use of or reference to, the disclosing Party’s Confidential Information. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required to comply with the order of a court or other governmental body, provided that the Party compelled to make the disclosure shall first provide prior written notice to the other Party to enable such Party to obtain a protective order.
b) Non-Disclosure Obligation. Company shall not disclose any Confidential Information to any third party for any reason without Customer’s prior written consent, other than its employees or agents (i) who have a need to know about such information in order to provide the Services, and (ii) are subject to written confidentiality agreements with terms no less restrictive than the terms contained herein.
c) Required Disclosure. In the event Company is requested or required by legal process to disclose any of the Confidential Information, Company shall give Customer prompt notice so that Customer may seek a protective order or other appropriate relief prior to any such disclosure. In the event that such protective order is not obtained, Company shall disclose only that portion of the Confidential Information that its legal counsel advises that it is legally required to disclose, and shall work Customer to minimize the extent and effect.
d) Injunctive Relief. Both Parties understand and agree that monetary damages will not be a sufficient remedy for any breach of Company’s confidentiality obligations under this Section, and that Customer shall be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any such breach. Such remedies will not be deemed to be the exclusive remedies, but will be in addition to all other remedies available to Customer at law or in equity.
e) Return or Destruction of Confidential Information. Upon Customer’s written request at any time and subject to any contrary obligations under applicable law, Company shall, at Customer’s option, return or destroy all Customer Confidential Information and, if requested by Customer, certify in writing that it has complied with the foregoing.
16) Representations and Warranties.
a) Mutual. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of the place of its origin, and possesses all the necessary authority to enter into and perform its obligations under this Agreement.
b) By Company. Company represents and warrants that the Services will conform, in all material respects, to their applicable published documentation. The representation and warranty set forth in this Section will not apply to the extent a non-conformity results from any accident, abuse, misuse, or failure to maintain the Computer Systems or any unauthorized use or combination of the Services (or any component thereof) with any software, hardware or other item not provided or otherwise authorized by Company.
c) By Customer. Customer represents and warrants that it has all rights (including third party intellectual property rights) and has obtained any necessary authorizations or consents to Customer Data necessary to use the Services, share the Customer Data, and grant the rights contemplated in the Agreement. Customer further represents and warrants that Customer’s collection, use, disclosure, or storage (“Processing”) of the Customer Data is compliant with Applicable Laws (including applicable privacy and data protection laws) and not in violation of such laws or the Agreement.
17) Compliance with Applicable Laws.
Each Party shall comply with all Applicable Laws applicable to the performance of its obligations under this Agreement. Customer shall not allow any third party to, export from the United States or allow the re-export or re-transfer of any part of the Services: (a) to any country or territory subject to export control embargo or economic sanctions implemented by any agency of the U.S. Government; (b) to any person or entity on any of the U.S. Government’s Lists of Parties of Concern or, (c) otherwise in violation of any export or import laws, regulations or requirements of any United States or applicable foreign agency or authority.
a) Automatic Termination. This Agreement shall terminate upon written notice by either Party (i) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of either Party’s debts, (ii) upon either Party making an assignment for the benefit of creditors, or (iii) upon either Party’s dissolution or ceasing to do business.
b) Breach. Either Party may terminate this Agreement immediately if the other Party breaches any material provisions of this Agreement and, if curable, fails to cure such breach within thirty (30) days after receipt of written notice of such breach.
c) Survival. The following Sections survive termination of this Agreement: Individual Binding Arbitration, Promotional License, Customer Feedback License, Reservation of Rights, Confidentiality & Non-Disclosure, Disclaimer of Warranties, Disclaimer of Third Party Content; Indemnity, Limitation of Liability, and Governing Law.
19) Individual Binding Arbitration.
Any claim or controversy arising out of or relating to the Platform, Services, and/or this Agreement (including its formation, interpretation, performance and breach) shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, excluding any rules or procedures governing or permitting class actions. Any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Federal Arbitration Act shall govern the interpretation and enforcement of this Agreement.
20) Future Functionality.
Customer’s execution of this Agreement and use of the Platform and Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.
21) NO MEDICAL, FINANCIAL, TAX OR OTHER PROFESSIONAL ADVICE.
THE SERVICES ARE NOT INTENDED TO PROVIDE MEDICAL, FINANCIAL, TAX OR OTHER PROFESSIONAL ADVICE AND THE SERVICES MADE AVAILABLE TO CUSTOMER AND ITS AUTHORIZED USERS SHOULD NOT BE CONSTRUED AS OFFERING SUCH ADVICE. CUSTOMER AND AUTHORIZED USERS ARE SOLELY RESPONSIBLE FOR PERFORMING THEIR OWN DUE DILIGENCE BEFORE MAKING ANY MEDICAL, FINANCIAL, TAX, OR OTHER RELATED DECISIONS.
22) DISCLAIMER OF WARRANTIES.
UNLESS OTHERWISE STATED HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES MADE AVAILABLE TO CUSTOMER AND ITS AUTHORIZED USERS THROUGH THIS AGREEMENT, INCLUDING ANY “BETA” RELEASES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, SERVICES, OR CONTENT (I) WILL BE UNINTERRUPTED, TIMELY OR SECURE, (II) WILL BE FREE OF DEFECTS, INACCURACIES OR ERRORS, (III) WILL MEET CUSTOMER’S REQUIREMENTS, OR (IV) WILL OPERATE IN THE CONFIGURATION OR WITH OTHER HARDWARE OR SOFTWARE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR TRADE USAGE.
23) DISCLAIMER OF THIRD PARTY SERVICES.
COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR ANY THIRD PARTY SERVICES OR CONTENT MADE AVAILABLE TO CUSTOMER AND ITS AUTHORIZED USERS THROUGH THE SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY MAKES NO WARRANTIES REGARDING THIRD PARTY SERVICES OR CONTENT, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
24) LIMITATION OF LIABILITY.
COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST REVENUE, LOST PROFITS, LOST DATA, LOSS OF GOODWILL, REPLACEMENT GOODS OR SERVICES, LOSS OF TECHNOLOGY) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
25) BASIS OF THE BARGAIN.
Customer acknowledges that the exclusions, disclaimers, and limitations of liability set forth in the Agreement are essential components of the Agreement and form the basis for determining the price charged for the Services, and that Company would not enter into the Agreement without these limitations on its liability. These limitations will apply notwithstanding any failure of essential purpose of any limited remedy.
a) By Company. Except to the extent any claim results from the gross negligence or willful misconduct of Customer, Company agrees to indemnify, defend and hold harmless Customer, and its subsidiaries, officers, directors, shareholders, employees, and each of their respective successors and assigns from and against all damages, losses, liabilities, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with a third party claim alleging that the Platform or Services infringes a third party intellectual property right. If a claim of infringement or misappropriation under this Section occurs, or if Company reasonably determines that such a claim is likely to occur, Company shall, at its option: (i) obtain a right for Customer to continue using the Company Platform and/or Services for no additional fee; (ii) modify the Company Platform and/or Services to make it and/or them non-infringing; (iii) replace the Company Platform and/or Services with a non-infringing replacement with materially equivalent functionality, features, and performance; or (iv) terminate this Agreement and refund on a pro rata basis any unused fees paid by Customer. Company will not have any indemnification obligation for a claim of infringement or misappropriation to the extent such claim would not have occurred but for (y) any combination or use of the Platform with any other product or system or technologies not supplied or approved by Company, and/or (z) any refusal by Customer to accept or use a materially equivalent non-infringing replacement. The remedies provided herein shall be the sole and exclusive legal remedies of Customer for any claim of infringement of the Platform and/or Services.
b) By Customer. Except to the extent any claim results from the gross negligence or willful misconduct of Company, Customer agrees to indemnify, defend and hold harmless Company, and its subsidiaries, officers, directors, shareholders, employees and each of their respective successors and assigns from and against all damages, losses, liabilities, expenses, fees or costs (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection with any third party claim arising out of or relating to (i) any claim that the Customer Data or Trademarks violates any third party intellectual property, privacy or other right, (ii) Customer’s violation of Applicable Laws, including data privacy laws, (iii) the services provided by Customer to any End User, (iv) Customer’s acts or omissions in connection with any Claims, and/or (v) breach of Customer’s obligations pursuant to this Agreement, including a breach of Customer’s representations and warranties.
c) Notice. A Party’s indemnification obligations under this Agreement are conditioned on the indemnified Party providing prompt written notice to the indemnifying Party of any claim, action, or demand for which indemnification is claimed, provided, however, that any delay in such notice will relieve the indemnifying Party of its indemnification obligations only to the extent such delay materially prejudices the indemnifying Party’s defense. The indemnifying Party shall be entitled to assume control of the defense and any settlement negotiations. In the event the indemnifying Party assumes control of the defense and negotiations, the indemnified Party shall be entitled, at its sole cost and expense, to participate in the defense and negotiations. In the event the indemnifying Party does not assume control of the defense and negotiations, then the indemnified Party may take control of the defense and negotiations, and its reasonable costs and expenses shall be subject to indemnification. The indemnified Party will reasonably cooperate, at the indemnifying Party’s expense, in the defense of such claim as the indemnifying Party may request. The indemnifying Party will not enter into or agree to any settlement that requires any action or admits any liability by the indemnified Party or imposes any restrictions on the indemnified Party, in each case without the prior written consent of the indemnified Party, such consent shall not unreasonably be withheld.
a) Force Majeure. Any delay in the performance of any duties or obligations of a Party will not be considered a breach of this Agreement if the delay is caused by an event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, telecommunications or power outage, fire, flood, civil disobedience, terrorism, labor disruptions, strikes, lockouts, freight, government ordered closures, embargoes, terrorism, natural disaster, denial of service attacks, war or acts of God.
b) Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created herein between the Parties. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.
c) Severability. The validity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
d) Modifications. No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
e) Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware without regard to or application of Delaware’s conflict of law principles. The Parties consent to the jurisdiction of the State of Delaware, County of New Castle, with regard to any controversy or claim arising out of or relating to this Agreement, or the breach thereof.
f) Assignment. Neither Party shall assign any of the rights or obligations under this Agreement without the prior written consent of the other Party, which consent shall not unreasonably be withheld. However, consent is not required for an assignment of this Agreement in connection with a change of control, merger, stock transfer, sale or other disposition of substantially all the assets of the assigning Party’s business.
g) Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
h) No Waiver. No failure or delay by a Party exercising any right, power or privilege under this Agreement will operate as a waiver thereof.
i) Interpretation. Headings are for reference purposes only and do not limit the scope or extent of such section.
j) Notices. All notices required or permitted to be given under this Agreement will be in writing and delivered to: Cryptail Corp., Attention: Legal, 3714 Villa Ter, San Diego, CA 92104 with a copy to [email protected] and to Customer at the address and email provided herein.
k) Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original and all of which shall be deemed a single agreement.
l) Execution. Either Party may execute this Agreement with either a manual or digital signature. “Digital signature” means an electronic identifier that is intended by the Party using it to have the same force and effect as the use of a manual signature. A signed copy of this Agreement delivered via facsimile or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original executed copy of this Agreement.
m) Entire Agreement. This Agreement comprises the entire agreement between the Parties and supersedes all prior or contemporaneous agreements, written or oral, between the Parties regarding the subject matter contained herein.
myBalto Claims Technology Subscription and Fundraising Services.
The myBalto Claims Technology Subscription and Fundraising Services applies if Customer elects the myBalto Claims Technology Subscription and/or Fundraising Services within the platform.
Company will integrate the myBalto Claims Technology within Customer’s veterinary management system to streamline bill submissions, raise Funds to be applied to End User Claims, and enable Customer to manage the Claim submission and Funds allocation and disbursement process.
2. End User Subscription to myBalto Mobile Application (“myBalto App”).
3. myBalto Charitable Claim Technology
a. Computer Systems and Database Access. i. In accordance with the Agreement, Customer hereby authorizes Company and its authorized agents to access the database connected to Customer’s veterinary practice information management system (“Database”) and other applicable computer systems (collectively, “Computer Systems”) necessary to perform the Services including, as applicable, to install Company’s database read and write tools. Customer is solely responsible for Customer’s Database and Computer Systems and all technical requirements, including any third-party software or hardware or equipment, necessary to receive the Services. Company will use commercially reasonable efforts to provide the initial set-up and the ongoing assistance required to extract Customer Data from and write Customer Data to its Computer Systems, convert such Customer Data, and upload Customer Data to the Platform to enable Company to provide the Services. ii. Customer shall obtain all consents necessary from End Users to permit disclosure of the information set forth within any animal medical records made available to Company for (i) purposes of processing Claims, and (ii) to enable Company to generate aggregated, statistical and/or other benchmark data for purposes of analytics, research and marketing (the “Services Data”). For the avoidance of doubt, Service Data shall not contain, include, or otherwise be derived from any personally identifiable information. Company shall not attempt to correlate any deidentified data to an individual or household.
b. myBalto Charitable Claim Technology Subscription Fees. Customer shall pay the fees for the myBalto Charitable Claim Technology Service pursuant to the terms of the applicable Order Form. Company reserves the right to change the myBalto Charitable Claim Technology Service fees at any time, subject to a thirty (30) day notice period. If Customer continues to use the myBalto Charitable Claim Technology Service for such thirty (30) day period, then Customer shall be deemed to have accepted the change in fees specified in the notice. In addition to the fees, Customer is also responsible for any penalties and fines imposed on Customer or on Company by any bank, money services business, payment network, financial institution, or other financial intermediary resulting from Customer’s use of the myBalto Charitable Claim Technology Service in a manner not permitted by this Agreement or by such financial intermediary’s rules and regulations.
d. Charitable Fee Percentage Terms. For the purpose of funding Customer’s Dwolla Account, technology, money management, and additional operational costs associated with Charity’s activities, a Charitable Fee Percentage shall be applied to all donations made through the Platform. i. The Charity at all times reserves the right to modify the Charitable Fee Percentage and/or the purposes for which the Funds are used, provided that such modifications are communicated to Customer through the Platform in advance and are in compliance with all Applicable Laws. ii. By donating through the Platform, End Users will be required to acknowledge that they have read, understood, and agreed to these terms outlined in the Charitable Fee Percentage terms. iii. The Charitable Fee Percentage shall be determined at the discretion of the Charity and may fluctuate based on their costs. The specific percentage applicable at any given time shall be communicated and visible within the Platform and will also be available on the charity’s website. Company only facilitates the deduction of these fees through the Platform as a pass-through deduction on behalf of Charity. iv. The Charitable Fee Percentage shall be calculated based on the total donation amount received through the Platform, excluding any applicable taxes, transaction fees, or other charges imposed by third-party payment providers or financial institutions. v. End Users who elect to make donations will be required to explicitly acknowledge and agree that the deduction of the Charitable Fee Percentage is a condition of making a donation. By creating a Dwolla Account and facilitating donations, Customer expressly consents to the deduction of the applicable charitable fee percentage from any applicable donations made through the Platform. vi. Customer may request further information or clarification regarding the Charitable Fee Percentage by contacting the Charity directly. vii. The Charity at all times reserves the right to modify the Charitable Fee Percentage and/or the purposes for which the Funds are used, provided that such modifications are communicated to Customer through the Platform in advance and are in compliance with all Applicable Laws. viii. By donating through the Platform, End Users will be required to acknowledge that they have read, understood, and agreed to these terms outlined in the Charitable Fee Percentage terms.
e. Security Interest. As security for performance of your obligations under this Agreement related to the myBalto Charitable Claim Technology Service, you grant us a first priority lien and security interest on all Funds processed and deposited into all accounts to which Customer receives payouts under the terms and conditions Customer has in place with the payment provider, and any other bank accounts associated with Customer’s myBalto Charitable Claim Technology Account, and in any Funds processed using these services. These security interests and liens will secure payment and performance of all Funds-related obligations under this Agreement and any other agreements now existing or later entered into between the Parties hereto, including, without limitation, Customer’s obligation to pay any amounts due and owing to Company. Customer will execute, deliver and pay the fees for any documents Company requests to create, perfect, maintain, and enforce this security interest.
f. Reserves. Company may set the terms and conditions of a reserve account and a reserve amount to cover chargebacks, refunds, or other payment obligations Customer incurs through the use of the myBalto Charitable Claim Technology Service. Company will set the terms of the reserve account in its discretion. Company may require Customer to fund the reserve account by means of: (i) any Funds payouts made or due to Customer for transactions submitted to the myBalto Charitable Claim Technology Service; (ii) amounts available in Customer’s bank account connected to the myBalto Charitable Claim Technology Service; (iii) other sources of monies associated with Customer’s myBalto Charitable Claim Technology account; or (iv) requesting that Customer provide monies to Company for deposit to a reserve account.
g. Restrictions on Use of Funds. Any Funds provided to offset medical services provided to End User’s pets shall be used solely for the Claim submitted and solely for the purposes of providing medically necessary services to such End User’s pet. The Charity does not permit use of any Funds to perform any cosmetic procedures. “Cosmetic Procedures” include, but are not limited to, teeth whitening, wrinkle removal, tail docking, ear trimming, declawing in felines, debarking in canines, hair dying, or other services designed to impact a pet’s appearance or behavior. Charity has the sole discretion to determine applicable eligibility criteria for all Claims.
h. Termination by Charity. Customer acknowledges and agrees that their use of the Platform is subject to compliance with Charity’s rules, as well as all Applicable Laws. i. Company reserves the right to immediately terminate Customer’s access to the Platform and/or this Agreement upon written notice (email sufficient) in the event of a violation of the Charity’s rules or any other applicable terms and conditions, including but not limited to (a) use of Funds in violation of Section 8 of this Addendum, and (b) committing or attempting to defraud the Charity by manufacturing Claims, services or procedures or utilizing Funds for Cosmetic Procedures. ii. In the event Company or the Charity determines, in its sole and absolute discretion, that Customer has violated any applicable rules or terms and conditions, Customer will forfeit access to allocated Funds. Any allocated Funds shall be reallocated to the Charity’s main account, without further obligation or liability to Customer. iii. Customer understands that any termination of this Agreement or access to the Platform may also result in the loss of any Customer Data associated with Customer’s account. iv. Termination of access to the Platform shall not relieve Customer from any obligations or liabilities it may have incurred prior to the effective date of termination, including any outstanding payments or donation commitments to the Charity. v. Company reserves the right to modify or update the terms of this termination clause, in its sole discretion or by advisement of the Charity. Any such modifications or updates shall be communicated to the Customer in advance.
2. Fundraising - Sweepstakes.
For annual Fundraising Subscription Plans, Company will provide, on an annual basis, a sweepstakes promotion at Company’s primary location. Customer can request scheduling of the annual sweepstakes with a minimum of 90 days prior notice through Customer’s dashboard. For monthly or quarterly plans, Customers are not eligible to request a sweepstakes until at least six (6) months from the initial effective date of the Subscription Services. For full scheduling terms and guidelines, please see: https://docs.mybalto.com/sweepstakes.
3. Branded Site.
End Users will access and participate in Customer’s efforts to solicit charitable donations through a site marketed under Customer’s brand, which is powered by and connected to the Platform (the “Branded Site”).
Subject to Customer’s compliance with the terms and conditions of this Agreement, Company grants Customer a nonexclusive, nontransferable (except as permitted in Section 27(f) of the Agreement) license, during the Term, to (a) use the Branded Site solely for internal business purposes, and (b) use the Company name, logo and “Powered by Company” message for the sole purpose of co-marketing the Branded Site (“Company Trademarks”). Customer acknowledge Company’s exclusive ownership of the Company Trademarks and agree that all goodwill arising as a result of Customer’s use of the Company Trademarks will inure solely to the benefit of Company. Customer agree not to take any action inconsistent with such ownership. Customer shall not adopt, use, or attempt to register any Trademarks, trade names, or service marks that are confusingly similar to the Company Trademarks or in such a way as to create combination marks with the Company Trademarks. At Company’s request, Customer will modify or discontinue any use of the Company Trademarks if Company determines, in its sole discretion, that such use does not comply with Company’s then-current trademark usage policies and guidelines.
5. Reservation of Rights.
The Branded Site, excluding any Customer Data and Customer Trademarks contained therein, is solely owned by Company.
Upon termination of the Agreement, Customer’s access to the Branded Site will immediately terminate. Customer shall have no further right to use the Branded Site in any manner.
myBalto Mobile Application Integration
This myBalto Mobile Application Integration applies to the use of the myBalto App by Customer, its Authorized Users and End Users. For purposes of this section the term “you” shall refer to Customer and its Authorized Users.
1. IOS App.
Access and use of the myBalto App is governed by the End User License Agreement provided with the myBalto App. The following terms apply if you install, access, or use the Services on any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).
a. Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple. Company, not Apple, is solely responsible for this iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the Apple iOS App Store will govern if they are more restrictive. You acknowledge that you have had the opportunity to review the Usage Rules.
b. Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch, iPad, or any other Apple device that you own or control as permitted by the Usage Rules set forth in the Apple iOS App Store Terms of Service.
c. Maintenance and Support. You and Company acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
d. Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Company. However, Company has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
e. Product Claims. You and Company acknowledge that as between Apple and Company, Company, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
f. Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s intellectual property rights, Company, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
g. Developer Name and Address. Any questions, complaints, or claims with respect to the iOS App should be directed to [email protected].
h. Third-Party Terms of Agreement. You will comply with any applicable third-party terms when using the Services.
i. Third-Party Beneficiary. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.
2. Android App.
The following terms apply if you install, access, or use the Services on any device that contains the Android mobile operating system (the “Android App”) developed by Google, Inc. (“Google”):
a. You acknowledge that these Terms are between you and us only, and not with Google.
b. Your use of our Android App must comply with Google’s then-current Android Market Terms of Service.
c. Google is only a provider of the Android Market where you obtained the Android App. We, and not Google, are solely responsible for our Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to our Android App or these Terms.
d. Google is a third-party beneficiary to the Terms as they relate to our Android App.
California Privacy Rights Act
In accordance with Applicable Laws, Service Provider hereby certifies that it will: i) not sell or share (as such terms are defined under the California Consumer Privacy Act of 2018 or the California Privacy Rights Act of 2020) any Customer Personal Data, ii) not retain, use or disclose any Customer Personal Data for any purpose other than for the specific purpose of performing the Services as specified in the Agreement, including retaining, using or disclosing the Personal Data for a commercial purpose other than provision of the Services, iii) not retain, use or disclose the Customer Personal Data outside of the direct business relationship reflected in this Agreement, iv) delete the Personal Data relating to a particular individual residing in the State of California (hereinafter, each a “Consumer”) from all systems containing such information upon Customer’s written request, v) immediately direct any Consumer who makes a request regarding Customer Personal Data to contact Customer to make a consumer rights request, vi) comply with all Applicable Laws regarding the collection, use, and retention of Personal Data vii) disclose Personal Data relating to a particular Consumer upon Customer’s written request; viii) correct the inaccurate Customer Personal Data relating to a particular Consumer upon Customer’s written request. Customer shall inform Service Provider of any consumer rights request received by Customer that Customer must comply with and provide the information necessary for Service Provider to comply with the request. Any Customer request pursuant to this Addendum shall be sent to [email protected] with the heading “CCPA Request.”