Upon Provider’s execution of an applicable Sales Order, these General Terms, combined with the terms of the Sales Order and any Statement of Work (collectively, the “Agreement”) form a binding contract between Provider and Clearwave with respect to any and all services performed by Clearwave for Provider, or its Affiliate Entities (as defined herein) pursuant to such terms.
1.1 Implementation and Use, Clearwave shall provide Provider with hosted application software to provide a web-based insurance provider management network to handle patient registration, eligibility verification, settlement of healthcare service, credit processing services and other communication and processing of healthcare transactions through the use of a web portal, each as applicable, (the “Provider Web Portal”) and network usable by various self-service devices and Clearwave may also provide Additional Work Items as described in an applicable Sales Order (collectively, the “Services”). Clearwave may also allow, pursuant to a Sales Order, for access and use of the Services by one or more of Provider’s affiliated company(ies) (“Affiliate Entities”). Such Affiliate Entities shall be entitled to the same rights and subject to the same obligations as set forth herein as if they were the Provider accessing and using the Services and Self-Service Device. Clearwave may enforce these terms against any entity that is provided access to the Services and/or Self-Service Device as if the Affiliate Entity had executed the Sales Order and Provider and its Affiliate Entities shall be jointly and severely liable for their respective actions hereunder. Clearwave has sole discretion to allow or disallow an Affiliate Entities’ further access and use of the Services in the event of Provider or its Affiliate Entity(ies)’ breach of this Agreement or of an applicable Sales Order. To access and use the Services, Provider’s patients may access the Clearwave network via a hardware device supplied by Provider, or which may be provided to Provider pursuant to the terms of the Sales Order as described in the Self-Service Device Addendum (referred to as a “Self-Service Device”). A list of participating insurance provider payors will be provided upon Provider’s request. This list is subject to change from time to time. Provider may be required to create a login and password for Clearwave to certain payors’ websites (e.g., Medicaid, Tricare, AARP, EyeMed, etc.) and maintain those passwords for the Services to function properly (hereafter referred to as “Enhanced Connection”). Provider acknowledges that the use by an insurance provider payor of any type of program or system intended to distinguish human from machine input (e.g., Captcha software) may render such Enhanced Connection inaccessible and the Service will not be available. In the case of Medicaid, the Enhanced Connection may also provide a means to avoid a significant transaction fee levied by some Medicaid plans. If Clearwave incurs a transaction charge from Medicaid resulting from Provider’s election to not use an Enhanced Connection for its access and use of the Services as to Medicaid, Provider shall reimburse Clearwave for such fees.
1.2 Training, Provider will work diligently with Clearwave to configure Provider’s account, including, without limitation, establishing the access privileges for each Designated User (defined below) within the timelines established on the Sales Order with respect to implementation and training. Provider is solely responsible for obtaining and maintaining the necessary hardware, browser, operating system software, communications links and services, and proper locations necessary to access and use the Services and for providing Internet connectivity to Provider’s personal computer(s), and mobile devices sufficient to meet Provider’s utilization demands. Without limiting the foregoing, Clearwave may change the browser requirements for its Provider Web Portal and other elements of the Services from time to time to incorporate new technology. Clearwave agrees to provide at least sixty (60) days’ notice to Provider before releasing new software that requires a browser upgrade. After such notice, Provider is responsible for updating its hardware and software, including without limitation, web browsers, to maintain compatibility with the Provider Web Portal and other elements of the Services.
1.3 Access and Use, Subject to Provider’s compliance with this Agreement, Clearwave hereby grants Provider access to the Provider Web Portal. Provider is responsible for designating its employees or other representatives authorized to use the Services or Self-Service Device on its behalf (each, a “Designated User”) and the scope of each such Designated User’s permissible use. Provider warrants and represents that each Designated User has all necessary authority to use the Services and Self-Service Device to which such Designated User is assigned. Provider’s patients are not considered Designated Users under this grant of access. Provider shall not share its user login information with any third party unless Clearwave gives Provider prior written approval. Additionally, each Designated User login is unique and shall be assigned to only one individual. Provider shall not permit Designated Users to share logins. Provider may use the Clearwave Provider Web Portal at each location designated in the Sales Order. Provider shall be fully responsible for all acts or omissions of its Designated Users under this Agreement. Clearwave is not responsible for any loss or damage caused by unauthorized access to the Services or Self-Service Device resulting from Provider’s acts or omissions.
1.4 Features, All aspects and/or features of the Services shall be included on the Sales Order.
1.5 Security, Provider’s access to the Services will be through user passwords and identifications. Provider is solely responsible for maintaining the security of, and for all activities occurring under, user identifications and passwords of each Designated User, and for verifying any and all information or data transmitted, stored or received by Provider in using the Services. Provider will not, and will cause each Designated User to not, lend, give, or disclose any user identifications or passwords to any unauthorized person, or permit any unauthorized person to use the Services through the use of such user identifications, passwords, or security features. Provider will not, and will cause each Designated User to not, attempt to perform any hacking, denial of service, or other malicious computer attack on Clearwave’s systems. Provider will notify Clearwave within twenty-four (24) hours of Provider becoming aware of (i) any attack on or unauthorized use of the Services or (ii) any compromise of security with respect to a user identification or password of a Designated User. Furthermore, Provider shall disable the login credentials of each Designated User that leaves Provider’s employ or otherwise ceases to be a Designated User no later than the next business day following such event. If Provider is unable to disable the login credentials, for whatever reason, then Provider must notify Clearwave of its inability to disable such individual’s login credentials within forty-eight (48) hours of Provider becoming aware of such inability.
1.6 Patient Messaging Materials, Upon request of Provider, Clearwave will supply Provider digital design templates for signage and handouts to educate Provider’s patients about the Self-Service Device and the Services. Provider may use these templates free of charge. Provider must receive permission from Clearwave if Provider wishes to use the templates in an altered format. Clearwave retains all intellectual property rights in the design templates.
1.7 Service Availability and Maintenance, Clearwave will maintain availability of the Services in accordance with the “Service Level Agreement” attached to these General Terms and incorporated by reference herein, as may be amended from time to time by Clearwave upon at least thirty (30) days’ notice to Provider.
2.1 Fees and Expenses
2.2 Invoicing and Payment
2.3 Integration, If integration is included on the Sales Order, Clearwave will work with the Provider to enable integration to Provider’s practice management or hospital information system (“Provider System”) that conforms to the integration as specified on the Sales Order (“Integration Software”). Provider shall provide Clearwave with at least thirty (30) days’ notice before changing versions, upgrading or otherwise modifying the Provider System. Provider shall provide at least ninety (90) days’ notice before migrating to a new Provider system. An “Integration Error” is a defect or error within the Integration Software such that the integration does not meet the integration specifications outlined in this Agreement. Integration Errors do not include problems caused by issues within Provider's control, including without limitation, Provider System server failure, loss of Provider’s Internet connection, or Provider's internal network configuration or the provider upgrading or otherwise changing Provider System. In the event of an Integration Error, Clearwave will use commercially reasonable efforts to resolve such Integration Error, but Provider understands that a third party's support may be necessary to resolve such Integration Error. If an Integration Error (A) is not the result of a Provider System change/migration or upgrade, or (B) (i) is a result of a Provider System upgrade and (ii) Provider has provided Clearwave at least thirty (30) days’ advance notice, then if Clearwave cannot resolve such Integration Error then all Monthly Fees incurred by Provider under this Agreement that are associated with system integration shall be suspended until the Integration Error is resolved. The preceding sentence is Provider's sole and exclusive remedy for Integration Errors. Provider represents that it has fully read the integration specifications and that the Integration Software does not violate Provider's license or other agreement to use the Provider System. Clearwave makes no representation regarding the Integration Software's effect(s) (if any) on Provider’s license or other agreement to use the Provider System.
3.1 Relationship. Each party is an independent contractor in the performance of this Agreement and will not be considered to be an agent, representative, servant, joint venture, or partner of the other, or its parent or affiliates.
3.2 Provider Covenants & Obligations.
4.1 Right to Contract. Each party hereby warrants that such party has the right and is free to enter into this Agreement and to fully perform its obligations hereunder. Each party further warrants that it has not and will not enter into any agreement or other arrangement that will conflict with in any material way its ability to fully perform its obligations under this Agreement. Provider will execute any and all documents and comply with any and all applicable procedures, rules, and regulations which Clearwave or applicable law may require for the processing and transmission of Provider data hereunder.
4.2 HIPAA, HITECH, and Other Privacy Law. Each party shall, to the extent applicable, comply with (i) the Health Insurance Portability and Accountability Act of 1996, as amended, (HIPAA), (ii) the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH), (iii) the applicable rules and regulations promulgated under HIPAA and HITECH, and (iv) any other applicable privacy law or regulation.
4.3 Infringement. Clearwave warrants that, to its knowledge that (i) it has all necessary intellectual property rights (if any) as may be necessary for the provision of the Services as contemplated herein, and (ii) the Provider Web Portal and the provision of Services do not infringe upon any intellectual property rights of any third party.
4.4 Limitations and Exclusions. Subject to Section 4.3, the Services, applications, and any information provided hereunder, and the results thereof, are provided on an AS-IS basis without warranty of any kind. CLEARWAVE MAKES NO WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, CONTENT ACCURACY, NONINFRINGEMENT, TITLE, AND QUIET ENJOYMENT, OR OTHERWISE. Without limiting the foregoing, Provider acknowledges and agrees that Clearwave does not warrant that use of the Services will be uninterrupted, accurate, complete, secure, useful, error-free, or that all errors will be corrected.
5.1 Liability Limitation. EXCEPT WITH REGARD TO CLAIMS RELATED TO HIPAA WHICH ARE SEPARATELY DESCRIBED BELOW, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF CLEARWAVE, ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, SUCCESSORS AND ASSIGNS FOR LOSS OR DAMAGES, WHETHER FOR BREACH OF THIS AGREEMENT, BREACH OF WARRANTY OR OTHERWISE WILL BE LIMITED TO THE MONTHLY FEES PAID TO CLEARWAVE BY PROVIDER IN THE 12-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO CLEARWAVE’S LIABILITY, WHETHER THE LIABILITY ARISES FROM CONTRACT, TORT, OR OTHER CLAIMS. PROVIDER ACKNOWLEDGES CLEARWAVE IS NOT AN INSURER AND THE FOREGOING LIABILITY LIMITATIONS IN THIS SECTION 5.1 ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND IN THE ABSENCE OF SUCH LIMITATIONS THE MATERIAL TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
5.2 Exclusion of Damages. CLEARWAVE WILL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND OR FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR ANY LOST PROFITS, LOST BUSINESS, LOSS OF USE OF DATA OR INTERRUPTION OF BUSINESS ARISING OUT OF ANY BREACH OF THIS AGREEMENT OR ANY SERVICES PERFORMED BY CLEARWAVE, EVEN IF CLEARWAVE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.3 Indemnification. Each party agrees to indemnify, defend and hold the other party and its affiliates and their respective employees, directors, officers and agents harmless against any claims, liability, damages, losses, fines, penalties, assessments, judgments, and other expense(s) (including but not limited to reasonable attorney’s fees and court costs) (each, a “Claim”) arising out of or resulting from any third-party claims made or proceedings brought against the other party to the extent such Claim arises in the execution or performance of this Agreement and/or results from the party’s gross negligence or willful misconduct. Each party’s obligations under this Section 5.3 shall survive the expiration or termination, for any reason, of this Agreement. To receive the indemnities set forth in this Agreement, the party requesting indemnification hereunder (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) in writing of any Claim.
The Indemnifying Party may not settle or compromise any Claim which would require the payment of money damages, or if it would otherwise have a material adverse effect on the Indemnified Party, except upon the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed, or conditioned. At the expense of the Indemnifying Party, the Indemnified Party shall promptly give such assistance and information as may reasonably be requested by Indemnifying Party to settle or oppose such Claims. Legal counsel chosen by the Indemnified Party shall be reasonably acceptable to the Indemnifying Party, and separate legal counsel for the Indemnified Party may participate in the defense of such Claim at the Indemnified Party’s expense.
5.4 HIPAA Claims Liability Limitation. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF CLEARWAVE, ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, SUCCESSORS AND ASSIGNS FOR LOSS OR DAMAGES RELATED TO ANY HIPAA CLAIMS WILL BE LIMITED TO CLEARWAVE’S APPLICABLE INSURANCE LIMITS.
6.1 Definition. “Confidential Information” of a party means all information, in any form, related to or arising from the performance of this Agreement that is disclosed by one party (the “Disclosing Party”) to the other Party (the “Receiving Party”) which is, (i) if disclosed in writing or in other tangible form, marked confidential, proprietary, or with other similar notation, (ii) if disclosed visually or in other intangible form, is identified in writing by the Disclosing Party as confidential with ten (10) business days of such disclosure, or (iii) disclosed under circumstances such that the Receiving Party should reasonably understand the information to be confidential. By way of example and without limitation, Confidential Information includes any and all information of the following or similar nature: customer lists, customers’ and suppliers’ identities and characteristics, agreements, marketing knowledge and information, sales figures, pricing information, marketing plans and business plans, strategies, forecasts, financial information, budgets, personnel information, software, research papers, projections, procedures, routines, quality control and manufacturing procedures, non-public patent applications, processes, formulas, trade secrets, innovations, inventions, discoveries, improvements, research or development test results, specifications, data, know-how, formats, plans, sketches, drawings, and models.. Without limiting the foregoing, Provider acknowledges and agrees that the Provider Web Portal, Services, each component thereof, and the software and all documentation related thereto are Confidential Information of Clearwave and/or its licensors and are subject to the protections of this Section 6.
6.2 Use of Confidential Information.
7.1 Clearwave Materials. As between Clearwave and Provider, the Provider Web Portal, Services, software and components thereof, and any copies thereof, in whole or in part, including, without limitation, translations, compilation, partial copies, modifications, updates, any images and applets, photographs, animations, images, video, audio, music and text incorporated in the Services and Self-Service Device, are the property of Clearwave. Provider has only the limited rights expressly granted by this Agreement. Clearwave reserves all rights not expressly granted hereunder. “CLEARWAVE, THE PATIENT’S CHOICE”, the graphic logo, and all other brands are either trademarks or registered trademarks of Clearwave, and the names of other companies and products mentioned herein may be the trademarks of their respective owners. All of use of Clearwave’s trademarks by Provider shall inure to the benefit Clearwave. In addition, as between Clearwave and Provider, Clearwave retains exclusive ownership of all rights, title and interest in and to software or other work product used or a derivative work of any of the foregoing. In addition, Clearwave may reuse in any way, with any third party, and without limitation, scripts, codes, routines, subroutines, and other software that are of a generic nature created in its performance of this Agreement.
7.2 Data. As between Provider and Clearwave, Provider owns all rights to any data provided solely by Provider or Provider’s patients for use in connection with the Services (the “Provider Data”). Without limiting the foregoing, Provider Data includes health information, insurance benefit information, and other personally identifiable information about Provider’s patients. The parties will execute a separate Business Associate Agreement that will define the duties and obligations of the parties regarding the use and disclosure of protected health information (“PHI”) by either party in carrying out the terms of this Agreement, the performance of the Services, and the use of and access to the Provider Web Portal. Any use and/or disclosure of PHI shall be done in accordance with such Business Associate Agreement and the requirements of Section 4.2 herein. Provider is solely responsible for any errors, inaccuracies in or incompleteness of Provider Data not solely caused by Clearwave, and for reviewing and determining the accuracy of Provider Data and information it receives through the Services.
7.3 Public Notice. Unless otherwise specified in an applicable Sales Order, Provider agrees that Clearwave may use Provider’s name to identify Provider as a user of the Services and for Clearwave marketing, promotional, and/or corporate literature. In addition, Provider agrees that Clearwave may issue a press release identifying (i) Provider as a client of Clearwave, (ii) that Provider is actively using the Services, and (iii) Provider is receiving the expected benefit from using the Services.
7.4 Automation. Neither Provider nor its agents shall employ any scripting, automation, surface integration, screen scraping, or other similar program to automate (i) the use of or (ii) interaction with the Services without Clearwave’s written consent. The Provider Web Portal is intended only for interaction with human users.
7.5 Reverse Engineering. Neither Provider nor its agents shall use the Services to reverse engineer any aspect of the Services. During this Agreement and for a period of two (2) years following termination or expiration, Provider shall not directly or indirectly develop (or hire a third party to develop) or attempt to develop a product or services that could compete with the Provider Web Portal or the Services.
8.1 Term and Termination.
8.2 Suspension. Clearwave may after notifying Provider in writing, without any liability or obligation to Provider, suspend Provider’s use of the Services if, in Clearwave’s sole discretion, Provider’s, or any of Provider’s Designated Users’, use of the Services (i) violates or may violate any applicable law or regulation, (ii) breaches any terms of this Agreement, or (iii) could damage or threaten the security of the Services or any of Clearwave’s third party vendors’, customers’, or Designated Users’ information, data, software, or hardware. If Provider resolves the breach, damage, threat, or other issue that caused the suspension to Clearwave’s satisfaction, then Clearwave will reinstate the Services to Provider. Clearwave may require Provider to comply with additional reasonable requirements – procedural, technical, or otherwise – imposed by Clearwave to ensure the security and legal compliance of Clearwave’s system.
All notices must be in writing (which includes valid electronic records under applicable law) and delivered to the following individuals and addresses:
If to Clearwave:
400 Perimeter Center Terrace NE, Suite 700
Atlanta, GA 30346-1234
Attn: Mike Lamb, CEO
If to Provider, delivery shall be to the address provided in the Sales Order.
Each party must give the other written notice if any of the address information above changes. Notice of address change will be effective upon receipt.
10.1 Force Majeure. Clearwave will not be liable for any failure or delay in performance to the extent caused by any event beyond its reasonable control, including, without limitation, an act of God; flood; riot; fire; explosion; judicial or governmental act; act of terrorism; military act; strike or lockout; third party act or omission; failure of utility or telecommunications facilities; virus, worm, trojan horse or other code, command, file or program designed to interrupt, destroy or limit the functionality of any software, hardware or equipment; Internet slowdown or failure; lightning or other weather condition or event.
10.2 Entire Agreement; Amendment; Conflicts. This Agreement (which includes any Sales Orders, Self-Service Device Addendum, or any other exhibit, schedule, or attachment, all of which are hereby incorporated in this Agreement by reference) constitutes the entire agreement between the parties and supersedes any and all other prior and contemporaneous agreements, understandings, covenants, promises, warranties and representations, oral or written, express or implied between the parties. Neither the course of conduct between the parties nor trade usage shall act to modify or alter the provisions of this Agreement. In the event Provider issues a purchase order, memorandum, or instrument covering the Services herein provided, it is hereby specifically agreed and understood that such purchase order, memorandum, or instrument is for Provider's internal purposes only, and any and all terms and conditions contained therein, whether printed or written, shall be of no force or effect. This Agreement may only be amended by a writing signed by duly authorized representatives of by each party. If a conflict arises between the terms herein and the Sales Order, then the Sales Order shall control.
10.3 Attorney’s Fees. Should Clearwave prevail in a legal proceeding against Provider in a dispute that relates to or arises out of this Agreement, Provider agrees to pay Clearwave’s costs and expenses incurred in the proceeding, including, without limitation, Clearwave’s reasonable attorneys’ fees and costs and collection costs. Should Provider prevail in a legal proceeding against Clearwave in a dispute that relates to or arises out of this Agreement, Clearwave agrees to pay Provider’s costs and expenses incurred in the proceeding, including, without limitation, Provider’s reasonable attorneys’ fees.
10.4 Assignment of Agreement. Provider may only assign, transfer or convey (whether by contract, merger, or operation of law) the Agreement by a written amendment executed by Clearwave, Provider and the proposed assignee entity. Any assignment, transfer, or conveyance in violation hereof shall be of no power or effect.
10.5 Governing Law. This Agreement shall be construed, and the rights and obligations of the parties shall be determined, in accordance with the substantive law of the State of Delaware, without giving effect to conflicts of law provisions. Any actions, claims or disputes brought by either party based on the obligations of either party under this Agreement shall be brought in a court of competent jurisdiction within Delaware. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties hereto.
10.6 Headings. The section headings of this Agreement are for the convenience of the parties only and in no way alter, modify, amend, limit, or restrict the contractual obligations of the parties.
10.7 Severability; Waiver. The invalidity or unenforceability of any provision of this Agreement will not affect the validity of enforceability of any other provision of this Agreement. Any waiver by a party to declare a breach or seek any remedy available to it under this Agreement or by law must be in writing and signed by an authorized representative of such party and will not constitute a waiver as to any past or future breaches or remedies.
10.8 No Third-Party Beneficiaries. Except as herein expressly provided to the contrary, the provisions of the Agreement are for the benefit of the parties hereto solely, and not for the benefit of any other person, persons, or legal entities.
10.9 Self-Service Device Ownership. Clearwave shall own all Self-Service Devices provided to Provider under an applicable Sales Order. Provider’s sole remedy as to non-working or non-functional Self-Service Devices provided by Clearwave is to request Clearwave to supply functional devices to perform the Services which Clearwave shall provide on a commercially reasonable basis to allow Provider to continue to enjoy the Services.
10.10 Third-Party Software. The Services may include third party software, including without limitation, anti-virus and operating system software. Clearwave shall ensure that all such third-party software is properly licensed for Provider’s use. Provider agrees that (i) its possession of Self-Service Device(s) with any such third party software does not transfer any title or ownership of the third party software to Provider, (ii) Provider will not decompile, reverse engineer, sell, loan, copy, duplicate, or export to another country any third party software on Self-Service Device(s) or within the Clearwave Provider Web Portal without the express permission of Clearwave and the owner of the applicable software, (iii) PROVIDER WAIVES ALL CLAIMS AT LAW OR EQUITY, INCLUDING WARRANTY CLAIMS, AGAINST ANY OWNERS OR VENDORS OF THIRD PARTY SOFTWARE THAT IS INCLUDED IN THE SERVICES. The preceding waiver does not waive claims against Clearwave directly that are otherwise expressly permitted in this Agreement.
10.11 Sales Orders. Each Sales Order entered into by Provider and Clearwave under this Agreement hereby incorporates the terms and conditions set forth herein and will constitute separate contracts between the parties. A breach or default of one Sales Order will not constitute a breach of any other Sales Order. If a conflict arises between the terms herein and any Sales Order, the terms of this Agreement shall prevail unless expressly amended in such Sales Order. Any such amendment will not constitute an amendment to the terms and conditions of this Agreement with respect to any other Sales Order.
ClearWave General Terms & Conditions - Effective Date: December, 2019