The following terms and conditions constitute the terms of service for the Client’s use of
Sunwave’s electronic medical records platform and any and all related products and services,
including those services and products added subsequently to the platform (the “Service”).
“Sunwave” means Sunwave Solutions, LLC. These terms and conditions must be adhered to
by any party entering into a Sunwave Service Order Form (“Service Order”) for the Service.
Sunwave maintains the right to update, revise and modify these terms and conditions at any
time, but in such event will notify you via the email address included in your Service Order
that these terms and conditions have been changed. It is your responsibility to notify
Sunwave in the event the email included in the Service Order has changed.
1. Definitions. The following definitions (and additional definitions provided below)
will apply:
1.1. “Client” means the legal entity or individual, including any and all
affiliates, that enters into these terms and conditions as described on the Service
Order.
1.2. “Client Data” means data, information or material provided or submitted by
Client or any permissible User to Sunwave in the course of utilizing the Service.
1.3. “Client Representative” means the permissible Users designated by Client
as authorized to request the creation of User accounts, administer Client’s use of the
Service and otherwise represent Client for the purpose of these terms and conditions.
1.4. “Patient” means patient of serviced facility.
1.5. “Pricing Schedule” means pricing specified in a Service Order.
1.6. “Service” means Sunwave’s service and applicable documentation, if any,
on Sunwave’s web site.
1.7. “Term” means the applicable terms specified in the Service Order.
1.8. “User” means one of Client’s employees, representatives, consultants,
contractors or agents and other persons expressly permitted by Client in connection
with Client’s business affairs who are authorized to use the Service and have been
supplied User identifications and passwords by Client (or by Sunwave at Client’s
request), as specified in the Service Order, but in no event a competitor or any person
or entity that could be reasonably deemed a competitor of Sunwave.
1.9. “Sunwave Content” means Sunwave-supplied text, audio, video, graphics,
source code, object code and other information, content and data available by means
of the Service or on Sunwave’s web site, including, but not limited to, any
technology related to billing services used by Sunwave and/or provided to Client.
2. Client Use of the Service
2.1. Sunwave grants Client the license to access and use the Service during the
Term via the Internet under and subject to Client’s strict adherence to the terms and
conditions. Sunwave will host the Service or will contract with others to host the
service in Sunwave’s sole discretion. Sunwave reserves the right to make changes
and updates to the functionality and/or documentation, as applicable, of the Service
from time to time.
2.2. Client is licensed during the Term to store, print, and display the Sunwave
Content and to permit Users to access it only in connection with use of the Service.
No other use of Sunwave Content is permitted. Client will maintain and will require
its Users to maintain Sunwave Content as Confidential Information (as defined
below) of Sunwave. Client shall be allowed to use the Sunwave Content to create
reports for the purpose of compliance with Administrative, Regulatory, and
Accreditation requirements of the United States’ government (collectively
“Government Reports”). The distribution on a confidential basis of Government
Reports to the requesting government entity shall not be deemed a violation of the
Client’s licensing rights.
3. Number of Authorized Users
Client is initially authorized to permit use by the number of Users listed in the
Service Order. Client, by its Client Representative, may request the creation of
additional Users by contacting Sunwave Client support by email or phone or by
utilizing applicable features of the Service. Client will be bound by the instructions
and authorizations provided by its Client Representative. In the event Client fails to
designate a Client Representative, the Client Representative shall be the individual
who signs the Service Order on behalf of Client. Sunwave may, at its discretion,
require that Client Representative confirm any instruction or request made to
Sunwave verbally be confirmed in writing, in which case Client shall provide
Sunwave with such instruction or request in writing.
4. Fees Generally
Client agrees to pay the monthly service fees as set forth in the Service Order or as
Sunwave and Client otherwise agree in writing. In addition, the one-time, non-
refundable Implementation Fee stated in the Service Order shall be paid upon
signing of the Service Order by Client, and after signing and upon clearance of the
payment, Sunwave shall commence the full set up of the Sunwave system.
4.1. Unless otherwise specified in the Service Order, Sunwave will invoice
monthly for use of the Service approximately one month before commencement of
the Service and at approximately the same time each month thereafter. All invoices
for any charges under these terms and conditions and the Service Order are due and
payable upon receipt. The Implementation Fee is due and payable as specified in the
Service Order, unless otherwise agreed upon by Sunwave in writing. For Clients
paying via credit card, Client’s credit card is charged simultaneously with the
creation of the Client’s invoice or as specified in the ACH/credit card authorization
form provided by Sunwave and completed by Client. Client agrees to authorize
Sunwave to receive payments automatically via ACH or via monthly credit card
processing. Such authorization will be provided to Sunwave no later than three (3)
days from Sunwave providing Client with Sunwave’s ACH/credit card authorization
form. Client’s account will be considered delinquent if payment in full is not
received within five days after receipt of the invoice. Amounts due are exclusive of
all applicable taxes, levies, or duties, and Client will be responsible for payment of
all such amounts (with the exception of Sunwave income taxes). All amounts are
payable in U.S. dollars. If Client believes that any specific charge is incorrect, in
order to obtain a credit, Client must contact Sunwave in writing within five (5) days
of invoice date setting forth the nature and amount of the requested correction;
otherwise invoices are final. If a credit is given based on a requested correction, it
will be applied immediately and the invoice will be resubmitted for payment. The
corrected invoice will be due upon receipt.
5. Non-Payment
5.1. In addition to other applicable remedies, if Client’s account becomes
delinquent, Sunwave may in its discretion notify Client, whereupon Client will have
ten days to cure the deficiency, failing which Sunwave may suspend and/or terminate
Client’s access to the Service within twenty four hours.
5.2. Delinquent invoices are subject to interest of 1.5% per month on any
outstanding balance, or the maximum permitted by law, whichever is less, plus all
expenses of collection, including attorneys’ fees and court costs. Client will be
charged all applicable fees incurred during any period of suspension. If the Service
is suspended due to failure to pay, an additional reconnect fee, as specified in the
Service Order, will be charged each time any such reconnect is necessary.
6. Account Information Submitted to Sunwave
Client agrees to provide Sunwave in writing with billing and contact information as
Sunwave may reasonably require, including Client’s legal company name, street
address, email address, and name and telephone number of an authorized billing
contact, as well as the name, User name and password of the Client Representative.
Client shall update this information immediately, in writing, by means of email if
there is any change to such information. In the event the Client has multiple
facilities, Client may choose to have one authorized Client Representative for each
facility, provided Client supplies Sunwave all of the above noted information in this
Section.
7. Appropriate Use of the Service
7.1. While Users may be any persons that Client authorizes to use the Service
for its business, including, but not limited to, Client’s employees and contractors,
Client may not sublicense, resell or supply the Service for use in or for the benefit of
any other organization, entity, business, or enterprise without Sunwave’s prior
written consent.
7.2. Client agrees not to submit to the Service any material that is illegal,
misleading, defamatory, indecent or obscene, threatening, infringing of any third
party proprietary rights, invasive of personal privacy, or otherwise objectionable
(collectively “Objectionable Matter”). Client will be responsible to ensure that its
Users do not submit any Objectionable Matter. In addition, Sunwave may, at its
option, adopt rules for permitted and appropriate use and may update them from time
to time on the Sunwave website; Client and Client’s Users will be bound by any such
rules. Sunwave reserves the right to remove any Client Data that constitutes
Objectionable Matter or violates any Sunwave rules regarding appropriate use, but is
not obligated to do so. Client and Client’s Users will comply with all applicable laws
regarding Client Data, use of the Service and the Sunwave Content, including laws
involving private data and any applicable export controls. Sunwave reserves the right
to terminate the Services and these terms and conditions for cause in case the Client
materially breaches the provisions of this Section 8.
7.3. Sunwave reserves the right to suspend or terminate immediately any Client
or User account or activity that is disrupting or causing harm to Sunwave’s
computers, systems or infrastructure or to other parties, or is in violation of state or
federal laws including, without limitation, the Health Insurance Portability and
Accountability Act (HIPAA). Any willful violation of HIPAA by Client will be a
material breach of these terms and conditions and in such instance Sunwave reserves
the right to terminate the Services.
7.4. Without limiting any other provision of these terms and conditions, under
no circumstances may Client provide access to the Service, directly or indirectly, to
any party that may reasonably be construed by Sunwave to be a competitor of
Sunwave. In the event that Client does so, such access to such party provided by
Client shall be deemed a material breach of these terms and conditions and Client
hereby acknowledges that Sunwave shall be substantially harmed by such action.
8. Passwords and Access
Client is responsible for all activities that occur under Client’s User accounts. Client
is responsible for maintaining the security and confidentiality of all User usernames
and passwords. Client agrees to notify Sunwave immediately of any unauthorized
use of any Service username or password or account or any other known or
suspected breach of security.
9. Client Data
9.1. All Client Data submitted by Client to Sunwave, whether posted by Client
or by Users, will remain the sole property of Client or such Users to the full extent
provided by law.
9.2. Client will have sole responsibility for the accuracy, quality, integrity,
legality, reliability, appropriateness of and copyright permissions for all Client Data.
Sunwave will not use the Client Data for any purpose other than to provide the
Service or associated services to Client and for statistical reporting purposes.
Sunwave may aggregate anonymous statistical data regarding use and functioning of
its system by its various Users. Such aggregated statistical data will be the sole
property of Sunwave.
9.3. Sunwave will use commercially reasonable security measures to protect
Client Data against unauthorized disclosure or use. Such reasonable security
measures will be at all times in compliance with HIPAA, HITECH and any other
security regulations associated with protected healthcare data and information, which
may from time to time be modified by the regulators.
9.4. Notwithstanding anything to the contrary contained herein, Client hereby
acknowledges and agrees that Sunwave shall have the right to identify and list Client
as a Sunwave Client (including the right to use the Client’s trademark, service marks,
trade names, logos and other commercial or product or service designation(s) for
such purpose), and the general nature of the services provided by Sunwave in any of
Sunwave’s website, portfolio, marketing, advertising, promotional and/or other
materials.
10. Limited License to Client Data
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 right, title and interest in such de-identified health information and
any data, information and material created by Sunwave with such de-identified
health information, (iv) may use and disclose Client Data, including protected health
information, for purposes of obtaining an authorization to use and disclose protected
health information or any other permission from an individual and (v) may use and
disclose Client Data, including protected health information, for research purposes as
permitted by applicable law.
11. Sunwave’s Ownership
Sunwave retains all rights in the Service and Sunwave Content. Neither these terms
and conditions nor any Service Order grants any ownership rights to Client. No
license is granted to Client except as to use of the Service as expressly stated herein.
The Sunwave name, the Sunwave logo, and the product names associated with the
Service are trademarks of Sunwave or third parties, and they may not be used
without Sunwave’s prior written consent. Any and all intellectual property included
in or related to the Sunwave Content and Services, whether under copyright,
trademark, patent or trade secret is owned by Sunwave, who possesses all rights, title
and interest to such Sunwave Content and Services including, but not limited to, all
source code, object code, trade design, trade dress and any and all materials related
to the Services whatsoever.
12. Restrictions on Use of the Service
Client may not alter, resell or sublicense the Service or provide it as a service to third
parties. Client agrees not to reverse engineer the Service or its software or other
technology. Client will not use or access the Service to: (i) build a competitive
product or service, (ii) make or have made a product using similar ideas, features,
functions or graphics of the Service, (iii) make derivative works based upon the
Service or the Sunwave Content or (iv) copy any features, functions or graphics of
the Service or the Sunwave Content. Client will not “frame” or “mirror” the Service.
Use, resale or exploitation of the Service and/or the Sunwave Content except as
expressly permitted in these terms and conditions is prohibited.
13. Privacy
Sunwave agrees to implement its privacy policies in effect from time to time.
Sunwave reserves the right to modify its privacy and security policies from time to
time in its sole business judgment and as it deems necessary for compliance with
applicable law.
14. Warranties
Each party represents and warrants that it has the legal power and authority to enter
into these terms and conditions. Client represents and warrants that it has not falsely
identified itself or provided any false information to gain access to the Service and
that Client’s billing information is correct.
15. Professional Services
15.1. Client may retain Sunwave to perform additional professional services
(“Professional Services”) as the parties may agree upon in writing in a writing to be
added to the Service Order. Sunwave will use reasonable efforts to carry out the
Professional Services stated in the Service Order and to provide any resulting
functionality in the Service made available online to Client and Client’s Users.
Except as the parties otherwise agree in any such modified Service Order,
Professional Services and the results therefrom are made available “AS IS.”
15.2. Only to the extent agreed in writing in the modified Service Order,
Professional Services are provided by Sunwave on a time and materials basis at
Sunwave’s then applicable rates and subject to such deposit or advance payment as
Sunwave may require. Maintenance and support of code or functionality created by
means of Professional Services will likewise be on a Service Order basis under this
Section unless otherwise agreed in writing. The code and functionality made or
provided under this Section and all interests therein, including copyrights, patents,
trademarks trade secrets and any intellectual property whatsoever will be Sunwave’s
sole and exclusive property. Access to the results of Professional Services will be
available as part of the Service during the Term unless otherwise agreed in writing.
As mutually agreed in a modified Service Order, Sunwave may bill for Professional
Services on a weekly or monthly basis, at its discretion.
16. Indemnification
16.1. Sunwave will defend, indemnify, and hold Client (and its officers, directors,
employees and agents) harmless from and against all costs, liabilities, losses, and
expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising from
any third party claim, suit, action, or proceeding arising from the infringement of any
United States copyright, patent, trademark, or misappropriation of a trade secret by
the Service or Sunwave Content (other than that due to Client Data) that is finally
sustained. In case of such a claim, Sunwave may, in its discretion, procure a license
that will protect Client against such claim without cost to Client, replace the Service
with a non-infringing Service, or if it deems such remedies not practicable, Sunwave
may terminate the Service without fault, provided that in case of such a termination,
Client will receive a pro-rata refund of the license fees prepaid for use of the Service
not yet furnished as of the termination date. THIS SECTION STATES CLIENT’S
SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS
ALLEGING INFRINGEMENT.
16.2. Client will defend, indemnify, and hold Sunwave (and its officers, directors,
employees and agents) harmless from and against all Losses arising out of or in
connection with a claim, suit, action, or proceeding by a third party (i) alleging that
the Client Data or other data or information supplied by Client infringes the
intellectual property rights or other rights of a third party or has caused harm to a
third party or (ii) arising out of breach of Sections 9 (Appropriate Use of the Service)
or 10 (Passwords and Access) above.
16.3. Client will defend, indemnify, and hold Sunwave (and its officers, directors,
employees and agents) harmless from any expense or cost arising from any third
party subpoena or compulsory legal order or process that seeks Client Data and/or
other Client-related information or data, including, without limitation, prompt
payment to Sunwave of all costs (including attorneys’ fees) incurred by Sunwave as
a result. In case of such subpoena or compulsory legal order or process, Client also
agrees to pay Sunwave for its staff time in responding to such third party subpoena
or compulsory legal order or process at Sunwave’s then applicable hourly rates.
16.4. In case of any claim that is subject to indemnification under these terms and
conditions, the party that is indemnified (“Indemnitee”) will provide the
indemnifying party (“Indemnitor”) prompt notice of the relevant claim. Indemnitor
will defend and/or settle, at its own expense, any demand, action, or suit on any
claim subject to indemnification under these terms and conditions. Each party will
cooperate in good faith with the other to facilitate the defense of any such claim and
will tender the defense and settlement of any action or proceeding covered by this
Section to the Indemnitor upon request. Claims may be settled without the consent of
the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or
liability of Indemnitee.
17. Disclaimers and Limitations
17.1. THE WARRANTIES EXPRESSLY STATED IN THESE TERMS AND
CONDITIONS ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED
BY SUNWAVE. THERE ARE NO OTHER WARRANTIES OR
REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 16, ABOVE,
THE SERVICE AND SUNWAVE CONTENT ARE PROVIDED TO CLIENT ON
AN “AS IS” AND “AS AVAILABLE” BASIS. CLIENT ASSUMES ALL
RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE
INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT
FOR CLIENT’S PURPOSES. SUNWAVE DOES NOT WARRANT THAT USE
OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. SUNWAVE
IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CLIENT
OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE
INTERNET.
17.2. Except with regard to Client’s payment obligations, and either party’s
indemnification obligations, in no event will either party’s aggregate liability under
this Agreement exceed the license fees due for a 12 month period measured by the
monthly payment obligation at the time of the event or circumstance giving rise to
such claim. Except in regard to Client’s breach of Sections 9 or 10.2, in no event will
either party be liable for any indirect, special, incidental, consequential damages of
any type or kind (including, without limitation, loss of data, revenue, profits, use or
other economic advantage).
17.3. The Service may include gateways, links or other functionality that allows
Client and/or Users to access third party services (“Third Party Services”) and/or
third party content and materials (“Third Party Materials”). Sunwave does not
supply and is not responsible for any Third Party Services or Third Party Materials,
which may be subject to their own licenses, end-user agreements, privacy and
security policies, and/or terms of use. SUNWAVE MAKES NO WARRANTY AS
TO THIRD PARTY SERVICES OR THIRD PARTY MATERIALS
WHATSOEVER.
18. Confidentiality
18.1. “Confidential Information” means non-public information, technical data or
know-how of a party and/or its affiliates, which is furnished to the other party in
written or tangible form in connection with these terms and conditions. Oral
disclosure will also be deemed Confidential Information if it would reasonably be
considered to be of a confidential nature or if it is confirmed at the time of disclosure
to be confidential. Service Orders are to be deemed confidential information
18.2. Notwithstanding the foregoing, Confidential Information does not include
information which is: (i) already in the possession of the receiving party and not
subject to a confidentiality obligation to the providing party; (ii) independently
developed by the receiving party; (iii) publicly disclosed through no fault of the
receiving party; (iv) rightfully received by the receiving party from a third party that
is not under any obligation to keep such information confidential; (v) approved for
release by written agreement with the disclosing party; or (vi) disclosed pursuant to
the requirements of law, regulation, or court order, provided that the receiving party
will promptly inform the providing party of any such requirement and cooperate with
any attempt to procure a protective order or similar treatment.
18.3. Neither party will use the other party’s Confidential Information except as
reasonably required for the performance of these terms and conditions. Each party
will hold in confidence the other party’s Confidential Information by means that are
no less restrictive than those used for its own confidential materials. Each party
agrees not to disclose the other party’s Confidential Information to anyone other than
its employees or subcontractors who are bound by confidentiality obligations and
who need to know the same to perform such party’s obligations hereunder. The
confidentiality obligations set forth in this Section will survive after the termination
or expiration of the Services.
18.4. Upon termination or expiration of the Services, except as otherwise agreed
in writing or otherwise stated in these terms and conditions, each party will, upon the
request of the disclosing party, either: (i) return all of such Confidential Information
of the disclosing party and all copies thereof in the receiving party’s possession or
control to the disclosing party; or (ii) in the event the Client cannot be reached by
Sunwave, destroy all Confidential Information and all copies thereof in the receiving
party’s possession or control. The receiving party will then, at the request of the
disclosing party, certify in writing that no copies have been retained by the receiving
party, its employees or agents.
18.5. In case a party receives legal process that demands or requires disclosure of
the disclosing party’s Confidential Information, such party will give prompt notice to
the disclosing party, if legally permissible, to enable the disclosing party to challenge
such demand.
19. Term and Termination
19.1. The Term of the Services and any related licenses is as specified in the
Services Order.
19.2. Applicable pricing, including monthly minimum fees, will continue
unchanged from the previous term unless Sunwave notifies Client of changes in
pricing upon 30 days written notice. Sunwave reserves the right to terminate the
Services in its discretion for convenience with not less than ninety (90) days prior,
written notice.
19.3. Sunwave, in its sole discretion, may suspend or terminate Client’s username
and password, account, or use of the Service if Client materially breaches these terms
and conditions and such breach has not been cured to Sunwave’s satisfaction within
10 business days of notice of such breach. Notwithstanding the foregoing, in the
event Client fails to pay its monthly license fee when due, Sunwave may, in its sole
discretion, suspend or terminate Service upon two (2) days’ email notice after the
cure period specified herein.
19.4. In the event that the Services are terminated (for any reason other than
Client’s breach of this Agreement), Sunwave will, within ten (10) days of a Client’s
request, make available one backup of the Client Data either in Sunwave’s standard
format or in a format acceptable to Client and Sunwave, subject to the satisfaction by
Client of any outstanding sums due and payable by Client to Sunwave. Client agrees
and acknowledges that Sunwave has no obligation to retain and may delete Client
Data that remains in Sunwave’s possession or control more than sixty (60) days after
termination unless otherwise required by law.
19.5. The following provisions, including this one, will survive termination: all
definitions, Client’s accrued financial obligations, the license to Client Data to the
extent reasonable for Sunwave’s discharge of its post-termination obligations, and
the following Sections and paragraphs: 1 (Definitions), 6.2 (Overdue Payments), 8.4
(Appropriate Use of Services) 10.1 (Client Data), 12 (Sunwave’s Ownership), 13
(Restrictions on Use of the Service), 17 (Indemnification), 18 (Disclaimers and
Limitations), 19 (Confidentiality), 20.4 (Return of Client Data), 20.6 (Survival of
Provisions), 21 (Notice), 23 (Arbitration), 24 (Non-Solicitation), and 25
(Miscellaneous).
20. Notice
Sunwave may give notice by means of electronic mail to Client’s email address on
record in Client’s account or by written communication sent by first class mail or by
courier service to Client’s address on record in Client’s account. Such notice will be
deemed to have been given upon the expiration of 36 hours after mailing (if sent by
first class mail) or sending by courier or 12 hours after sending (if sent by email), or,
if earlier, when received. Client may give notice to Sunwave by email with verified
delivery. A party may, by giving notice, change its applicable address, email, or
other contact information.
21. Assignment
This terms and conditions may not be assigned by Client without the prior written
approval of Sunwave but may be assigned by Sunwave to (i) a parent or subsidiary,
(ii) an acquirer of all or substantially all of Sunwave’s assets involved in the
operations relevant to these terms and conditions, or (iii) a successor by merger or
other combination. Any purported assignment in violation of this Section will be
void. These terms and conditions may be enforced by and is binding on permitted
successors and assigns.
22. Arbitration
Any dispute arising under these terms and conditions or the termination of the
Services or the termination of these terms and conditions will be first subject to
mandatory, non-binding mediation as follows: the parties agree to mediate such
dispute with a single mediator agreed to by the parties prior to invoking the
arbitration provision below. In the event mediation is not successful, the dispute will
be subject to binding arbitration in Palm Beach County, Florida, under the
commercial rules of the American Arbitration Association before a single arbitrator
to be chosen by the AAA. The parties will share the mediation and arbitration fees
equally. Any arbitration award will be enforceable in any court of competent
jurisdiction and will not be inconsistent with the terms of these terms and conditions.
Nothing herein will prevent a party’s application to a court of law for injunctive
relief to prevent irreparable harm.
23. Non-Solicitation
During the Term and for a period of one year thereafter, Client will not, and will
ensure that its affiliates will not, directly or indirectly: (i) solicit for employment or
for performance of any services any person employed by Sunwave or (ii) hire or
engage for any services any person employed by Sunwave.
24. Miscellaneous
24.1. Choice of Law; Jurisdiction. These terms and conditions will be interpreted
fairly in accordance with its terms, without any strict construction in favor of or
against either party and in accordance with the laws of the State of Florida and
applicable US federal law. Except as provided in the arbitration clause, the state and
federal courts located in the Palm Beach County, Florida will have sole and
exclusive jurisdiction and venue over any dispute or controversy arising from or
relating to these terms and conditions or its subject matter. In no event may Client
participate in any class action brought against Sunwave.
24.2. Severability. If any provision of these terms and conditions are held by a
court of competent jurisdiction to be invalid or unenforceable, then such provision(s)
will be construed, as nearly as possible, to reflect the intentions of the invalid or
unenforceable provision(s), with all other provisions remaining in full force and
effect.
24.3. No Agency. No joint venture, partnership, employment, or agency
relationship exists between Client and Sunwave as a result of these terms and
conditions or use of the Service.
24.4. No Waiver. The failure of Sunwave to enforce any right or provision in
these terms and conditions will not constitute a waiver of such right or provision
unless acknowledged and agreed to by Sunwave in writing.
24.5. Force Majeure. Except for the payment by Client, if the performance of
these terms and conditions by either party is prevented, hindered, delayed or
otherwise made impracticable by reason of any flood, riot, fire, judicial or
governmental action, labor disputes, act of God or any other causes beyond the
control of such party, that party will be excused from such to the extent that it is
prevented, hindered or delayed by such causes.
24.6. Entire Agreement. These terms and conditions together with any applicable
Schedule(s), the Business Associate Agreement and the Service Order, comprise the
entire Agreement between Client and Sunwave and supersede all prior or
contemporaneous negotiations, discussions or agreements, whether written or oral,
between the parties regarding the subject matter contained herein. No amendment to
or modification of these terms and conditions will be binding unless in writing and
signed by an authorized representative of each party, except that Client
acknowledges that Sunwave may revise and modify these terms and conditions
subject to providing Client with notice via email as specified above. Moreover, and
notwithstanding the foregoing, any Business Associate Agreement entered into
between the parties, pursuant to HIPAA regulations, shall be in full force and effect
pursuant to the terms specified in any such Business Associate Agreement and to the
extent any terms specified in such Business Associate Agreement conflict with the
terms of these terms and conditions such Business Associate Agreement shall
control.
