By using our services, you agree to the terms laid out in this document, which detail your rights, responsibilities, and restrictions when accessing and using the Sunwave platform. Please read these Terms carefully. Your use of Sunwave Health’s services constitutes your acceptance of these Terms. If you do not agree, please refrain from using our services.
Terms and Conditions:
The applicable Exhibits, Attachments, and Order Forms annexed hereto form an integral part of the Agreement and are deemed incorporated by reference herein.
1. Software Subscription.
1.1. Customer hereby retains the Company for the Term of this Agreement to provide the Purchased Services as set forth in Exhibit A (collectively the “Sunwave Service Order Form”). Customer acknowledges that the details specified in the attached Sunwave Service Order Form have been mutually agreed upon. For purposes of this Agreement, the “Software” shall mean all software (including, but not limited to, electronic medical records (EMR), Customer Relationship Management (CRM), and Revenue Cycle Management (RCM) software-as-a-service (SaaS)) provided by Sunwave under this Agreement and such other operator and user manuals, specifications, and other materials provided by the Company for use, and updated from time to time, in conjunction with the Software as set forth in the Sunwave Service Order Form.
1.2. As an integral part of this Agreement, the Company grants Customer, contingent upon receipt of all applicable fees described in the Sunwave Service Order Form, a non-exclusive, non-transferable right to access and use the Purchased Services, except with regard to assignments expressly permitted hereunder. Customer may use the Services on an enterprise basis as described in the Sunwave Service Order Form.
1.3. Subject to the rights granted to Customer under this Agreement, including but not limited to Section 1.2 above, title in and to the Services, and any copy or derivative thereof, remains in the Company. Customer acknowledges and agrees that the Services, and any modification thereto and customization thereof (i) are proprietary products of the Company protected by law; (ii) are not a “work for hire” under copyright or other laws; and (iii) shall remain the Company’s property.
2. Definitions
“Affiliate” means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the subject entity. “Control”, including the terms “controlled by” and “under common control with”, for purposes of this definition, means direct or indirect ownership, power to direct, cause the direction of the management and policies of, or control or ownership of more than 50% of the voting interests of the subject entity, by contract or otherwise. For clarification, any professional corporation or professional limited liability corporation that is managed by Customer or Affiliate of Customer also is considered to be an Affiliate of Customer.
“Agreement” means this Sunwave Subscription Agreement.
“Beta Services” means Sunwave services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means information obtained by Sunwave from publicly available sources or third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services.
“Non-Sunwave Application” means a Web-based, mobile, offline or other software applications’ functionality that is provided by Customer or a third party and interoperates with a Service, including, for example, an application that is developed by or for Customer, is listed on a Marketplace, or is identified as Sunwave development or by a similar designation.
“Non-Sunwave Provider” is a non-Sunwave company including Customer that provides software or services that interoperate with Sunwave software and services.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and Sunwave or any of Company Affiliates, including any addenda and supplements thereto including pricing offers and proposals. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Purchased Services” means Services that Customer or Customer Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means Sunwave’s platforms and any and all products and services that are ordered by Customer under an Order Form. “Services” excludes any Content and Non-Sunwave Applications that are not provided by Sunwave to Customer as part of the Services or Software.
“User” means an individual who is authorized by Customer to use the Services, for whom Customer have purchased a subscription (or in the case of any Services provided by Company without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Company at Customer request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Customer employees, consultants, contractors and agents, and third parties who Customer expressly permit to use the Services and have been supplied with login credentials by Sunwave for the Services. Each user accessing the Sunwave platform must register and maintain a unique, individually identifiable user account (“Named User Account”). Sharing of user accounts between multiple individuals is strictly prohibited. Each Named User Account is assigned to a single individual and cannot be shared with others. For enhanced security, all users must enable and use Two-Factor Authentication (“2FA”) when accessing the Sunwave platform. 2FA is a mandatory security measure that requires users to verify their identity using both a password and a secondary authentication method.
“Customer” or “Customer” means the Customer or other legal entity for which Customer are accepting this Agreement, and Affiliates of the Customer or entity which have signed Order Forms.
“Customer Data” means data, information, and materials provided or submitted by or for Customer to the Services and Software, excluding Content and Non-Sunwave Applications.
3. Set-Up of Services
3.1. Support Services. Company shall be responsible under this Agreement to provide maintenance and support services, updates or releases, and general support for the Software. All support related issues will be communicated via email using the company support address below and tracked via support ticket/case. (support@sunwavehealth.com)
4. Fees.
4.1. Fee. As consideration for the subscription of the Software and support services, if any, as described in the Sunwave Service Order Form, Customer shall pay Company all fees as set forth in the Order Form of the Sunwave Service Order Form (“Pricing Offer”) and all Appendices, incorporated by reference into this Agreement in its entirety. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, and (ii) payment obligations are non-cancelable.
4.2. Invoices and Payment. Company will invoice Customer before the first (1st) of the month in accordance with the relevant Service Order Form. As stated in the Service Order Form and to the extent any invoiced charges have not been identified by Customer as being in dispute, invoiced charges are due net 3 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information. If Customer provides credit card information to Company, Customer authorizes Company to charge such credit card for all Purchased Services listed in the Service Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 8.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, and are subject to an additional 4% of the charged amount, monthly as stated in the applicable Service Order Form.
4.3. Other Fees and Charges. A “Late Fee” will be assessed if any invoiced amount is not received by Company by the due date, then without limiting Company rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
4.4. Suspension of Service and Acceleration. Subject to Section 4.5 regarding Payment Disputes, if any amount owing by Customer under this or any other agreement for Company services is 30 or more days overdue, Company may, without limiting Company’s other rights and remedies, accelerate Customer unpaid fee obligations under such agreements so any and all obligations become immediately due and payable, and suspend Company services to Customer until such amounts are paid in full. Company will give Customer at least 10 days’ prior notice that Customer account is overdue, in accordance with Section 14.3 (Manner of Giving Notice) for billing notices, before suspending services to Customer.
4.5. Payment Disputes. Company will not exercise Company rights under Section 4.3 (Other Fees and Charges) or 4.4 (Suspension of Service and Acceleration) above if Customer are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If Customer, in good faith, disputes the accuracy of any invoiced amount, Customer must timely pay such amount as it in good faith believes to be correct and, within 5 days of its receipt of any invoice(s) that includes an amount in dispute, provide written notice to Company stating the reasons why the remaining disputed amount is incorrect, along with supporting documentation (as available). Within 5 days of receipt of Customer’s notice of dispute, Company shall use commercially reasonable efforts to resolve all disputes in good faith, including through a meeting of representatives from each Party who possess decision-making authority, and promptly propose a resolution. No late charge for payment shall be owing or claim of breach for non-payment shall accrue with respect to any portion of an invoice disputed by Customer, in good faith, while the Parties seek to resolve the dispute. If, notwithstanding such efforts, the Parties are unable to resolve a dispute within 30 days, Company may notify Customer of its intent to submit the dispute to a certified mediator in the State of Florida before filing any course of action in a court of competent jurisdiction, and all relevant and reasonable expenses (including legal cost, travel expenses, cost of adducing evidence, arbitration fees, etc.) shall be borne by the losing Party, as determined by the court.
4.6. Taxes. Company fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer are responsible for paying all Taxes associated with Customer purchases hereunder. If we have the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 4.6., Company will invoice Customer and will pay that amount unless Customer provide Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company are solely responsible for taxes assessable against Company based on Company income, property and employees.
5. Use of Services and Content
5.1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services and access to Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the pricing agreed hereunder, for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions unless they are month to month.
5.2. Customer Responsibilities. Customer will (a) be responsible for User’s compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Company promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Order Forms and applicable laws and government regulations, (e) be responsible for developing contingency plans for potential events that could render the Services and Content unavailable, and (f) comply with the terms of service of any Non-Sunwave Applications or Non-Sunwave Providers with which the Customer uses Services and/or Content. (g) Customer is required to use either Single Sign-on(SSO) or 2-Factor Authentication(2FA) to be compliant with Sunwave Security Protocols.
5.3. Usage Restrictions. Customer will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than Customer or Users, unless expressly stated otherwise in an Order Form, (b) except as expressly permitted by this Agreement (such as transition support for divested entities), sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content or include any Service or Content in a service bureau or outsourcing offering, (c) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (d) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Company Services to access or use any of Company Intellectual property except as permitted under this Agreement, an Order Form, (e) copy Content except as permitted herein or in an Order Form, (f) access any Service or Content in order to build a competitive product or service, or (g) reverse engineer any Services (to the extent such restriction is permitted by law). Customer is solely liable for any and all damages caused by any unauthorized use by a former Customer employee, agent, contractor or sub-contractor, but only to the extent that Customer negligence in decommissioning User access credentials caused such use. (h) Customer will not store any information pertaining to credit card information or bank account information pertaining to patients in the Sunwave platform.
5.4. Removal of Content and Non-Sunwave Applications. Without prejudice to any other remedies available under this Agreement or at law, if Company is required by contract or law by a licensor to remove Content, we may so notify Customer and, in such event, cooperate with Customer to take steps to promptly modify, disable, or remove such Content or any materially-related Non-Sunwave Application to resolve the potential violation. If Company receive reliable information from a verifiable source that Content provided to Customer may violate applicable law or third-party rights, Company may so notify Customer and in such event Customer will promptly remove such Content from Customer systems. If Company receives reliable information from a verifiable source that a Non-Sunwave Application hosted on a Service by Customer may violate Company External-Facing Services or applicable law or third-party rights, Company may so notify Customer and, in such event, Customer will promptly disable such Non-Sunwave Application or modify the Non-Sunwave Application to resolve the potential violation. If Customer does not take required action in accordance with the above, Company may disable the applicable Content, Service and /or Non-Sunwave Applications until the potential violation is resolved; provided that any modification or removal of any component of the Service or Content provided by Company under this Agreement may give rise to Customer claim of material breach.
6. Non-Sunwave Providers
6.1. Company or third parties may make available third-party products or services, including, for example, Non-Sunwave applications and implementations and other consulting services. Customer and any Non-Sunwave Provider are solely responsible for any direct acquisition by Customer of Non-Sunwave applications and implementations and other consulting services, and any direct exchange of data between Customer and any Non-Sunwave provider, product or service, through means other than those we make available to Customer.
6.2. Non-Sunwave Applications and Customer Data. If Customer chooses to use a Non-Sunwave Application(s) with a Service, Customer grants Company permission to allow the Non-Sunwave Application and its provider to access Customer Data as required for the interoperation of that Non-Sunwave Application(s) with the Service. Company shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from access to the Service by such Non-Sunwave Application or its provider, and Company shall not be liable for any disclosure, modification, or deletion of Customer Data unrelated to the Company’s Service.
6.3. Integration with Non-Sunwave Applications. With the exception of any optional features or products, the Services may contain features designed to interoperate with Non-Sunwave Applications. To use such features, Customer shall be liable for the selection of those Non-Sunwave Applications, and the contractual purchase or subscriptions for them. To fully integrate such features, the Company may be required to obtain access to such Non-Sunwave Applications from their providers, and may be required to grant Company access to Customer account(s) on such Non-Sunwave Applications. Company cannot guarantee the continued availability of such Service features; and any loss, cost or damage to the Customer as a result of the use of any Non-Sunwave Applications shall be born solely by the Customer. The Company will not indemnify the continuous operation of Sunwave Applications if Non-Sunwave Applications are used which are not recommended or deemed incompatible with Sunwave Applications.
7. Warranties and Covenants.
7.1. Warranty. Company represents and warrants to Customer that the intellectual property being licensed hereunder constitutes intellectual property owned by Company with respect to which and to the extent to which, and subject to the conditions under which, Company has the right to grant licenses to Customer that are necessary for performance of this Agreement, and Company’s Intellectual Property (IP) does not violate, misappropriate, or infringe any third-party intellectual property rights. Company further grants Customer a warranty that: a) it will perform the Services in a workmanlike manner using duly qualified and experienced personnel; b) it has full authority to execute and perform this Agreement; c) its execution and performance of this Agreement will not materially violate any material law or materially breach any agreement known by and governing Company.
Except as expressly set forth in this Agreement, the Company makes no other warranty of any kind to Customer, express, implied or statutory, (with respect to the services, Software, or results obtained from its service or Software,) including, but not limited to, implied warranties of merchantability, fitness for a particular purpose or use, and title. CUSTOMER AGREES THAT THE SOFTWARE IS A DOCUMENTATION TOOL ONLY, AND THAT THE SOFTWARE IS NOT INTENDED TO PROVIDE DIAGNOSES, PRACTICE GUIDELINES, ADVICE, OR PROTOCOLS FOR DELIVERING MEDICAL CARE. CUSTOMER FURTHER AGREES THAT NOTHING IN THE SOFTWARE OR ANYTHING ELSE PROVIDED PURSUANT TO THIS AGREEMENT CONSTITUTES OR IS INTENDED TO BE MEDICAL ADVICE OR A SUBSTITUTE FOR MEDICAL KNOWLEDGE OR JUDGMENT.
8. Term and Termination.
8.1. Term of Agreement. The Subscription Term of the agreement commences on the “Signature Date” and continues for the earlier of __36__ months or until all subscriptions hereunder have expired or have been terminated hereunder or by other written agreement of the parties (“Term”).
8.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Forms annexed as Exhibit A(s) hereto. Upon clearance of the implementation fee payment, Sunwave shall commence the full set up of the Software and Services ordered. The rights granted to Customer will include all patches, bug fixes, security fixes of Sunwave for the Software. As stated in the Service Order Form, invoices will be issued one (1) month in advance for the remainder of the Term of the Agreement for (i) the contracted monthly provider subscription per the Order Form and (ii) any additional provider subscriptions active at the end of the month prior. Customer agrees to pay the monthly invoice amount as specified in the Order Form beginning upon an invoice generated by Company starting the “Signature Date” and continuing for __36__ months in total. This Agreement will automatically renew for successive one-year periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless Client provides notice of termination not less than 90 days before the end of the Initial Term or current Renewal Term, as applicable. Applicable pricing, including monthly service fees, will continue unchanged from the previous term unless Sunwave notifies Client of changes in pricing at least 90 days prior to the expiration of the Initial Term or current Renewal Term, as applicable.
8.2.1 Customer Status re: Fees. In no event will any fees or price for any Software or Service described in this
Agreement increase more frequently than annually or increase more than CPI +3% of the contract. However, if after the first year of the Initial Term the third-party pricing incurred by Customer for outside resources used within the EMR Platform is increased by more than 3%. Sunwave will have the right to pass through that excess increase to Customer, subject to Customer’s right to first attempt to negotiate better direct pricing with said outside third-party resource.
8.3. Termination.
8.3.1 Termination by the Company. The Company may terminate the license and rights granted to Customer under this Agreement if: (i) Customer assigns the license for the benefit of creditors; (ii) Customer becomes insolvent; (iii) a trustee or receiver is appointed for a substantial part of Customer’s assets; or (iv) a proceeding is instituted against Customer under any provision of the Federal Bankruptcy Act that is acquiesced in and is not dismissed within sixty (60) days, or results in an adjudication of bankruptcy. The termination is effective upon Customer’s receipt of the Company’s written termination notice.
8.3.2 Termination by Customer. Customer may terminate the Agreement: (i) upon a breach by the Company of a material term of the Agreement which is not cured to the reasonable satisfaction of the Customer within sixty (60) days of written notice such breach, or such period of time which is reasonable and customary within the software industry, whichever is longer; Customer is responsible for meeting with Company in order to make sure all contract breaches are clearly understood by both parties (ii) Company assigns the subscription for the benefit of creditors; (iii) Company becomes insolvent; (iv) a trustee or receiver is appointed for a substantial part of Company’s assets; or (v) a proceeding is instituted against Company under any provision of the Federal Bankruptcy Act that is acquiesced in and is not dismissed within sixty (60) days, or results in an adjudication of bankruptcy.
8.4. Refund or Payment upon Termination. If this Agreement is terminated by Company in accordance with Section 8.3, Customer will pay any unpaid fees due and owing for all Order Forms as of and up to the date of termination.
8.5. Customer Data Portability and Deletion. Upon Customer request, Company will deliver standard patient medical records to Customer in pdf format within ninety (90) days from their request for a standard fee of $1,000.00. Customer’s undisputed payments must be up to date and paid in full at the time of request. Otherwise, Professional Services are charged at the then-current rate provided under this Agreement. Shipping fees for delivery of digital records (i.e. a compact disc), if necessary, will be invoiced separately at market rate. Delivery of non-standard patient records shall constitute additional service and incur additional fees at the then-current rate provided herein for Professional Services.
8.6. Surviving Provisions. The sections titled “Fees”, “Invoices and Payment”, “Other Fees and Charges”, “Confidentiality”, “Company Restrictions”, “Indemnification”, “Limitation of Liability”, “Refund or Payment upon Termination”, “Customer Data Portability and Deletion”, “Non-Sunwave Providers”, “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
9. Confidentiality. Company shall not disclose any Confidential Information of Customer to any individual, entity, or other third party unless (a) required by law or court order or (b) with Customer consent. The confidentiality rights and obligations of the Parties and their Affiliates are governed by the Information Security Addendum and as set forth in the BAA.
10. Security. Company is responsible for maintaining the security of the system and access to Customer’s data via Software, and will take all reasonable measures to ensure such security. Customer acknowledges that connection of its system or any component of the system to a communication line (including, without limitation, a telephone line or digital subscriber line providing Internet access) could permit a third party to access the Software and such data, even if Customer has taken security measures (such as the use of “firewalls”) approved, recommended or provided by the Company. Customer agrees that, upon a breach of security to system or data identified by Company, Company has the right to prohibit or limit access to Customer system and data until such breach has been resolved to Company and Customer’s satisfaction, but only to the extent necessary to prevent further harm to Company’s other customers and with as much advance notice to Customer as it commercially feasible for Company under the circumstances.
11. Indemnification.
Company will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Company in writing or, a Claim Against Customer, provided Customer (a) promptly give Company written notice of the Claim Against Customer, and (b) give Company all reasonable assistance, at Company expense. If Company receive information about an infringement or misappropriation claim related to a Service, Company may in Company discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Company warranties under “Warranties/Covenants” above and without any material reduction in functionality or (ii) obtain a license for Customer continued use of that Service in accordance with this Agreement, and / or (iii) only with Customer advance written consent, terminate Customer subscriptions for that Service upon 45 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. Notwithstanding the foregoing, any unilateral exercise of termination by Company, regarding this indemnification section without prior approval of Customer, on the basis of any allegation or claim of infringement, misappropriation, or violation of any other intellectual property right by Company, will constitute an incurable material breach of the Agreement. Each party will indemnify the other with regard to any breach of security and access to patient records which triggers a violation of HIPAA or HITECH to the extent that such breach involves one of their own employees or agents, who have acted negligently in the breach of security, whereby actual access to records and damages has occurred. Each party will bear their own expenses in investigating the source of any alleged breach.
12. Regulatory Matters.
12.1. HIPAA and Part 2 Compliance. Where, for purposes of this Agreement, the Company is a Business Associate and Qualified Service Organization and Customer is a Covered Entity as defined in the rules and regulations covered under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Company shall comply with the terms of the Business Associate Agreement.
12.2. The Anti-Kickback Law and Similar Laws. The parties acknowledge and agree that the amounts due to Company from Customer pursuant to this Agreement have been determined by the parties through good faith and arm’s length bargaining to be commercially reasonable, to reflect fair market value and to not in any way be based upon the volume or value of patient referrals or any other business generated between the parties. Company and Customer enter into this Agreement with the intent of conducting their relationship and implementing the agreements contained in this Agreement in full compliance with applicable federal, state and local law, including without limitation, the Medicare/Medicaid Anti-Kickback statute (the “Anti-Kickback Law”) and Section 1877 of the Social Security Act (the “Stark Law”), as amended. Notwithstanding any unanticipated effect of any of the provisions of this Agreement, neither party will intentionally conduct itself under the terms of this Agreement in a manner that would constitute a violation of the Anti-Kickback Law or the Stark Law or any similar State law, rule or regulation. Without limiting the generality of the foregoing, Company and Customer expressly agree that nothing contained in this Agreement shall require either party to refer any patients to the other, or to any affiliate or subsidiary of the other. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learn of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Company Legal Department.
12.3. No Disqualified or Excluded Parties. Company represents and warrants to Customer that, during the term of the Agreement, Company and each employee, contractor and/or agent of Company providing services hereunder has not been: (i) convicted of a criminal offense that falls within the ambit of 42 USC Section 1320a-7(a) (e.g., a conviction relating to services or supplies paid for by Medicare, Medicaid or other federal healthcare program), or (ii) excluded, debarred, suspended or otherwise ineligible to participate in a federal health care program, including but not limited to Medicare and Medicaid.
13. Data Sharing. Subject to these terms and conditions, Client grants to Sunwave a non-exclusive license to use, copy, store, transmit and display Client Data to the extent reasonably necessary to provide and maintain the Service. Moreover, it is expressly understood that Sunwave (i) may use Client Data, including protected health information, internally for Sunwave’s proper management and administrative services or to carry out its legal responsibilities, (ii) may use Client Data, including protected health information, to provide Data Aggregation services as defined by HIPAA, (iii) may use Client Data, including protected health information, to create de-identified health information in accordance with the HIPAA de-identification requirements and, without limiting any other rights of Sunwave under this Agreement. Sunwave may use, create, sell, disclose to third parties and otherwise commercialize de-identified health information for any purposes not prohibited by law, it being understood that Sunwave owns all rights, title and interest in such de-identified health information and any data, information and material created by Sunwave with such de-identified health information.
14. General Provisions
14.1. Export Compliance. The Services, Content, other technology Company make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
14.2. Compliance with Applicable Law. Without limiting any other provision of this Agreement, the Parties shall be responsible for their compliance with all applicable laws, regulations, and rules. Company shall be obligated to make any updates to the Software that may become necessary due to changes in federal or state law or payor requirements.
14.3 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c) except for notices of termination or an indemnifiable claim (“Legal Notices”) by Company, which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
14.4. Relationship of Parties. It is expressly acknowledged by the parties that the Company and its employees and agents are “independent contractors” of Customer. Nothing in this Agreement is intended or shall be construed to create an employer/employee relationship or a joint venture relationship between the parties.
14.5. Governing Law/Forum. This Agreement and performance hereunder shall be governed by and construed in accordance with the laws of the State of Florida, exclusive of conflict of laws rules. Any and all proceedings related to the subject matter hereof shall be maintained in the courts of Palm Beach County Florida, which courts shall have exclusive jurisdiction for such purpose.
14.6 Force Majeure. If either party is delayed from performing or fails to perform any of its obligations under this Agreement and such delay or default is caused by conditions affecting a party that are beyond its reasonable control including any act of God (e.g., floods, fires, storms) or government restrictions (e.g., by order of civil or military authority) (a “Force Majeure event”), such party shall not be liable under this Agreement for failing to fulfill such obligations during the occurrence of such force majeure event. Company will be held liable for the performance, failure to perform, and delays of our subcontractors, except to the extent that a Force Majeure event causes our subcontractor(s) to experience delays from performing or a failure in performance and such delay or default is caused by conditions beyond our subcontractor(s)’s reasonable control. Neither Party shall be in breach of its obligations under this Agreement or incur any liability to the other Party for any losses or damages of any nature whatsoever incurred or suffered by that other (otherwise than under any express indemnity in this Agreement) if and to the extent that it is prevented from carrying out those obligations by, or such losses or damages are caused by, a Force Majeure Event except to the extent that the relevant breach of its obligations would have occurred, or the relevant losses or damages would have arisen, even if the Force Majeure Event had not occurred. As soon as reasonably practicable following the date of commencement of a Force Majeure Event, and within a reasonable time following the date of termination of a Force Majeure Event, any Party invoking it shall submit to the other Party reasonable proof of the nature of the Force Majeure Event and of its effect upon the performance of the Party’s obligations under this Agreement. Further, Company shall, and shall require its Subcontractors to, at all times take all reasonable, good faith steps within their respective powers (but without incurring unreasonable additional costs) to: (a) prevent Force Majeure Events affecting the performance of the Company’s obligations under this Agreement; (b) mitigate the effect of any Force Majeure Event; and (c) comply with its obligations under this Agreement. Notwithstanding anything to the contrary contained in this Agreement, in the event that a Force Majeure Event affecting Company shall have occurred and be continuing for sixty (60) consecutive days, Customer shall be entitled to immediately terminate this Agreement upon written notice to the other party.
14.7. Severability/No Waiver. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. No waiver by any party of any provision of this Agreement in any instance shall be effective unless in writing, signed by the affected party, and no such waiver shall constitute a waiver as to any other provision of this Agreement in any other instance.
14.8. Entire Agreement/Counterparts. This Agreement constitutes the entire understanding between the parties with respect to the subject matter contained herein. This Agreement may be amended or modified from time to time but only by an agreement in writing signed by both of the parties. This Agreement supersedes any prior agreements and understandings between the parties with respect to the subject matter contained herein. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement.
14.9. Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors. Customer or Company may assign the Agreement to an affiliate or in connection with a sale of the applicable Customer business unit, provided that Company has determined that the assignee has sufficient financial resources to be reasonably able to perform its obligations under the Agreement.
15.0. MARA TERMS OF USE Effective as of August 29th, 2023 these MARA Terms of Use MARA Terms”) are entered into by and between Sunwave and Customer. These MARA Terms pertain specifically to Customer’s use of MARA and are intended to be read in conjunction with the Subscription Agreement (“Agreement”) between the parties. Capitalized terms used and not defined herein have their respective meanings assigned to them in the Agreement.
15.1. MARA. MARA is designed to enable healthcare practitioners to quickly and efficiently generate patient summaries based on existing patient records. Utilizing advanced artificial intelligence algorithms, MARA aims to streamline the documentation process, thereby allowing practitioners to focus more on patient care.
15.2. Customer Responsibility. MARA is powered by artificial intelligence and, as such, may produce results that are not accurate. Customer acknowledges and agrees that it is solely responsible for ensuring that any patient summaries generated by MARA are accurate and faithfully represent the patient’s medical records. Customer acknowledges and agrees that the Company shall not be responsible for, nor incur any liability arising from, the Customer’s failure to ensure that patient summaries generated by MARA are accurate. Customer shall indemnify, defend, and hold harmless Sunwave from and against any and all claims, damages, liabilities, costs, and expenses arising from or related to any such failure.
15.3. Client Data. Customer acknowledges that any outputs generated by MARA shall be considered “Client Data” as defined in the Agreement.
15.4. Disclaimer. MARA is a new product and its features and functionalities may be subject to change. Sunwave disclaims any and all warranties, whether express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
15.5. Miscellaneous.
(a) The MARA Terms may be executed in counterparts, each of which is deemed an original, but all of which constitute one and the same agreement.
(b) The MARA Terms the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of a conflict between the MARA Terms and the Agreement, the MARA Terms will govern.
Non-Disclosure Agreement (NDA)
By accessing and using Sunwave Health’s services, you agree to the following terms regarding the confidentiality of shared information between you and Sunwave Health, Inc., including its subsidiaries and affiliated companies.
- Confidentiality Obligations
Both parties will use their best efforts to maintain the confidentiality of each other’s proprietary information. Each party shall use a level of care equivalent to that used to protect its own confidential information of similar importance to prevent unauthorized disclosure or use. - Exceptions to Confidentiality
Confidentiality obligations do not apply to information that:
(a) is independently developed without reference to the other party’s Confidential Information;
(b) becomes publicly available without breach of this Agreement;
(c) is disclosed by a third party not under confidentiality obligations; or
(d) is approved for release in writing by the disclosing party. - Disclosure on a Need-to-Know Basis
Confidential information may only be shared internally with employees or consultants who require access to fulfill the Agreement’s purpose. Each party is responsible for ensuring that their personnel uphold these confidentiality obligations. - Copying Restrictions
Neither party may copy or reproduce Confidential Information without the prior written consent of the other party, except for employees or consultants who need it for legitimate purposes related to this Agreement. - Usage Restriction
Confidential Information may only be used for the specific purposes outlined in this Agreement. - Return or Destruction of Information
Upon termination of the business relationship or upon request, each party will return or destroy all Confidential Information of the other party, certifying the destruction of any copies. - No Expiration of Confidentiality Obligations
Obligations to maintain confidentiality do not expire. - Legal Obligations to Disclose
If a party is legally obligated or receives a demand to disclose any Confidential Information, they will notify the other party immediately and cooperate in seeking protective measures. - Injunctive Relief for Breach
In the event of a confidentiality breach or threatened breach, the non-breaching party may seek an injunction, in addition to other legal remedies. - Governing Law and Modifications
This Agreement is governed by the laws of the State of Florida. It represents the entire agreement regarding nondisclosure of confidential information and supersedes any prior representations or agreements. Modifications to this Agreement require written consent from both parties.
Last update: 9/1/24
Sunwave Health reserves the right to update these Terms periodically. Any changes will be posted on this page, and we encourage you to review them regularly to stay informed of updates.
