Partner Terms of Use

A Place for Mom, Inc.’s (“APFM”) Partner Web Services Terms of Use

Effective July 2013

PLEASE READ THESE PARTNER WEB SERVICES TERMS OF USE (“PWS TERMS OF USE”) CAREFULLY. YOUR USE OF THE PARTNER WEB SERVICES IS CONDITIONED UPON YOUR ACCEPTANCE OF THESE PWS TERMS OF USE WITHOUT MODIFICATION. BY ACCESSING OR USING THE PARTNER WEB SERVICES, YOU AGREE TO BE BOUND BY THE PWS TERMS OF USE AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THE PWS TERMS OF USE, DO NOT USE THE PARTNER WEB SERVICES.

1. Definitions. “Lead Data” means all content related to an individual who has expressed an interest in finding senior housing or care.  “Partner Web Services” means APFM’s XML/JSON web service that enables the transfer of Lead Data to and from Customer’s system and applications. “Partner Web Services API” means the instructions  and other written material that APFM provides to customers describing the application programming interface and related documentation that APFM provides customers for use with the Partner Web Services, whether in printed or electronic form.

2. License Grant. Subject to these PWS Terms of Use, APFM grants Customer a non-transferable, non-exclusive, revocable, non-sublicensable license, during the Term to: (i) copy and use the Partner Web Services API solely for the purpose of transferring Lead Data into Customer’s system and applications; and (ii) access the Partner Web Services solely for the purpose of transferring Lead Data to and from Customer’s computer system and applications.

3. License Restrictions. Customer shall not, nor shall it permit any third party to, whether in whole or in part: (i) disclose, sublicense, distribute, copy, or otherwise transfer the Partner Web Services API or the Partner Web Services; (ii) modify, translate, reproduce, publicly display, publicly perform, distribute, or create derivative works from the Partner Web Services API or the Partner Web Services; (iii) provide third parties with access to the Partner Web Services API or Partner Web Services, unless otherwise agreed to by APFM in writing; or (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive or access any of the Partner Web Services source code or human readable embodiment of the same. Customer will not, in any manner or form, upload or attempt to upload or otherwise transfer any virus or other limiting or malicious routine, instruction, or design that would cause harm to APFM’s computer or telecommunication systems or data. Customer will not use or access the Partner Web Services in any manner that will harm, disable, or slow APFM’s computer and systems and will comply with any security and performance restrictions or limitations, as may be provided by APFM from time to time.  Customer will not circumvent, attempt to circumvent, disable, or attempt to disable, or discover or attempt to discover any security measures (including without limitation encryption algorithms, keys, passwords, and the like) used by or for APFM to protect its computer Or telecommunications systems.  The term “systems” means, individually and collectively, devices, equipment, hardware, communication lines, firmware, software, and all other forms of computer programming.  Customer is restricted from using the Partner Web Services in connection with a third-party customer relationship management application, tool, or similar software (collectively “CRM Software”), including transferring any Lead Data via the Partner Web Services into such third party CRM Software, unless otherwise agreed to by APFM in writing.  APFM may change, suspend or discontinue any use of the Partner Web Services API and access to the Partner Web Services at its discretion at any time without notice.

4. Lead Data. Lead Data provided by APFM shall contain the referral date; advisor contact information; lead contact information; and prospective resident’s information, including but not limited to, basic care needs, budget range and geographic preferences.  A more complete list of Fields is contained in the Partner Web Services API.  Customer shall provide, at a minimum, the following information through the Partner Web Services:  lead contact information updates; prospective resident information updates; notification of completed tours and move-ins; and notification if the lead has been closed by the community.

5. Support Services and Fees. APFM shall provide to Customer initial support services of up to six hours at no charge; any additional support services shall be at an hourly rate of $175, which may be waived by APFM.  Customer shall pay invoices for any additional support services within 30 days of invoice date.  APFM may, in at its discretion, provide updates to the Partner Web Services API (to include only bug fixes, error corrections, and updates, to the Partner Web Services, that are made generally and commercially available to APFM’s customers) when they become generally and commercially available to APFM’s customers in the ordinary course of APFM’s business (“Updates”).  In the event that APFM makes changes to its own outgoing platform or application, no additional fees will be charged for such Updates.

6. Customer Contacts. Customer will identify one or more representatives (“Customer Contacts”) who will request support and report any performance problems relating to the Partner Web Services. Customer Contacts will be familiar with the Partner Web Services API, will consult the Partner Web Services API before contacting APFM for support services, and will assist APFM to address the problem as reasonably requested by APFM.  If Customer engages third party representatives as its Customer Contacts, Customer shall be responsible for all costs and expenses related to engaging third party representatives.

7. Ownership and Title. APFM possesses the sole and exclusive right, title and interest in and to the Partner Web Services API and the Partner Web Services, all derivatives therefrom, and all intellectual property rights thereto and therein.

8. Confidentiality Obligations. “APFM Confidential Information” shall include the Partner Web Services API and Partner Web Services, and also include all information relating to the development, design, operation, marketing or sales of the Partner Web Services API, Partner Web Services and Lead Data, whether marked as confidential or not, in any form, that was indicated by APFM to be confidential, or would be reasonably understood to be confidential under the circumstances. Customer shall not to disclose any APFM Confidential Information to any third party.  The obligations set forth in this Section shall survive expiration or any termination for a period of 10 years.  Each party’s confidentiality obligations related to the Lead Data is set forth in the parties’ Information Service Agreement. To the extent any terms of the Information Service Agreement are inconsistent with these PWS Terms of Use with respect to the Lead Data, the terms of the Information Service Agreement will control.

9. Limitation of Liability. In no event shall APFM be liable under contract, tort, indemnity, product liability, strict liability, or otherwise, for any lost profits, loss opportunities, or indirect, special, consequential, incidental, punitive or exemplary damages, regardless of legal theory, even if APFM has been apprised of the likelihood of the damages.  Without limiting the foregoing, in no event shall APFM have any liability or responsibilities to Customer for any error, interruption, loss or corruption of Lead Data or any damages to any of Customer’s systems as a result thereof, whether caused by APFM or any third party.  In no event shall APFM’s aggregate liability relating to or arising from the Partner Web Services for any and all causes of action exceed the amount paid by Customer to APFM in the 6-month period immediately preceding the event giving rise to such claim. Some jurisdictions do not allow the exclusion or limitation of consequential or indirect damages, so the above limitation may not apply to Customer in such event.

10. Indemnification. Customer will defend, indemnify and hold APFM, its affiliates, successors, officers, directors, employees, and agents harmless from and against any and all losses, liabilities, costs, expenses, damages, claims, demands, suits or judgments (including, without limitation, reasonable attorneys’ fees and costs of any legal action) based upon the acts or omissions of Customer, its affiliates, successors, officers, directors, employees, and agents in connection with or performance under the Partner Web Services.

11. Warranty Disclaimer. Except as otherwise provided herein, APFM makes no warranty with respect to the Partner Web Services API, Partner Web Services, or Lead Data, or any technology or services provided hereunder.  APFM specifically disclaims any warranty, whether express, implied, or statutory, with respect thereto including, without limitation, any warranty of merchantability, fitness for a particular purpose, course of dealing, title or non-infringement.  APFM will have no liability of any kind for Customer’s use any third-party software and/or any interoperability between third-party software and the Partner Web Services API or the Partner Web Services.

12. Term; Termination and Post-Termination Obligations. The term will commence upon the Effective Date and will continue for an initial term of one year, and shall automatically renew for successive additional one year terms, unless the Partner Web Services are earlier terminated or expire.  If a party materially breaches these PWS Terms of Use, the non-breaching party may provide the breaching party with written notice of such breach. If the breaching party fails to cure such breach within five days after the date of notice by the non-breaching Party, the Partner Web Services will terminate at the end of such five day notice period; provided, however, if the breach is of a nature that it cannot be remedied within a five day period, the non-breaching party may terminate the Partner Web Services immediately upon written notice.   The Partner Web Services may be terminated by either party for any reason or no reason at any time upon 30 days prior written notice.  The Partner Web Services will automatically expire, without notice, if the Information Service Agreement expires or is terminated.  Upon expiration or termination of the Partner Web Services, Customer agrees to immediately cease exercise of any license rights granted hereunder, and Customer shall destroy all APFM Confidential Information, and shall provide, upon request, a certification of such destruction.

13. General Provisions. These PWS Terms of Use constitutes the entire agreement between the parties with respect to the subject matter hereof. These PWS Terms of Use may only be amended by a written instrument signed by both parties.  A party’s waiver of any breach of these PWS Terms of Use by the other party will not constitute a waiver of any rights or any subsequent breach of the same or different provision.  These PWS Terms of Use are governed by the laws of the State of Washington, and jurisdiction and venue for any disputes or claims are exclusively in King County, Washington. In the event of litigation between the parties arising out of or related to the Partner Web Services, the prevailing party will be entitled to recover its attorneys’ fees and costs incurred.  During the Partner Web Services and for three (3) years thereafter, APFM may conduct an audit of Customer’s records and systems to verify compliance with these PWS Terms of Use. These PWS Terms of Use may not be assigned without the prior written consent of the other Party. Notwithstanding this prohibition, however, APFM may, without the Customer’s prior written consent, assign or transfer its interest in the Partner Web Services to an entity who acquires, by sale, merger or otherwise, all or substantially all of APFM’s assets, stock or business.