Clearwave General Terms & Conditions

(the “General Terms”)

v.1.14

Upon Provider’s execution of an applicable Sales Order, these General Terms, combined with the terms of the Sales Order, any Amendment(s), and/or any Statement(s) of Work (“SOW”) (collectively, the “Agreement(s)”), form a binding contract between Provider and Clearwave Corporation (“Clearwave”) with respect to any and all services performed by Clearwave for Provider or its Affiliate Entities (as defined herein) pursuant to such terms. Any Agreement(s) entered into between Clearwave and Provider shall be subject to these General Terms. Provider and Clearwave are referred to herein individually as a “Party” and collectively, as the “Parties”.

Clearwave may notify Provider of any new versions or updates to the General Terms via email. Such notifications shall be sent to the Provider’s contact email address listed on the Agreement(s). The Provider acknowledges that it is their responsibility to regularly check their email for these notifications and to review and comply with any updated General Terms provided by Clearwave. This provision ensures that the Provider will receive timely notifications of any changes to the General Terms through email communication. Any mutually agreed-upon amendments to the General Terms and Conditions will take precedence over Clearwave's newly published versions of the General Terms and Conditions.

1. CLEARWAVE SERVICES DESCRIPTIONS.

Clearwave may offer all or any combination of the services (“Services”) listed in Attachment A pursuant to one or more Agreements(s). Clearwave reserves the right, upon notice to Provider, to make changes to the Services description(s) from time to time to reflect modifications, updates, and/or improvements to the Services.

2. USE OF THE SERVICES

2.1  Implementation and Use.  Clearwave shall make available to Provider its proprietary hosted application software to provide the foregoing Services through the use of a web portal (the “Provider Web Portal”) and network usable by various Self-Service Devices (as further described herein and in Attachment C).

• • A) 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. Provider is also responsible 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 will provide at least thirty (30) 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.
  • B) Clearwave will furnish a list of federal, state, and commercial third-party health care payors (collectively referred to herein as “Payors”) to Provider upon request. This list is subject to change from time to time. Provider may be required to create a login and password for Clearwave to provide Clearwave access to the website(s) of certain Payors (e.g., Medicaid, Tricare, AARP, EyeMed, etc.) and maintain those passwords in order for the Services to function properly (hereafter referred to as “Enhanced Connection”). Provider acknowledges that the use of any type of program or system intended to distinguish human from machine input (e.g., Captcha software) by a Payor 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.

2.2  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 Agreement(s) with respect to implementation and training. Unless otherwise specified on an applicable Agreement(s), all integration and training services will be performed remotely and shall be performed by Clearwave on a commercially reasonable basis. Provider must provide Clearwave unattended remote access to Provider’s servers and systems with appropriate privileges to build and support such integration.

2.3  Access and Use.  Subject to Provider’s compliance with this Agreement, Clearwave hereby grants Provider access to the Provider Web Portal. Provider may use the Provider Web Portal at each location designated on the Agreement (s). 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.

• • A) Designated Users. 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 hereby acknowledges and expressly agrees that only Provider’s employees or other authorized representatives situated in the United States are permitted to serve as Designated Users. 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 be fully responsible for all acts or omissions of its Designated Users under this Agreement.
  • B) Affiliate Entities. Clearwave may also allow, pursuant to An Agreement(s), access and use of the Services by one or more of Provider’s affiliated company(ies) (“Affiliate Entities”). Provider hereby acknowledges and expressly agrees that only those Affiliate Entities, and their respective employees or other authorized representatives, situated in the United States shall be permitted to access and use the Services. Such Affiliate Entities shall be entitled to the same rights and subject to the same obligations as set forth herein applicable to Provider’s access to and use of the Services and Self-Service Devices. Clearwave reserves the right to enforce this Agreement against any Affiliate Entity that is provided access to the Services and/or Self-Service Devices as if such Affiliate Entity had entered into the Agreement(s) directly with Clearwave. 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 the Agreement(s).
  • C) Patients. To access and use the Services, Provider’s patients may access the Clearwave network via a Self-Service Device either as a hardware device supplied by Provider, or which may be sold or leased to Provider pursuant to the terms of the Agreement(s), or a patient’s own Self-Service Device, each as may be described in the Self-Service Device Addendum (Attachment C) as may be amended by Clearwave from time to time. All access to and use of the Services by Provider’s patients will include and require use of MFA (as defined above and further described below) to protect the security and confidentiality of Provider Data (as defined herein) and Personal Data (as defined herein).

2.4  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: (a) any attack on or unauthorized use of the Services; and/or (b) 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. Clearwave shall have in place appropriate and commercially-reasonable identity verification systems and access controls that limit access to systems containing Personal Data (as defined below). For purposes of this Agreement, such identity verification systems and access controls shall mean the implementation and required use of MFA in order for Provider patients to access and use the Services that allow or require entry of and/or access to any personal identifying information (including any “protected health information” (as defined in 45 C.F.R. § 160.103)) and other sensitive personal information of or concerning Provider and/or Provider’s patients (collectively, “Personal Data”). In the event that Provider chooses not to implement and use MFA for access to Personal Data, Provider shall enter into a separate written agreement with Clearwave that sets forth Provider’s acknowledgement and assumption of risk, release, waiver of liability, and indemnity with respect to Provider’s election to opt-out of the implementation and required use of MFA.

2.5  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 digital design templates free of charge. Any use of the digital design templates by Provider, whether or not altered by Provider, shall be subject to Section 5.5 and Section 5.6 of this Agreement. Clearwave retains all intellectual property rights in the digital design templates.

2.6  Service Availability and Maintenance.  Clearwave will maintain availability of the Services in accordance with the terms and conditions set forth in the Service Level Agreement, attached to these General Terms as Attachment B, as amended from time to time by Clearwave upon written notice to Provider.

3. FEES AND PAYMENT.

3.1  Fees and Expenses.

• • A) Fees. Clearwave will invoice Provider for the monthly fees, and reasonable expenses attributable to the Services furnished to Provider under an applicable Agreement(s) (“Monthly Fees”). The Monthly Fees and applicable expenses are set forth on the Agreement(s). Provider shall also be responsible for any taxes that apply to Provider related to access and use of the Services and any Self-Service Device(s) except for taxes that relate to Clearwave’s net income or employment taxes. If Provider is a tax-exempt, non-profit entity, then such tax-exempt Provider will be responsible for providing the required documentation to Clearwave necessary for Clearwave to verify Provider’s tax-exempt status in accordance with applicable federal and state laws.
  • B) Implementation, Integration and Training. Integration and Training services are included only if specifically identified on an Agreement(s). Clearwave will invoice Provider for any integration and training services at the rates set forth on the Agreement(s).
  • C) Reconciliations. Clearwave expressly reserves the right, in its sole discretion, to reconcile, as applicable: (a) the Assumed Billing Units for the first year of the Term; or (b) the Actual Billing Units, with the total number of Billing Units (as defined below) completed during the immediately preceding year of the Term (“Prior Year Billing Units”) and to adjust the Monthly Services Fees accordingly. If Clearwave determines that the Prior Year Billing Units were higher than the: (i) Assumed Billing Units; or (ii) Actual Billing Units, as applicable, used to calculate the Monthly Services Fees for the immediately preceding year of the Term, then Clearwave will adjust the Monthly Services Fees up for the immediately following year of the Term to account for such Prior Year Billing Units. Such reconciliation, and any related, prospective adjustment to the Monthly Services Fees for the immediately following year of the Term, shall be completed by Clearwave no later than thirty (30) days’ after each anniversary of the Effective Date (i.e., within thirty (30) days’ after the last day of immediately preceding year of the Term) and evidenced in a writing signed by both Provider and Clearwave.
    • Billing Units refer to Patient Encounter, Providers, Text Messages and Interactive Voice Message":
      1. 1. For purposes of calculating the Monthly Services Fees, the term “Patient Encounter” shall mean each instance that a patient receives services from Provider, whether or not such patient has a scheduled appointment with Provider or obtains Provider’s services as a “walk-in” patient, and regardless of how the patient is checked-in for their visit––whether through a Self-Service Device, Provider Web Portal, or Provider’s practice management system.
         2. For purposes of calculating the Monthly Services Fees, the term “Number of Providers” shall mean each Physician, Physician Assistant (PA), and Nurse Practitioner (NP) or other advanced practice nurse, that renders services to patients of Provider and is listed in Provider’s practice management system.
         3. For purposes of calculating the Monthly Services Fees, One (1) “Text Message” may include up to one hundred sixty (160) characters. If a text message exceeds one hundred sixty (160) characters, it will count as two (2) or more text messages based upon the number of characters for purposes of calculating Provider’s cumulative text message usage for the calendar year.
         4. For purposes of calculating the Monthly Services Fees, “One (1) “Interactive Voice Message” is equivalent to an interactive voice message with a duration of sixty (60) seconds or less.  If an interactive voice message exceeds sixty (60) seconds, it will count as two (2) or more interactive voice messages for purposes of calculating Provider’s cumulative interactive voice message usage for the calendar year.
  • D) Shipping & Handling Costs: The Purchase and Implementation Fee does not include the reasonable shipping & handling costs for Kiosks. Kiosk shipping & handling costs vary based upon the number of Kiosks shipped, the number of Provider locations receiving Kiosks, and the shipping address for Kiosk delivery.
  • E) Travel Expenses: Reasonable travel expenses for on-site training / support are not included in any one-time fees. Reasonable travel expenses will be invoiced as incurred and due to Clearwave upon receipt of invoice by Provider. Provider shall be responsible for informing Clearwave of any applicable travel or vendor expense guidelines or policies.

3.2  Invoicing and Payment.

• • A) Recurring Invoices. Clearwave will invoice Provider in advance every quarter for the Monthly Fees. These invoices shall be due and payable by Provider NET 15 of the date of invoice.
  • B) Monthly Fee Increases. The Monthly Fees set forth on the Agreement(s) may increase each calendar year or upon each Renewal Term, at Clearwave’s discretion, as set forth on an applicable Agreement.
  • C) Amounts Past Due. Provider will pay interest on all amounts not paid when due at a rate of one and a half percent (1.5%) per month from the due date of such amounts until such amounts are fully paid, or such lower rate as may be the maximum rate permitted by applicable law
  • D) Method of Payments. Clearwave accepts the following payment methods; however, the following list is not exclusive and Clearwave may accept additional forms of payment upon request by Provider if agreed in writing by Clearwave:
    1. Preferred Method: Clearwave-Initiated ACH withdrawal. Provider shall complete and furnish to Clearwave an ACH authorization form for withdrawal and payment of all Fees.
    2. Provider-Initiated ACH Withdrawal. Provider shall complete and furnish to Clearwave an ACH authorization form for withdrawal and payment of all Fees.
    3. Credit/Debit Card Charge. Unless restricted by applicable law, Clearwave will charge a three percent (3.0%) fee to cover the credit card processing fees and other processing fees assessed to Clearwave. Provider shall complete and submit a Credit Card Authorization Form to Clearwave.

3.3  Integration.  If integration is included on the Agreement(s), Clearwave will work with Provider to enable integration to Provider’s practice management or hospital information system (“Provider System”) that conforms to the integration as specified on the Agreement(s) (“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 give at least ninety (90) days’ prior written notice to Clearwave before migrating to a new Provider System. The Parties will create a transition plan, timeline, and agree to any one-time fees to move to the 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 the Agreement(s). 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, Provider's internal network configuration, or Provider upgrading or otherwise changing the 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 is: (a) not the result of a Provider System change/migration or upgrade; or (b) (i) a result of a Provider System upgrade, and (ii) Provider has given at least thirty (30) days’ advance notice to Clearwave, and if Clearwave cannot resolve such Integration Error, then all Monthly Fees incurred by Provider under this Agreement that are associated with Provider 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.

4. RELATIONSHIP AND OBLIGATIONS OF THE PARTIES.

4.1  Relationship. Each Party is an independent contractor in the performance of the Agreement(s) and will not be considered to be an agent, representative, servant, joint venture, or partner of the other Party or such’s Party’s parent or affiliates.

4.2  Provider Covenants & Obligations. In addition to the other representations, warranties, and covenants of Provider contained in the Agreement(s), Provider hereby expressly:

• • A) covenants that Provider will use the Services only in accordance with (i) applicable laws, regulations, and rulings, now or hereafter imposed, and (ii) the conditions of use which may be established or specified by Clearwave from time to time, as may be set forth in any manuals, materials, documents, or instructions furnished by Clearwave to Provider (electronically or otherwise);
  • B) represents and warrants that (i) Provider has all requisite rights to Provider Data (as defined herein) and other information uploaded as part of the access and use of the Services;
  • C) agrees that all information submitted to Clearwave shall be true and accurate in all respects. Provider will communicate changes and/or updates to Clearwave as soon as practicable when such information changes. Without limiting the foregoing, Provider’s failure (i) to maintain current passwords required to connect to insurance payor databases and/or (ii) to provide Clearwave updated and current passwords and registration information for access to payer databases may cause Clearwave to incur additional charges from Clearwave’s partners or clearing houses. In the event that Clearwave incurs any such additional charges, Clearwave may require Provider to reimburse Clearwave for all such charges and Provider agrees to pay any and all such charges; and
  • D) covenants that Provider shall cooperate and coordinate with Clearwave in the implementation, training and maintenance of the Services

Without limiting the foregoing, Clearwave reserves the right to take all actions, including termination or suspension of Services pursuant to the Agreement(s), which it believes to be necessary to comply with applicable laws, regulations, rulings, and the Clearwave conditions of use as described above.

5. REPRESENTATIONS AND WARRANTIES.

5.1  Right to Contract. Each Party hereby warrants that such Party has the right and is free to enter into the Agreement(s) 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 the Agreement(s). 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.

5.2  HIPAA, HITECH and Other Privacy Law.  Each Party shall, to the extent applicable, comply with (a) the Health Insurance Portability and Accountability Act of 1996, as amended, (“HIPAA”), (b) the Health Information Technology for Economic and Clinical Health Act of 2009 (“HITECH”), (c) the applicable rules and regulations promulgated under HIPAA and HITECH, each as amended, and (d) any other applicable privacy law or regulation. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

5.3  Clearwave Warranty.  Clearwave warrants that, (a) it has all necessary intellectual property rights (if any) as may be necessary for the provision of the Services as contemplated herein, (b) the Provider Web Portal and the provision of Services do not infringe upon any intellectual property rights of any third party; and (c) that the Provider Web Portal and the provisions of Services shall be performed in a workmanlike manner and shall conform to any documentations and specifications provided that describe the features and functionality of the Services. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

5.4  Limitations and Exclusions.  Subject to Section 5.3, 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 access to and use of the Services will be uninterrupted, accurate, complete, secure, useful, error-free, or that all errors will be corrected. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

5.5  No Monitoring of Posted Information.  CLEARWAVE DOES NOT MONITOR, VERIFY OR ASCERTAIN THE ACCURACY OR LEGALITY OF ANY INFORMATION POSTED BY PROVIDER OR ANY OF PROVIDER’S AFFILIATE ENTITIES, DESIGNATED USERS, AND/OR PATIENTS ACCESSING THE CLEARWAVE SERVICES (INCLUDING DATA POSTED BY PROVIDER’S AFFILIATE ENTITIES, DESIGNATED USERS, AND/OR PATIENTS) AND SHALL NOT HAVE ANY LIABILITY FOR ACCURACY OR LEGALITY OF SUCH INFORMATION. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

5.6  No Monitoring of Provider Communications.  CLEARWAVE DOES NOT MONITOR, VERIFY, OR ASCERTAIN THE ACCURACY OR LEGALITY OF ANY COMMUNICATIONS, WHETHER ORAL (INCLUDING IN-PERSON AND/OR TELEPHONIC COMMUNICATIONS) OR WRITTEN (INCLUDING TEXT MESSAGING, EMAIL, AND/OR OTHER ELECTRONIC MESSAGES)  BETWEEN PROVIDER (INCLUDING COMMUNICATIONS BY OR FROM PROVIDER’S AFFILIATE ENTITIES AND/OR DESIGNATED USERS) AND PROVIDER’S PATIENTS ACCESSING THE SERVICES. CLEARWAVE MAKES NO WARRANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL WARRANTIES AS TO THE ACCURACY OR LEGALITY OF ANY SUCH PROVIDER COMMUNICATIONS AND/OR ANY INFORMATION INCLUDED THEREIN. CLEARWAVE SHALL NOT BE RESPONSIBLE, NOR HAVE ANY LIABILITY, FOR THE ACCURACY OR LEGALITY OF ANY SUCH COMMUNICATIONS AND/OR ANY INFORMATION INCLUDED IN ANY COMMUNICATIONS BETWEEN PROVIDER (INCLUDING COMMUNICATIONS BY OR FROM PROVIDER’S AFFILIATE ENTITIES AND/OR DESIGNATED USERS) AND PROVIDER’S PATIENTS. Without limiting the foregoing, Provider expressly acknowledges and agrees that Provider shall be solely responsible for obtaining any and all consents and authorizations from its patients required by law with respect to any communications between Provider (including communications by or from Provider’s Affiliate Entities and/or Designated Users) and its patients accessing the Services and for ensuring that any and all information included in such Provider communications complies with all applicable laws. Provider hereby represents and warrants to Clearwave that Provider shall obtain and maintain any and all such required patient authorizations and consents and that any and all such communications between Provider (including communications by or from Provider’s Affiliate Entities and/or Designated Users) and Provider’s patients shall comply with applicable law. Clearwave reserves the right to suspend or terminate Provider’s access to the Services in the event of Provider’s non-compliance with this Section. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

5.7  No Medical Treatment.  THE INFORMATION PRESENTED BY CLEARWAVE THROUGH THE SERVICES IS NOT MEDICAL ADVICE AND DOES NOT SUBSTITUTE PROFESSIONAL MEDICAL JUDGMENT AND/OR TREATMENT. SUCH INFORMATION IS NOT INTENDED AND MUST NOT REPLACE EXPERT MEDICAL OPINIONS FROM CAPABLE MEDICAL EXPERTS. PROVIDER (INCLUDING ITS AFFILIATE ENTITIES AND DESIGNATED USERS) AND PATIENTS ALONE SHALL BE RESPONSIBLE FOR: (A) ANY RELIANCE BY ANY OF THEM BASED, DIRECTLY OR INDIRECTLY, ON THE SERVICES AND/OR THE HEALTH-RELATED INFORMATION FURNISHED BY PROVIDER, ITS AFFILIATE ENTITIES AND/OR DESIGNATED USERS; AND (B) ANY DECISIONS, ACTIONS AND/OR THE AVOIDANCE OF TAKING ACTIONS THAT DERIVES IN ANY WAY FROM ACCESS TO AND/OR USE OF THE SERVICES AND/OR THE INFORMATION PROVIDED THEREBY OR THE CONTENTS THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY DECISION NOT TO SEEK OR TO ABSTAIN FROM SEEKING EXPERT MEDICAL TREATMENT OR OPINION. This provision shall survive the expiration or termination, for any reason, of this Agreement.

6. LIMITATION OF LIABILITY.

6.1  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 AND ITS AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, SUCCESSORS AND ASSIGNS, OR ANY OF THEM, 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 TWELVE (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 6.1 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. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

6.2  Exclusion of Damages.  CLEARWAVE WILL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER 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. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

6.3  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 the Agreement(s) and/or results from such Party’s gross negligence or willful misconduct. To receive the indemnities set forth in the Agreement(s), the Party requesting indemnification hereunder (the “Indemnified Party”) shall promptly notify the other Party hereto (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. The obligations of each Party under this Section shall survive the expiration or termination, for any reason, of the Agreement(s).

6.4  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. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

7. CONFIDENTIALITY.

7.1  Definition.  “Confidential Information” of a Party means all information, in any form, related to or arising from the performance of the Agreement(s) that is disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) which is, (a) if disclosed in writing or in other tangible form, marked confidential, proprietary or with other similar notation, (b) 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 (c) 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 7.

7.2  Use of Confidential Information.

• • A) The Receiving Party may use the Disclosing Party’s Confidential Information solely for the purposes contemplated in the Agreement(s) or otherwise agreed by the Disclosing Party in writing, and the Receiving Party will only disclose the Disclosing Party’s Confidential Information to the Receiving Party’s employees, contractors, or other representatives, who have a legitimate need-to-know and are bound by contract or other legally-enforceable obligation to maintain the confidentiality of such Confidential Information consistent with the requirements of the Agreement(s). The Receiving Party will use the same means to protect the Disclosing Party’s Confidential Information as it uses to protect its own information of a similar nature from unauthorized use or disclosure, but in no case shall the Receiving Party use less than reasonable means to do so. For Confidential Information that is a trade secret under applicable law, and such has been identified to the Receiving Party, the Receiving Party’s obligations under this Section 7 will continue after the Agreement(s) is/are terminated or until such information no longer is a trade secret under applicable law, and for all other Confidential Information, such obligations will survive the termination of the Agreement(s). The confidentiality obligations of this Section 7 will not apply to any information that is (i) independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information, (ii) lawfully provided to the Receiving Party by a third party without restriction on use or disclosure, or (iii) becomes generally known to the public through no breach of the Agreement(s) by the Receiving Party.
  • B) The Receiving Party may disclose the Disclosing Party’s Confidential Information if and only to the extent such disclosure is legally required pursuant to the order of a court or government authority of competent jurisdiction, provided that the Receiving Party, to the extent legally permitted, shall provide the Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure, and shall reasonably cooperate with the Disclosing Party, at the Disclosing Party’s sole expense, in seeking an appropriate protective order to limit the scope of such disclosure.
  • C) Notwithstanding any other provisions of the Agreement(s), Clearwave may use Confidential Information that Clearwave obtains from Provider that is necessary for Clearwave to provide the Services. In addition, Provider acknowledges that Clearwave may disclose and/or transfer Provider’s Confidential Information and Clearwave’s rights thereto to a third party in connection with an assignment or transfer of the Agreement(s) or delegation of hosting or other duties. Provider hereby waives any claim to any compensation for such use of such Confidential Information. In addition, Provider acknowledges and agrees that Clearwave may disclose or transfer Confidential Information pertaining to Provider, its employees or customer and the Agreement(s) to the Secretary of the U.S. Department of Health and Human Services, the U.S. Comptroller General, or any other governmental or regulatory body and their duly authorized representatives, upon an audit or other inspection by any of the same of the records or facilities of Clearwave. Any and all uses of Confidential Information, including any PHI (as defined below), will comply with all applicable state and federal privacy laws.

7.3  Survival.  This Section 7 shall survive the expiration or termination, for any reason, of the Agreement(s).

8. INTELLECTUAL PROPERTY.

8.1  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/or text incorporated in the Services and Self-Service Device, are the property of Clearwave. Provider has only the limited rights expressly granted by the Agreement(s). 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 use of Clearwave’s trademarks by Provider shall inure to the benefit of 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 inherent in the Services, as may be described in any Agreement(s). 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. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

8.2  Provider 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 HIPAA business associate agreement (“BAA”) 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 the Agreement(s), 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 BAA and the requirements of Section 5.2 herein. Provider is solely responsible for any errors, inaccuracies 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.

8.3  Public Notice.  Unless otherwise specified in an applicable Agreement(s), 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 (a) Provider as a client of Clearwave, (b) that Provider is actively using the Services, and (c) Provider is receiving the expected benefit from using the Services.

8.4  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. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

8.5  Reverse Engineering.  Neither Provider nor its agents shall use the Services to reverse-engineer any aspect of the Services. During the Agreement(s) 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. This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

9. TERMINATION & SUSPENSION.

9.1  Term and Termination.

• • A) The term of the Agreement(s) shall commence on the date provided in the applicable Agreement and continue until the expiration date provided in the applicable Agreement, unless terminated earlier as provided in these General Terms the (“Initial Term”). Unless otherwise stated on an applicable Agreement, the Agreement(s) shall automatically renew for consecutive one (1) year periods (each a “Renewal Term”) unless either Party provides at least sixty (60) days’ written notice to the other Party prior to the expiration of the Initial Term or then-current Renewal Term of such Party’s intent not to renew the Sales Order. The Initial Term and each Renewal Term are collectively referred to herein from time-to-time as the “Term”.
  • B) Upon expiration or termination of the Agreement(s), Provider will immediately pay to Clearwave any and all accrued Monthly Fees, reasonable expenses and any and all other outstanding fees (e.,outstanding balances owed to Clearwave for the lease of Kiosk(s), and any outstanding fees including but not limited to fees and expenses for the Services, reimbursable travel expenses, etc.) with respect to the Agreement(s). Except as otherwise set forth in this Agreement, each Party will promptly return to the other all data, materials, hardware, and other property of the other Party in its possession or reasonable control.
  • C) Following termination or expiration of the Agreement(s), Clearwave will remove Provider’s Patient Data from the Clearwave database and Clearwave will do so within thirty (30) days after the Termination Date in accordance with HIPAA and the terms of the BAA between Clearwave and Provider.
  • D) Either Party may terminate the Agreement(s) if there is a material breach by the other Party of a term of the Agreement(s), other than failure to timely pay amounts due, which breach, if curable, has not been cured to the reasonable satisfaction of the terminating Party within sixty (60) days after written notice is provided by the terminating Party to the breaching Party, which notice specifies such breach in reasonable particularity.
    • Termination Notice: In the event that the Provider wishes to terminate this Agreement, as outlined above, they shall provide written notice of their intent to terminate by emailing Support@clearwaveinc.com.
  • E) Except as described under Section 6 herein, in no event shall Clearwave be required to pay, or Provider be entitled to, a refund of any fees, costs, or other amounts paid by Provider to Clearwave under the Agreement(s). This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

9.2  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 Designated Users’ or Affiliate Entities’, use of the Services (a) violates or may violate any applicable law or regulation, (b) breaches any terms of the Agreement(s), or (c) could damage or threaten the security of the Services or any of Clearwave’s third-party vendors’ or customers’ 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 Provider’s access to and use of the Services. Clearwave may require Provider to comply with additional reasonable requirements––procedural, technical, administrative, or otherwise––imposed by Clearwave to ensure the security and legal compliance of Clearwave’s system and the Services.

10. NOTICES.

All notices and other communications under the Agreement(s) must be in writing (which includes valid electronic records under applicable law) and delivered to the recipient’s address set forth below. Such notice will be deemed to have been duly given (a) when received, if personally delivered; (b) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and (d) upon receipt, if sent by certified or registered mail, return receipt requested:

If to Clearwave:

400 Perimeter Center Terrace NE, Suite 700
Atlanta, GA 30346-1234
Attn: Mike Lamb, CEO
Phone: 678-738-1120

Email: support@clearwaveinc.com

If to Provider: Notices shall be delivered to Provider’s address set forth 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 by the other Party.

11. MISCELLANEOUS.

11.1  Force Majeure.  Clearwave will not be liable for any failure or delay in performance to the extent caused, in whole or in part, by any event beyond its reasonable control, including, without limitation, an Act of God, severe natural conditions such as landslide, lightning, earthquake, flood, hurricane, blizzard, tornado or other severe weather conditions, fire or explosion, an act of public enemy, terrorism, war, civil disturbance, riot, government order or action, court order, labor dispute (including strike and/or lockout), outbreak or pandemic, 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 the Services, any software, hardware, or equipment, Internet slowdown or failure, or any other cause beyond Clearwave’s reasonable control (each, a “Force Majeure Event”).

11.2  Entire Agreement; Amendment; Conflicts.  The Agreement(s), the attached Service Level Agreement (Attachment B) and Self-Service Device Addendum (Attachment C), and any other exhibit, schedule or attachment hereto, all of which are hereby incorporated herein and made an integral part of the Agreement(s) by this 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 the Agreement(s). In the event Provider issues a purchase order, memorandum, or instrument covering the Services herein provided, it is hereby specifically acknowledged and agreed by the Parties 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. The Agreement(s) may only be amended by a writing signed by duly authorized representatives of each Party. If a conflict arises between the terms herein and the Agreement(s), then these General Terms shall govern and control unless expressly modified in the Agreement(s) executed by authorized representatives of both Parties.

11.3  Attorney’s Fees.  Should Clearwave prevail in a legal proceeding against Provider in a dispute that relates to or arises out of the Agreement(s), Provider agrees to pay Clearwave’s costs and expenses incurred in the proceeding, including, without limitation, Clearwave’s reasonable attorneys’ fees and costs, expert witness 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 the Agreement(s), Clearwave agrees to reimburse Provider for the reasonable, direct costs and expenses incurred by Provider as a result of the proceeding, including, without limitation, Provider’s reasonable attorneys’ fees.

11.4  Assignment of Agreement.  Provider may only assign, transfer or convey (whether by contract, merger or operation of law) the Agreement(s) by a written amendment executed by Clearwave, Provider, and the proposed assignee entity. Notwithstanding the foregoing, Clearwave may assign its rights and interests, or delegate its duties and obligations, under the Agreement(s), in whole or in part, to an affiliate or successor in interest so long as any such assignment or delegation will not have a material impact upon the rights, duties, and obligations of Provider hereunder. Any assignment, transfer or conveyance in violation hereof shall be null and void, and of no power or effect.

11.5  Governing Law; Venue.  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 situated in Fulton County, Georgia. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to the Agreement(s) or the Parties.

11.6  Headings.  The section headings of these General Terms are for the convenience of the Parties only, and in no way alter, modify, amend, limit or restrict the contractual obligations of the Parties.

11.7  Severability; Waiver.  The invalidity or unenforceability of any provision of the Agreement(s) will not affect the validity of enforceability of any other provision of the Agreement(s). If any portion(s) of the Agreement(s) shall be, for any reason, invalid or unenforceable, the remaining portion(s) shall nevertheless be valid, enforceable, and carried into effect, unless to do so would be inconsistent with the intentions of the Parties. Any waiver by a Party of the provisions of the Agreement(s), including any waiver to declare a breach or seek any remedy available to a Party under the Agreement(s) or by law, will not constitute a waiver of any other provision, whether or not similar, including as to any past or future breaches or remedies, nor shall any waiver constitute a continuing waiver by a Party. Any waiver by a Party must be in writing and signed by an authorized representative of such waiving Party.

11.8  No Third-Party Beneficiaries.  Except as herein expressly provided to the contrary, the provisions of the Agreement(s) are solely for the benefit of the Parties, and not for the benefit of any other person, persons, or legal entities.

11.9  Self-Service Device Ownership.

• • A) Clearwave shall own all Self-Service Devices furnished to Provider by Clearwave under an applicable Agreement. Provider’s sole remedy as to non-working or non-functional Self-Service Devices provided by Clearwave hereunder is to submit a written request to Clearwave for functional devices as needed for Provider, its Affiliate Entities (if any), Designated Users, and patients to access and use the Services, which Clearwave shall provide on a commercially reasonable basis to allow continued access to and use of the Services.
  • B) Provider shall locate the Kiosk(s) in reasonable and secure locations and with reasonably good visibility and exposure to foot traffic within the Location(s). Provider shall take all commercially reasonable measures to prevent loss or damage to the Kiosk(s) while the Kiosk(s) are located at the Location(s). If a Kiosk is relocated to another Location(s), PROVIDER IS RESPONSIBLE FOR MOVING KIOSK(S) AND ASSUMES ALL LIABILITY IF THE KIOSKS ARE DAMAGED DURING SUCH MOVING PROCESS.
  • C) Upon expiration or termination of this Agreement, Provider shall return all Self-Service Devices furnished by Clearwave in Provider’s possession and/or reasonable control in accordance with Section 9.1.

11.10  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 (a) 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, (b) 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 Provider Web Portal without the express permission of Clearwave and the owner of the applicable software, (c) 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 the Agreement(s). This provision shall survive the expiration or termination, for any reason, of the Agreement(s).

Version	Effective Date
Clearwave General Terms & Conditions v1.0	January 1, 2020 to April 28, 2020
Clearwave General Terms & Conditions v1.1	April 29, 2020 to July 16, 2020
Clearwave General Terms & Conditions v1.2	July 17, 2020 to October 20, 2020
Clearwave General Terms & Conditions v1.3	October 21, 2020 to January 31, 2021
Clearwave General Terms & Conditions v1.4	February 1, 2021 to December 31, 2021
Clearwave General Terms & Conditions v1.5	January 1, 2022 to February 28, 2022
Clearwave General Terms & Conditions v1.6	March 1, 2022 to March 31, 2022
Clearwave General Terms & Conditions v1.7	April 1, 2022 to April 30, 2022
Clearwave General Terms & Conditions v1.8	May 1, 2022 to August 12, 2022
Clearwave General Terms & Conditions v1.9	August 13, 2022 to October 5, 2022
Clearwave General Terms & Conditions v1.10	October 6, 2022 to November 30, 2022
Clearwave General Terms & Conditions v1.11	December 1, 2022 to February 10, 2023
Clearwave General Terms & Conditions v1.12	February 11, 2023 to April 30, 2023
Clearwave General Terms & Conditions v1.13	May 1, 2023 to November 5, 2023
Clearwave General Terms & Conditions v1.14	November 6, 2023, to Present

 

Attachments:

• • Attachment A: Clearwave Services Descriptions
  • Attachment B: Service Level Agreement
  • Attachment C: Self-Service Device Addendum

Attachment A: CLEARWAVE SERVICES DESCRIPTIONS

Clearwave may offer all or any combination of the services (“Services”) listed below pursuant to the Agreement(s).

1. Clearwave Scheduling
   • 1.1 Patient Self-Scheduling. Online scheduling lets patients self-schedule their appointment(s) 24/7, combining patient needs with your business logic, provider clinical expertise, personal preferences and availability.
     • A) Insurance Eligibility Check. Includes real-time eligibility, which will trigger at the time the insurance data is entered into the session. The resulting eligibility status is consumed by the scheduler, and workflows can be modified based on status. No parsed eligibility details are displayed to the patient.
     • B) Multi-Factor Authentication (“MFA”). Provides the ability for a patient to receive a text message with a unique number to authenticate themselves during the self-scheduling process. Implementation and use of MFA is required for Provider and patient access to and use of the Patient Self-Scheduling service.
     • C) Clearwave NextUp. Appointment waitlist feature that allows patients to submit a request during the self-scheduling process to be added to the waitlist for a specific, currently unavailable, appointment with Provider. If the requested appointment subsequently becomes available, the first patient on the waitlist will be automatically notified of the now-available appointment by text message, email, and/or interactive voice message depending on the then-current options for NextUp notice delivery and the patient’s previously selected communication preferences. If the patient chooses to reject the now-available appointment, or fails to accept or reject the now-available appointment within the allotted time period, the next patient on the waitlist (if any) will automatically be notified of the now-available appointment. Notices sent via text message and/or email can be configured to include a self-scheduling link that the patient may use to confirm/accept or reject the now-available appointment. If the patient previously scheduled another appointment with Provider for the same service, in conjunction with their acceptance/confirmation of the change to the now-available appointment, such patient will automatically receive an additional follow-up message that lets the Patient cancel or keep their previously scheduled appointment.
     • D) Google Analytics. Google Analytics is used to power the Self-Scheduling Usage Report. A user action tracking report can be generated for self-scheduling via the Provider's Google Analytics account and Dashboard. This report offers insights into the frequency with which users complete specific actions within the application, as well as the number of times a particular action is performed. It's important to note that Google Analytics, the technology underpinning this tracking, is not compliant with HIPAA regulations. Clearwave does not collect any PHI (as defined above) as part of this report.
     • E) Languages. Translations for supported languages for standard scheduling screens are included at no additional cost. Provider may request examples of standard scheduling screens. Provider is responsible for supplying and maintaining translations for any custom questions, screens, and forms they wish to include. Clearwave is not accountable, and bears no liability, for the accuracy, legality, or completeness of translations provided by the Provider or any information contained therein. Provider has the option to include additional languages through an additional Agreement. When Provider requests additional languages, Clearwave will provide a list of available languages upon request.
   • 1.2 Call Center. Includes an interactive guided scheduling script that presents scheduling agents with matched provider and appointment availability.
     • A) Insurance Eligibility Check for Call Center. Real-time eligibility will trigger at the time the insurance data is entered into the session. The resulting eligibility status is consumed by the scheduler, and workflows can be modified based on status. Eligibility status, copay and remaining deductible are displayed to the call center user.
   • 1.3 Integration, Implementation and Training for Self-Scheduling and Call Center. A dedicated project manager will be assigned to the project and will walk through all the details surrounding the project in a kickoff meeting. Clearwave’s Scheduling training includes a detailed review of appointment scheduling workflows.
2. Clearwave Eligibility
   • A) Insurance Eligibility Verification. Includes real-time insurance eligibility verification and benefit details for primary, secondary, and tertiary Payors (as defined below), as well as alerts that highlight discrepancies between the data submitted for verification and returned by Payors. Eligibility results are stored for one (1) year and accessible via the Provider Web Portal (as defined below).
   • B) Integration, Implementation and Training. A dedicated project manager will be assigned to the project and will walk through all the details surrounding the project in a kickoff meeting. Clearwave’s Eligibility Only training includes a detailed review of eligibility verification and the dashboard.
   • C) Management and User Reporting. The Provider Web Portal (as defined below) has reporting capabilities and tools that allow Provider to obtain detailed and summary information on patient activity, productivity, eligibility information, duplicate patients and other reports. Additional details shall be set forth in the applicable Agreements(s).
3. Clearwave Registration and Clearwave Communications
   • 3.1 Clearwave Registration. Clearwave Registration (formerly known as “Clearwave Connect”) allows patients check-in for their appointment by combining some, or all, of the following services
     • A) Insurance Eligibility Verification. Includes real-time insurance eligibility verification and benefit details for primary, secondary, and tertiary Payors (as defined below), as well as alerts that highlight discrepancies between the data submitted for verification and returned by Payors. Eligibility results are stored for one (1) year and accessible via the Provider Web Portal (as defined above).
     • B) Pre-Check. Includes a process that allows patients to complete most of the registration and clinical intake paperwork from home on any personal device (i.e., computer/online, Smartphone, etc.). Pre-Check includes up to two (2) appointment reminders (via text message and/or email) for each patient appointment.
       APPOINTMENT REMINDERS USED FOR PRE-CHECK ARE NOT TO BE USED FOR COMMUNICATING PERSONAL HEALTH INFORMATION (“PHI”) (AS DEFINED BELOW). PROVIDER ASSUMES ALL RESPONSIBILITY IF PHI IS TRANSMITTED VIA AN APPOINTMENT REMINDER FOR PRE-CHECK.
     • C) Self-Service Patient Registration via Patient Smartphone.  Includes self-service software that allows patients to complete the patient registration and check-in process via the patient’s personal smartphone.
     • D) Credit Card Processing via Patient Smartphone. Allows patients to enter their credit or debit card on patient’s personal smartphone to pay for copays and outstanding balances. If Provider is using a merchant acquirer other than Rectangle Health, InstaMed, or ModMed Pay, Provider will need to either contract with Rectangle Health for Credit Card Processing via Smartphone or, depending upon the payment processor used by Provider’s existing merchant acquirer, Provider may be able to use Rectangle Health’s BridgePay gateway to process payments via Smartphone. All other payments including Kiosk (as defined on Attachment C) payments will be processed through Provider’s existing merchant acquirer.
     • E) Languages. Translations for supported languages for standard Self-Service Device screens are included at no additional cost. Provider may request examples of standard Self-Service Device screens. Provider is responsible for supplying and maintaining translations for any custom questions, screens, and forms they wish to include. Clearwave is not accountable, and bears no liability, for the accuracy, legality, or completeness of translations provided by the Provider or any information contained therein. Provider has the option to include additional languages through an additional Agreement. When Provider requests additional languages, Clearwave will provide a list of available languages upon request.
     • F) Integration, Implementation and Training. A dedicated project manager will be assigned to the project and will walk through all the details surrounding the project in a kickoff meeting. Clearwave’s Registration training includes a detailed review of eligibility verification, the dashboard and registration. Training is inclusive of customized workflows.
     • G) Management and User Reporting. The Provider Web Portal (as defined above) has reporting capabilities and tools that allow Provider to obtain detailed and summary information on patient activity, productivity, eligibility information, duplicate patients and other reports.
   • 3.2 Clearwave Communications. Clearwave Communications allows Provider staff to communicate with patients utilizing one, or all, of the following services:
     • A) Message Volume Allotment. Provider shall be entitled to the number of messages (including text messages and interactive voice messages) per month described in the Agreement(s) for no additional fees. Any overage of allotted number of messages could result to additional fees.
     • B) Two-Way Text Messaging. The Two-Way text messaging feature allows patients to send a text message to a designated number, which is provided by Clearwave to Provider using a local area code. The patient will receive an email and/or text message notification from Clearwave on the morning of the patient’s appointment, alerting the patient to send their name and appointment time upon arrival at Provider’s location to the designated number provided by Clearwave. For the best results, Clearwave recommends that Designated Users (defined below) accessing and/or utilizing the text messaging feature for or on behalf of Provider should use the Google Chrome web browser (“Chrome”) to take advantage of a Chrome extension. The Chrome extension allows Designated Users to stay within the Provider Web Portal (defined below) and see alerts in the Chrome browser window when a text message is sent. Designated Users can click on the icon and read and respond to the text message without leaving the Provider Web Portal. Provider may elect to use other web browsers but will need to use the text message request dashboard within the Provider Web Portal to send text messages.
       TWO-WAY TEXT MESSAGING IS NOT TO BE USED FOR COMMUNICATING PHI (AS DEFINED ABOVE). PROVIDER ASSUMES ALL RESPONSIBILITY IF PHI IS TRANSMITTED VIA TWO-WAY TEXT MESSAGING.
     • C) Clearwave Reminders.  Automated patient appointment reminders are communicated via email, text message, or interactive voice message (“Clearwave Reminders”). Clearwave Reminders allow Provider to keep patients and schedules optimized and on track while simultaneously reducing patient no-shows. This feature allows patients to confirm appointments and submit requests to reschedule and/or cancel appointments or to opt-out of from receiving Clearwave Reminders. Clearwave Reminders are configurable and automated based on location, specific provider, or appointment type.
       CLEARWAVE REMINDERS IS NOT TO BE USED FOR COMMUNICATING PHI (AS DEFINED ABOVE). PROVIDER ASSUMES ALL RESPONSIBILITY IF PHI IS TRANSMITTED VIA CLEARWAVE REMINDERS.
     • D) Clearwave Recalls.  Allows Provider to keep patients and appointment calendars on track with automated digital prompts for follow-up appointments (“Clearwave Recalls”). This feature allows Provider and its Designated Users to set automated alerts for patients who have checked in for an appointment with Provider using the Services but who have not yet scheduled a follow-up visit. Providers are able to target specific appointment types to fill future time slots and optimize schedules.
       CLEARWAVE RECALLS IS NOT TO BE USED FOR COMMUNICATING PHI (AS DEFINED ABOVE). PROVIDER ASSUMES ALL RESPONSIBILITY IF PHI IS TRANSMITTED VIA CLEARWAVE RECALLS.
     • E) Clearwave Message[¹].  Includes access to messaging services that allow Provider and Designated Users to communicate with patients at scale by email, text message, or interactive voice message (“Clearwave Message”). The Clearwave Message feature allows Provider and Designated Users to quickly send out important messages, alerts, or patient services notifications. With Clearwave Message, Provider will be able to rely on easily configurable messaging, logic, and patient/patient population targeting capabilities, and will have access to an overview of messaging activity to see where follow-up may be needed.
       CLEARWAVE MESSAGE IS NOT TO BE USED FOR COMMUNICATING PHI (AS DEFINED ABOVE). PROVIDER ASSUMES ALL RESPONSIBILITY IF PHI IS TRANSMITTED VIA CLEARWAVE MESSAGE.
       • [¹] Clearwave Message is not currently available for general release.
4. Kiosk Self-Service Devices - Clearwave offers two (2) different forms of Self-Service Devices which may be implemented at Provider locations as outlined in the Agreement(s) and as described in the Self-Service Device Addendum attached hereto as Attachment C for the following types of Self-Service Devices: (a) Standalone Kiosk and (b) Tabletop Kiosk.
   • A) Self-Service Patient Registration via Kiosk. Includes self-service software that allows patients to complete the patient registration and check-in process via a Kiosk (as defined in Attachment C).
   • B) Standard Credit Card Processing via Kiosk. Allows patients to enter their credit or debit card at the Kiosk (as defined in Attachment C) to pay for copays and outstanding balances using a standard magnetic stripe device.
5. Other Clearwave Services
   • 5. 1 Clinical Intake[²]. Clearwave can collect clinical intake data as part of the pre-registration process through a clinical data intake application. Once the patient completes filling in the data, clinical intake data can be passed back into Provider’s PMS, EHR, and/or other health information system (“HIS”). The Dashboard shows an indication of this clinical intake form completion for staff to manage after the pre-registration is completed.
     • [²] Discrete Clinical Data Intake is not available for all Provider PMS, EHR, and/or HIS platforms.
   • 5.2 Integration Upgrades. Clearwave will perform remote (web-based) implementation, integration and training as set forth in the applicable Agreement and as may be described in further detail in an applicable attachment(s) to the Agreement(s). Additional training hours, PMS Upgrade Hours, server migration, and customized integration hours can be purchased from Clearwave by Provider, if needed, pursuant to a separate Amendment and/or SOW. Provider must contact the applicable PMS provider or third-party server host to determine whether additional costs will apply to complete the integration/migration. Provider is responsible for any additional PMS provider or third-party server host costs for such integration/migration. Clearwave shall not be responsible for payment of any such additional integration/migration costs.
   • 5.3 Two-Factor Authentication (DUO). If selected by Provider, Clearwave includes a two-factor authentication (2FA) process for Designated Users (as defined below) to strengthen access security to the Provider Web Portal (as defined below) requiring two methods to verify a Designated User’s identity. These factors include a username and password and tools to restrict access to a specific network and require a second factor––like a Smartphone app––to approve authentication requests outside such specific network. At the end of each quarter during the Term (as defined below), Clearwave will review the number of enabled unique Designated User logins for Provider and invoice Provider for the upcoming quarter at the per-month rates set forth in the applicable Agreement. Provider should actively manage Designated User logins and disable them as soon as a Designated User leaves Provider’s employment or otherwise no longer needs access to the Provider Web Portal. For purposes of calculating the amount of Provider’s quarterly payment, Designated Users disabled by Provider before the fifteenth (15th) day of a calendar month will be excluded from the total enabled Designated Users for such month.
   • 5.4 Single Sign On (Okta). If selected by Provider, Clearwave can leverage a customer’s Okta account to authenticate users into the Clearwave Dashboard and Scheduling applications. When enabled, the user access into Clearwave is controlled by Okta through their user account provisioning, removing the need for the user to maintain a separate login for the Clearwave applications. Clients are responsible for managing their Okta account and providing appropriate integration credentials to Clearwave upon setup. At the end of each quarter during the Term (as defined below), Clearwave will review the number of enabled unique Designated User logins for Provider and invoice Provider for the upcoming quarter at the per-month rates set forth in the applicable Agreement. Provider should actively manage Designated User logins and disable them as soon as a Designated User leaves Provider’s employment or otherwise no longer needs access to the Provider Web Portal. For purposes of calculating the amount of Provider’s quarterly payment, Designated Users disabled by Provider before the fifteenth (15th) day of a calendar month will be excluded from the total enabled Designated Users for such month.
   • 5.5 Advanced Payment Processing Features. If included in the Agreement, Clearwave shall provide advanced payment processing features, including Clearwave’s Credit Card on File, allowing Provider to securely store a patient’s credit card and process a payment using this stored card in Clearwave at the point of service. Other advanced payment processing features available include Point-to-Point Encryption (P2PE) and EMV devices for Kiosks (as defined on Attachment B) through AxiaMed, Modernizing Medicine, or Freedom Pay’s, gateways. Further details about additional advanced payment processing features are set forth in the applicable Agreement.
   • 5.6 Vision Service Plan (“VSP”) Authorizations.  VSP Authorizations allow the Provider to request VSP Authorizations from VSP via the Provider Web Portal (as defined below) or via batch if selected by Provider. Provider will be billed for VSP Authorizations based on the allocated number of VSP Authorizations included in the Agreement. Any overages will be reviewed at the end of each calendar year and billed to Provider if applicable.
   • 5.7 Professional Services - Professional services fee for clients who need best practices training and support.
6. Additional Work Items or Services. Provider and Clearwave may enter into a separate written Agreement for any additional Services or additional work items not set forth in the Agreement. Alternatively, the Parties may enter a separate Agreement for such additional items.

 

Attachment B: SERVICE LEVEL AGREEMENT

1. Availability and Functionality. Clearwave will use commercially reasonable efforts to maintain availability of the Services (as defined in the General Terms) for access and use by Provider. If, at any time, Provider finds the Services to be unavailable or improperly functioning, then Provider will promptly notify Clearwave by logging a Clearwave Client Support ticket, and Clearwave, as its sole obligation and liability to Provider for such problem, will provide the maintenance and remedial measures set forth in this Service Level Agreement. Clearwave warrants that the Provider Web Portal (as defined in the General Terms) will be available to be accessed at least ninety-nine percent (99.0%) (“Uptime”) of each full calendar year. Provider acknowledges that interruptions and loss of service may periodically occur as a result of: (a) scheduled or emergency maintenance, Scheduled Maintenance (as defined in Section 6 of this Attachment B), or repairs to the Services, a component thereof, or related website; (b) congestion, outages, or interruptions, including, without limitation, a Force Majeure Event (as defined in the General Terms); (c) hardware or software failures of Provider’s equipment; (d) any failure or other interruption of Provider’s Internet connection, including but not limited to any related connectivity hardware; or (e) an act or omission of Provider or a third party, including, without limitation, Payor (as defined in the General Terms) website unavailability or Provider’s ineligibility to access such Payor website, or Internet connection being out of service (collectively, “Downtime”), and Clearwave will not be responsible or liable for any interruptions caused by the foregoing and such Downtime will be excluded from the Uptime warranty calculation. If the availability of the Services falls below ninety-nine percent (99.0%) for any calendar year, Clearwave will provide up to a three percent (3.0%) credit toward Provider’s Monthly Fees for the following calendar year.
2. Data Retention. Clearwave shall retain and make available to Provider each Payor eligibility response for twelve (12) months from the time the response is first received. Other patient data collected by Clearwave shall be retained during the Term as defined in an applicable Sales Order.
3. Provider Web Portal Requirements. Provider is responsible for arranging for, and maintaining at all times during the Term, a suitable Internet connection to access and use the Services. If images are to be transferred over the network, then a minimum of 1 mbps upload and 1 mbps download is recommended. Unfettered access to the Internet on ports 53, 80 and 443 (DNS, http and https) must be provided on any Internet-accessing equipment employed by Provider in accessing and using the Services. Provider acknowledges that upgrades and improvements to the Services may require faster Internet connection speeds for continued access to and use of the Services by Provider. Provider hereby agrees to maintain the minimum Internet connection speed necessary to utilize the Services as upgraded and/or improved from time to time.
4. Network Deficiencies. The provision of the Services by Clearwave is directly dependent upon Provider’s network and Internet connection. If Clearwave identifies a network deficiency that is outside Clearwave’s control, then Provider shall use its best efforts to correct such deficiency as quickly as possible. If (a) Provider requests Clearwave to assist in correcting the deficiency, and (b) Clearwave elects to provide such assistance, then Clearwave shall perform the work and invoice Provider: (i) two hundred twenty-five and 00/100 Dollars ($225.00) per hour plus costs if Clearwave internal staff performs the repair work, or (ii) if Clearwave outsources the work to a third-party, Clearwave’s actual costs plus ten percent (10.0%) of such costs.
5. Maintenance. Upon identifying a problem with the Services, Clearwave will promptly investigate to determine the appropriate measures to address the problem. Any maintenance performed on the Services will be done in accordance with Clearwave’s normal maintenance procedures. With the exception of major holidays, Clearwave will provide monitoring and support for the Services Monday through Friday 7:00 AM to 8:00 PM Eastern Time.
6. Scheduled Maintenance. Clearwave will use commercially reasonable efforts to: (a) conduct it’s regular, routine maintenance of the Services on the third (3rd) Saturday of each calendar month beginning at 9:00 PM Eastern Time (“Scheduled Maintenance”); and (b) give Provider at least five (5) days’ prior notice of such Scheduled Maintenance, which notice shall be given via both email and Provider Web Portal message. Provider acknowledges that the Scheduled Maintenance may last for one (1) or more hour(s) depending on the specific maintenance activities to be completed and that, during such Scheduled Maintenance, part or all of the Services may be unavailable.

Attachment C: SELF-SERVICE DEVICE ADDENDUM

1. Self-Service Devices. The Services may be accessed and used via the following self-service devices (collectively, the “Self-Service Devices”)

1.1  Clearwave-Owned Device (“Kiosks”) Description.

• • A) Clearwave-owned Standalone Kiosk: Freestanding Self-Service Check-In station, silver finish, with check-in sign.
  • B) Clearwave-owned Tabletop Kiosk: Tabletop Self-Service Check-In station, silver finish, with check-in sign.

1.2  Provider-Owned Device (“Provider Devices”) Description.

• • A) Provider-owned iPad Tablet: 10.2” Apple iPad (2018 or newer).

1.3  Patient-Owned Smartphone Device (“Smartphone”) Description.

1. • A) Patient-owned Smartphone or “Mobile” Device: A patient’s mobile phone that performs many of the functions of a computer, typically having a touchscreen interface, Internet access and an operating system capable of running downloaded applications.
2. Provider Devices. Provider may purchase its own tablet devices for Self-Service Check-In. Provider may use Clearwave-approved tablets to follow a similar check-in process as the Self-Service Patient Registration via Smartphone. Provider shall ensure that Provider Devices are secured via password or other security framework designed to protect unauthorized access to personal information of Provider patients, and Provider assumes all responsibility for the security and protection of Provider Devices to prevent unauthorized access to such Provider Devices. Clearwave is not responsible for the wireless connection of the tablet, and the standard ninety-nine percent (99.0%) Uptime warranty (as defined in the Service Level Agreement (Attachment B to the General Terms)), does not apply if downtime is determined to be caused by wireless connectivity issues and/or Provider Device hardware issues. Provider shall be responsible for all Provider Devices and Clearwave shall have no obligation to support, update, maintain or replace Provider Devices, and Clearwave disclaims all liability for the functionality, performance and/or security of Provider Devices.
3. Technical Requirements for Self-Service Devices. The cloud-based Self-Service Check-In application requires wired, high-speed Internet for Kiosks and a standard electrical outlet. The application is locked down to prevent unauthorized access, and no PHI is stored on the Kiosk hardware. The Kiosk requires a secure, wired, high-speed Internet connection. A minimum of 1 mbs upload and 1 mbs download is sufficient. Provider is responsible for: (a) supplying an electrical outlet in close proximity, or sufficient battery power, to each Kiosk, and (b) providing unfettered access to the Internet on ports 53, 80 and 443 (DNS, http and https). Kiosks should be located in a secure area  that promotes privacy for Provider’s patients and authorized users and restricts unauthorized access by unauthorized users to restrict and prevent unauthorized access to and use of the Kiosks. The location of the Kiosks should also that promotes privacy for users and restricts unauthorized access by unauthorized users and an area that promotes privacy for Kiosk users. Upgrades and improvements to the Services may require faster internet connection speeds, and Provider agrees to maintain the minimum connection speed necessary to utilize the Services.
4. Additional Terms for Kiosks.  Provider will email the delivery address and onsite contact information to Clearwave at least four (4) weeks in advance of the expected delivery date of the Kiosk(s). Provider will be responsible for inspecting the Kiosk(s), completing the Clearwave-provided setup checklist, and accept that the Kiosk(s) was/were delivered in reasonable physical condition. If there is any material physical damage to the Kiosk(s), Provider should not accept delivery and immediately contact the Clearwave representative assigned to Provider during the implementation phase. If the Kiosk is in reasonable physical condition, Provider must email the completed setup checklist to Clearwave within forty-eight (48) hours of the Kiosk delivery date. If a setup checklist with any issues is not received within this time period, the Kiosk will be deemed to be accepted by Provider. Once delivery is accepted, Provider assumes full liability for any physical damage to the Kiosk.If the hardware becomes inoperable, and if Clearwave determines that the problem is caused by hardware failure or defect, then Clearwave will ship a replacement part for the failed component and will have a service engineer on-site at Provider within forty-eight (48) hours Monday to Friday to replace the failed component.

Clearwave is not responsible for damage, or inoperability, caused by Provider, any third party, or any act(s) of God. Damage caused to the kiosk hardware, whether directly or indirectly, by Provider, a third party, or an act of God, is expressly excluded from the terms of this hardware warranty. This includes, but is not limited to, damage arising from unauthorized repairs, modifications, accidents, theft, natural disasters, fire, floods or other water damage, lightning, earthquakes, or any other events beyond the control of Clearwave. It is Provider’s responsibility to take appropriate precautions, including but no limited to securing the hardware, implementing safety measures, and obtaining insurance coverage to mitigate any potential risks arising from third-party actions or acts of God. This exclusion clause shall be governed by and construed in accordance with the laws of governing state (defined above). In the event that any provision of this clause is deemed invalid or unenforceable, the remaining provisions shall remain in full force and effect.

In the event Clearwave determines that a replaced Kiosk or part was damaged, or rendered inoperable, by Provider, a third party, or an act of God, then Clearwave shall promptly notify Provider, and Provider shall promptly reimburse Clearwave for the cost of the damaged part or Kiosk.

Upon receipt of the Kiosk(s), Provider may be responsible for following assembly instructions provided by Clearwave. Provider is responsible for plugging the Kiosk power cord into the electrical outlet, plugging the Ethernet cord into the Ethernet connection, turning the Kiosk on and following the instructions provided to unlock the Kiosk and assign the Kiosk to the designated Provider location.

Clearwave is not selling or transferring title to the Kiosk(s) to Provider. Clearwave is offering a patient self-service registration service that may include Kiosk(s), a software application, or website, that allows Provider’s patients to utilize Smartphones to complete the Self-Service Check-In process.