Master Services Agreement

This Master Services Agreement (this “Agreement”) is an attachment to the Order Form, and incorporated herewith, is made and entered into effective as of the date of the Order Form by and between Wieldy, Inc, a Delaware corporation (“Wieldy”) and you (the “Subscriber”).

The terms and conditions of this Agreement and the Order Form, together with the Wieldy Privacy Policy and Business Associate Agreement, applies to all Wieldy Services provided by Wieldy, including your use of the Wieldy Services to manage insurance claims and payment data for patients. By executing the Order Form and by using the Wieldy Services, you are agreeing to be bound by these terms. 

1. SERVICE ORDERS.

Wieldy agrees to provide Subscriber Access to certain hosted Service Provider Software and Documentation; and provide all other services necessary for productive use of such Service Provider Software including integration, management, technical support, maintenance, and professional services (the “Services“) as described in the Order Form. Each Order incorporates this Agreement in its entirety. If any term or provision in any Order modifies or conflicts with the terms or conditions contained in this Agreement, this Agreement shall control. Provisions in the Order that are in addition to or different from any terms and conditions in this Agreement shall not become part of this Agreement.

2. API LICENSE.

2.1 Licensed Uses and Restrictions. Subject to the terms and conditions of this Agreement (including the payment of all applicable fees), Wieldy hereby grants you a worldwide (except as limited below), non-exclusive, non-sublicensable license to use the Wieldy API to access and use the Wieldy Services as permitted under the terms of this Agreement. This Agreement defines the legal use of the Wieldy APIs, all Updates, revisions, substitutions, and any copies of the Wieldy APIs made by or for you. All rights not expressly granted to you are reserved by Wieldy. 

1. Subject to the restrictions set forth in this Agreement, you may use the Wieldy APIs and any Updates provided by Wieldy solely to interface with Wieldy’s platform and any Wieldy Services ordered by you as set forth on an Order Form. Your license to the Wieldy APIs under this Agreement continues until it is terminated by either Party. Wieldy may make changes, or upgrades to all or any portion of any Wieldy API at any time for any reason.  

2. You will use the Wieldy APIs in compliance with all Applicable Laws.

3. Wieldy shall provide Updates at no additional charge to Subscriber.  Wieldy shall provide Subscriber with notice prior to implementing any Update, and Subscriber shall not make any Update that decreases the security, and/or functions of the Wieldy Services.  

4. You shall NOT:

1. Use or otherwise access with Wieldy API for use with Patients until you have received approval from Wieldy which shall not be unreasonably withheld.

2. Use the Wieldy APIs in any manner or for any purpose that violates any law or regulation, promotes illegal activities, violates any Additional Terms, violates any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, or in any manner inconsistent with this Agreement.

3. Modify, adapt, alter, translate or create derivative works from any Wieldy API.  

4. Sell, lease, share, transfer, or sublicense the Wieldy APIs, or access. 

5. Intentionally use the Wieldy APIs in a manner that materially degrades the Wieldy Service.

6. Otherwise exercise rights to the API except as expressly allowed by this Agreement.

7. Reverse engineer or attempt to reconstruct, identify or discover any underlying ideas. underlying user interface techniques or algorithms related to the Wieldy Service.

8. Remove, obscure or alter any of Wieldy’s copyright notices, trademarks or other proprietary rights notices affixed to or contained within the API.

2.2 Integration. The Wieldy APIs shall be integrated with the Wieldy Services to be provided as defined in the Order Form and to allow Subscriber to access and use the Wieldy Services only through the Wieldy Platform. 

2.3 Ownership and Relationship of Parties. The Wieldy APIs may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. Wieldy’s rights apply to the Wieldy APIs and all output and executables of the Wieldy APIs. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in this Agreement. Wieldy owns all rights, title, and interest in and to the Wieldy APIs. This Agreement grants you no right, title, or interest in any intellectual property owned or licensed by Wieldy or any third party, including (but not limited to) the Wieldy APIs and Wieldy trademarks. 

3. YOUR WIELDY ACCOUNT.

3.1  Access and Integration. In order to access the Wieldy Services Subscriber shall integrate its third-party Internal Practice Management System (PMS) to the Wieldy API in accordance with the Account Requirements. 

3.2  Account Requirements. Wieldy shall provide Subscriber with all necessary Account Integration Requirements, including but not limited to the following formats: (i) requirements and information available in the API; (ii) use cases; (iii) functional and/or technical specifications relating to all available functions and features of Wieldy’s Services and Wieldy APIs, in any document form and (iv) oral or written guidance from Wieldy’s personnel during the integration. Prior to making the Subscriber Account available, Subscriber will ensure that all Account Integration Requirements have been met, the Subscriber Use complies with all Applicable Law, rules, regulations and the Subscriber PMS will be properly configured to send data to the Wieldy Platform through the Wieldy API or other Wieldy supported data transfer mechanism.  

3.3 Account Credentials. After the execution of the Order Form, Wieldy shall provide Subscriber with account credentials specific to the Subscriber for use of the Wieldy Platform, where the integration shall be completed. 

a. Subscriber shall keep the account credentials confidential and disclose on a need to know basis, and Subscriber shall not sell, transfer, sublicense, or disclose the account credentials to any third party, other than a service provider performing services on your behalf that has been both disclosed to Wieldy and approved by Wieldy in writing.

b. Subscriber is solely responsible for maintaining adequate security and control of any Subscriber account credentials and any other Wieldy access credentials issued to you by Wieldy. Subscriber is liable for any actions or inactions performed using Subscriber account credentials, Subscriber account credentials or other Wieldy credentials, including, but not limited, to actions or inactions performed without Subscriber’s prior knowledge or consent. If Subscriber believes or has actual knowledge that its account credentials were compromised, Subscriber shall notify Wieldy immediately and Wieldy shall suspend or revoke such account credentials and issue new account credentials to Subscriber once Subscriber demonstrates that the vulnerability that compromised the Subscriber account was cured.

4.  FEES.

4.1 Fees. Subscriber will pay Wieldy the fees for the Wieldy Service as set forth on the applicable Order Forms (“Fees”). All reasonably undisputed Fees owed by Subscriber in connection with this Agreement are exclusive of, and Subscriber shall pay taxes and charges that may be levied upon Subscriber in connection with this Agreement, except for employment taxes and taxes based on Wieldy’s income or gross receipts. 

4.2 Fee Disputes. If Subscriber disputes any Fees owed under this Agreement, the Parties shall work in good faith to promptly resolve the dispute. Subscriber must promptly notify Wieldy of any disputed Fees, but in no event later than thirty (30) days after it first learns of the Fees. Subscriber shall maintain complete, accurate and up-to-date Subscriber billing and other contact information within the Wieldy Platform.

4.3. Free Trials. If you register for a free trial, Wieldy will make Wieldy Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Wieldy Services, or (b) the start date of any subscriptions ordered by you for such Wieldy Services. Additional trial terms and conditions may be apply. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

5. CONFIDENTIALITY.  

5.1 Confidential Information. Each Party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other Party (the “Receiving Party”) certain Confidential Information. The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party.    

5.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees and third party services providers of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

5.3 Exceptions. The Receiving Party’s obligations under this subsection shall not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (x) approved in writing by the Disclosing Party, (y) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (z) required by law, rule or regulation, required by the PSP or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. 

5.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.

6.  OWNERSHIP AND DATA.

6.1 Wieldy Platform and Technology. Subscriber acknowledges that Wieldy retains all rights, title and interest in and to the Wieldy Platform, and that the Wieldy Platform is protected by intellectual property rights owned by or licensed to Wieldy.  Other than as expressly set forth in this Agreement, no license or other rights in the Wieldy Platform are granted to the Subscriber. In addition, nothing in this Agreement gives Subscriber any rights to the information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions owned by any third-party service provider to Wieldy.

6.2 Subscriber Data. Subscriber retains all rights, title and interest in and to the Subscriber Data. Subscriber hereby grants to Wieldy a non-exclusive, worldwide, royalty-free and fully paid-up license to: (a) access and use Subscriber Data to provide the Wieldy Services to Subscriber; provided, that, the license grant shall be perpetual and irrevocable, and any use of such Subscriber Data shall be in compliance with all Applicable Law. Subscriber represents and warrants that it has all necessary rights to grant Wieldy the foregoing licenses. Notwithstanding the foregoing, to the extent an Applicable Law requires Wieldy to delete Personal Information upon request, Wieldy shall comply with all such laws, rules and regulations even if such information is Subscriber Data. In the event Wieldy is required to delete Subscriber Data as a result of this provision, Wieldy will promptly notify Subscriber.

6.3 Data Privacy. Each Party shall comply with all applicable privacy laws, rules and regulations. However, the Subscriber shall be responsible for obtaining the required consents from patients to allow Wieldy to process patient payment Information. 

6.4 Data Security.

a. Wieldy Obligations. Wieldy will maintain commercially reasonable administrative, technical, and physical controls to protect Subscriber Data stored in its servers from unauthorized access, accidental loss, or modification. Wieldy shall cooperate fully (and shall take commercially reasonable efforts to ensure full cooperation from its third-party service providers) with Subscriber PMS and engage in any commercially reasonable efforts to locate and prosecute the perpetrator of any program fraud and Subscriber shall bear the costs of such efforts.  

b. Subscriber will maintain throughout the Term (as defined below), reasonable and appropriate and industry standard administrative, physical and technical measures designed to protect data against loss and unauthorized access, disclosure and use in compliance with all Applicable Law (the “Data Safeguards”). In addition, during the Term, Subscriber will maintain physical, administrative and technical security measures designed to ensure the availability, integrity and confidentiality of all data processed and sent to Wieldy through the Wieldy APIs.  

c. In the event Subscriber becomes aware of any loss or unauthorized access, disclosure or use of any Subscriber Data that resides on Wieldy’s systems or is in possession of Subscriber (“Security Breach”), Subscriber will (i) promptly notify Wieldy in writing of such Security Breach, and (ii) take reasonable steps to identify the cause of such Security Breach, minimize the harm associated therewith and prevent reoccurrence thereof. Any notification of any Security Breach and subsequent communication about the Security Breach will describe, to the extent known, details of the Security Breach, including steps taken to mitigate the potential risks. In the event Wieldy becomes aware of any loss or unauthorized access, disclosure or use of any Subscriber Data held by Wieldy (“Wieldy Security Breach”), Wieldy will (i) promptly notify Subscriber in writing of such Wieldy Security Breach, and (ii) take reasonable steps to identify the cause of such Wieldy Security Breach, minimize the harm associated therewith and prevent reoccurrence thereof. Any notification of any Wieldy Security Breach and subsequent communication about the Wieldy Security Breach will describe, to the extent known, details of the Wieldy Security Breach, including steps taken to mitigate the potential risks.

6.5 Use of Name and Publicity. Wieldy shall not, without prior written consent of Subscriber in each instance, use in advertising, publicity or otherwise the name of Subscriber, or any Affiliate, partner or employee of Subscriber, nor any trade name, trademark, trade device or simulation thereof owned by Subscriber or its Affiliates, or represent, directly or indirectly, that any product or any service provided by Wieldy has been approved, recommended, certified, or endorsed by Subscriber or its Affiliates. Notwithstanding the foregoing, subject to Subscriber’s prior written permission for each such usage, Wieldy may be entitled to use the name and logo of Subscriber for Wieldy’s marketing materials or publication. Subscriber’s name will not be disclosed without prior written consent. 

7. REPRESENTATIONS AND WARRANTIES.  

7.1 Mutual Representations and Warranties. Each Party warranties and represents to the other that: (a) It has the authority to enter into this Agreement, and its agreement and ability to perform the obligations hereunder do not violate any agreement or obligation between such Party and any third-party; (b) it has and will in the performance of its obligations under this Agreement comply with all Applicable Law; and (c) when executed and delivered, this Agreement, its exhibits and addenda, will constitute the legal, valid, and binding obligation of each Party, enforceable in accordance with its terms.  

7.2  Subscriber Representations and Warranties. Subscriber represents and warrants to Wieldy that: (a) Subscriber shall use the Wieldy APIs and Wieldy Services in compliance with all laws, regulations, rules, orders of any governmental authority, Wieldy’s Account Integration Requirements, proper disclosures and agreements, and proper patient consent; (b) except as otherwise disclosed in writing by Subscriber to Wieldy, neither Subscriber nor, to the knowledge of the Subscriber, any person directly or indirectly owning ten percent (10%) or more of the equity interests in Subscriber, any officer or director of the Subscriber or any person actively participating, or having the right to participate, in the control of Subscriber’s business is or has been subject to the following: (a) criminal conviction (except minor traffic offenses and other petty offenses); (b) administrative or enforcement proceedings commenced by any Regulatory Authority; and (c) to the Knowledge of Subscriber there is not a restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or unfair or deceptive practices on the part of Subscriber or any principal thereof; (c) to the Knowledge of Subscriber, except as otherwise disclosed in writing by Subscriber to Wieldy, there is no pending, or threatened, litigation or legal proceeding of any kind, including without limitation, any judicial, tax, administrative or arbitration proceeding, which if adversely determined could reasonably be expected to materially and adversely affect Subscriber’s business, continuing operation, or ability to perform its obligations under this Agreement and (d) any information which Subscriber provides to Wieldy during the due diligence process is accurate. 

7.3  Wieldy Representations and Warranties. Wieldy represents and warrants to Subscriber that:  (a) the Wieldy Services shall conform in all materials respects with this Agreement and the Documentation; (b) the Wieldy Services shall be performed in compliance with Applicable Law; and (c) Wieldy has agreements in place with third-party service providers to provide the Wieldy Services to Subscriber.

7.4  Warranty. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NO OTHER REPRESENTATIONS AND WARRANTIES ARE GIVEN BY WIELDY OR SUBSCRIBER AND THE WIELDY SERVICES, AND OTHER SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE. THIS DISCLAIMER OF WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. IN PARTICULAR, NO THIRD-PARTY SERVICE PROVIDER TO WIELDY MAKES ANY WARRANTIES UNDER THIS AGREEMENT AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED.

8.  TERM AND TERMINATION.  

8.1 Term. The term of this Agreement will commence on the Effective Date and continue for an initial term as indicated in the Order Form (the “Initial Term”). After the Initial Term, this Agreement shall be deemed renewed automatically for successive one (1) month terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides the other party with written notice of its intent to not renew and extend this Agreement at least sixty (60) days prior to the expiration of the then-current term. If Wieldy provides notice of non-renewal, Subscriber shall have the option for Wieldy to continue to provide the Wieldy Services under this Agreement for up to an additional sixty (60) days after the end of the then-current term (the “Extended Term”). 

8.2 Termination for Material Breach. This Agreement may be terminated by either Party: (a) in the event of material breach by the other Party and, to the extent that such breach can be cured, fails to cure such breach within thirty (30) days after receipt of notice by the other Party; (b) upon direction from any Regulatory Authority to either Party to cease or materially limit the performance of the rights or obligations under this Agreement or the inability to obtain any required regulatory approvals; (c) Subscriber has breached the Account Integration Requirements; or (d) in the event of a Regulatory Authority (via a conclusion of regulatory proceeding, investigation, or inquiry) rules that the Applicable Law that prohibits a Party’s ability to perform its obligations as contemplated by this Agreement  (each a, “Adverse Change”).  Wieldy may terminate this Agreement immediately if: (a) Subscriber fails to pay the undisputed Fees within ten (10) days of a payment deadline on three separate occasions within any twelve-month period; or (b) Subscriber materially breaches this Agreement.  

8.3 Early Termination. If the Subscriber chooses to terminate Wieldy Services any time after the Initial Term, then the Subscriber shall be liable for the fees due under the Order Form as of the effective date of termination.   

9. LIMITATION OF LIABILITY AND INDEMNIFICATION.  

9.1  Limitation of Liability. EXCEPT FOR BREACHES OF CONFIDENTIALITY OR A PARTY’S BREACH OF THE DATA SECURITY OBLIGATIONS OR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, IN NO EVENT WILL EITHER PARTY (OR WIELDY’S SUPPLIERS AND SUBCONTRACTORS) BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (I) THIS AGREEMENT, (II) A DEPOSIT AGREEMENT, OR (III) YOUR USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER WIELDY OR SUBSCRIBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACHES OF CONFIDENTIALITY, A PARTY’S BREACH OF THE DATA SECURITY OBLIGATIONS OR INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, IN NO EVENT WILL EITHER PARTY’S LIABILITY EXCEED THE FEES WIELDY HAS RECEIVED FROM SUBSCRIBER DURING THE PRECEDING TWELVE (12) MONTHS. THIS LIMITATION OF LIABILITY SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. THE PARTIES AGREE THAT THE LIMITATION OF LIABILITY PROVIDED HEREIN SHALL NOT APPLY TO DIRECT DAMAGES RELATED TO FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY OR ITS EMPLOYEES. IN ADDITION, ANY LIMITATION OF LIABILITY PROVISION WHICH WIELDY HAS AGREED TO WITH THE PSP FOR THE SERVICES UNDER THIS AGREEMENT SHALL ALSO APPLY TO THE SUBSCRIBER.  NOTWITHSTANDING THE FOREGOING, EITHER PARTY’S LIABILITY FOR ANY BREACH OF ITS DATA SECURITY OBLIGATIONS, WHICH INCLUDES A PARTY’S INDEMNITY OBLIGATIONS RELATED THERETO, WILL BE LIMITED TO TWO TIMES THE FEES PAID BY SUBSCRIBER TO WIELDY DURING THE TWELVE (12) MONTHS PRECEDING THE FIRST EVENT TO GIVE RISE TO SUCH LIABILITY.  

9.2 Indemnification. 

a. By Wieldy.  If any action is instituted by a third party against Subscriber or its affiliates or  its and their employees, directors, agents, representatives, successors and assigns (“Subscriber Indemnitees”) based upon all claims demands, or actions, liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) (collectively, “Claims”) that: (a) the Wieldy Service or Wieldy Platform, as delivered, infringes any third party’s intellectual property rights; (b) Wieldy’s provision of the Wieldy Services in violation of any Applicable Law, (c) Wieldy Security Breach; or (d) Wieldy’s gross negligence or willful misconduct, Wieldy shall indemnify, defend and hold harmless Subscriber Indemnitees against such Claims at its own expense on behalf of Subscriber and shall pay all damages attributable to such third party claim which are finally awarded against Subscriber or paid in settlement. If the Wieldy Service or Wieldy Platform is enjoined or, in Wieldy’s determination is likely to be enjoined, Wieldy shall, at its option and expense (a) procure for Subscriber the right to continue using the Wieldy Service, (b) replace or modify the Wieldy Platform or Wieldy Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Subscriber’s access to the Wieldy Service and refund any amounts previously paid for the Wieldy Service attributable to the remainder of the then-current term. Wieldy shall not agree to any settlement or compromise affecting the financial or legal obligation of any Subscriber Indemnitee (including a settlement or compromise that (a) results in any admission of guilt on the part of the Subscriber Indemnitee; (b) imposes any obligation or liability on the Subscriber Indemnitee; or (c) has a judicially binding effect on the Subscriber Indemnitee) without the Subscriber Indemnitee’s prior written consent. This Section sets forth the entire obligation of Wieldy and the exclusive remedy of Subscriber against Wieldy for any claim that the Wieldy Service infringes a third party’s intellectual property rights.  

b. By Subscriber. If any Claim is instituted by a third party against Wieldy or its affiliates or  its and their employees, directors, agents, representatives, successors and assigns (“Wieldy Indemnitees”) relating to (a) Subscriber’s breach of Sections 6.3 and 6.4(b) of this Agreement, (b) Subscriber’s use of the Wieldy Services in violation of any Applicable Law or not in accordance with the Documentation, (c)  a third party’s claim that Wieldy’s Services in accordance with this Agreement and any instructions provided by Subscriber misappropriate, violate, or infringe any third-party intellectual property right, or (d) any Security Breach, Subscriber will defend such action at its own expense on behalf of Wieldy and shall pay all damages attributable to such claim including, but not limited to, remediation expenses and fines, penalties and assessments imposed by networks or regulatory authorities. This subsection states the sole and exclusive remedy of Wieldy and the entire liability of Subscriber for the claims and actions described herein. Subscriber shall not agree to any settlement or compromise affecting the financial or legal obligation of Wieldy Indemnitee (including a settlement or compromise that (a) results in any admission of guilt on the part of the Wieldy Indemnitee; (b) imposes any obligation or liability on the Wieldy Indemnitee; or (c) has a judicially binding effect on the Wieldy Indemnitee) without the Wieldy Indemnitee’s prior written consent.

c. Procedure. Any Party that is seeking to be indemnified under the provision of this Section 9 must (a) promptly notify the other Party (the “Indemnifying Party”) of any Claim, for which it is seeking an indemnity hereunder, and (b) give the Indemnifying Party the sole control over the defense of such Claim.  

10. Third Party Software and Services

The Services may provide you with access to and/or integration with third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, products or services (hereinafter “External Services”).

Wieldy does not have or maintain any control over External Services and is not and cannot be responsible for their content, operation or use. By linking or otherwise providing access to any External Services, Wieldy does not give any representation, warranty, or endorsement, express or implied, with respect to the legality, accuracy, quality or authenticity of content, information or services provided by such External Services.

External Services may have their own Terms of Use and/or privacy policy, and may have different practices and requirements to those operated by Wieldy with respect to the Services. You are solely responsible for reviewing any Terms of Use, privacy policy, or other terms governing your use of these External Services, which you use at your own risk. You are advised to make reasonable inquiries and investigations before entering into any transaction, financial or otherwise, and whether online or offline, with any third party related to any External Services.

You are solely responsible for taking the precautions necessary to protect yourself from fraud when using External Services, and to protect your computer systems from harmful or destructive content and material that may be included on or may emanate from any External Services.

Wieldy disclaims any and all responsibility or liability for any harm resulting from your use of External Services, and you hereby irrevocably waive any claim against Wieldy with respect to the content or operation of any External Services

11. GENERAL TERMS.  

11.1  Notice and Electronic Communication. To the fullest extent permitted by law and this Agreement, notices and other communications (collectively, “Communications”) from one Party to the other regarding this Agreement may be provided electronically, and each Party consents and agrees to receive those Communications in an electronic form and is fully responsible to communicate any change in such Party’s email address. All Communications in electronic format will be considered to be “in writing,” and to have been received no later than twenty-four (24) hours after posting or dissemination. A Party’s consent to receive Communications electronically is valid until revoked upon proper notice.

a. Notice to Wieldy: Subscriber may give notice to Wieldy by emailing Wieldy at: legal@wieldy.ai

b. Notice to Subscriber: Wieldy may give notice to Subscriber by emailing Subscriber at the e-mail address indicated in the Order Form.

11.2 Disputes and Governing Law.  

a.   Informal Resolution. In the event of any dispute, controversy or claim arising out of or relating to this Agreement or the construction, interpretation, performance, breach, termination, enforceability or validity thereof (hereinafter, a “Dispute”), the Party raising such Dispute shall notify the other promptly. The Parties shall cooperate and attempt in good faith to resolve any Dispute promptly by negotiating between persons who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for administration and performance of the provisions or obligations of this Agreement that are the subject of the Dispute. 

b. Arbitration. Any Dispute which cannot otherwise be resolved as provided in paragraph (a) above – including any dispute as to the scope or validity of this arbitration provision – shall be resolved by arbitration conducted in accordance with JAMS’s shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereof. The arbitration tribunal shall consist of a single arbitrator, or, if the arbitral demand or any counterclaim asserts claims in excess of ten million dollars ($10 million), a panel of three arbitrators. In the case of a single arbitrator, such arbitrator may be appointed by agreement of the Parties within fourteen (14) days of receipt of the arbitral demand. Failing such agreement, the arbitrator shall be appointed pursuant to the procedure set out in the JAMS Rules. In the case of a three-arbitrator panel, one shall be appointed by each Party and the third by the two other arbitrators, with any failure to agree addressed as prescribed in the JAMS Rules. The place of arbitration shall be New York, New York, unless the Parties agree to another location. The arbitral award shall be final and binding. The Parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived.

c. Judicial Recourse. Notwithstanding the provision of paragraph (b) above, each Party retains the right to seek judicial assistance:  (i) to compel arbitration, (ii) to obtain interim measures of protection until the arbitrator(s) can be empaneled and determine whether and in what form such measures should be continued, and (iii) to enforce any decision of the arbitrator, including the final award. The Parties submit to the exclusive jurisdiction of the state and federal courts located in the New York, for purposes of clauses (i) and (ii) of this paragraph but may seek relief in any court that otherwise may possess jurisdiction over the Parties with respect to clause (iii).

d. Governing Law. This Agreement will be governed by and construed in accordance with U.S. federal law and the laws of the State of New York without regard to its conflicts or choice of laws principles.   

11.3 Complete Understanding. This Agreement and the exhibits attached hereto (as modified by the Parties from time to time) is the entire understanding and agreement of the Parties and supersedes any and all previous and contemporaneous understandings. Only a writing signed by both Parties may modify it. In addition, any Regulatory Authority may require the Parties to modify the terms of this Agreement at any time. Changes to Agreements.  Also, the PSP may, in its reasonable discretion, require this Agreement be modified to reflect changes in Applicable Law or in response to a Customer or prospective Customer complaint from any Regulatory Authority.

11.4 Severability. In the event that any provision of this Agreement is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. 

11.5 Waiver. No waiver of any right under, or breach of, this Agreement will be effective unless in writing and signed by an authorized representative of the Party against whom the waiver is sought to be enforced. No delay or failure by either Party to exercise any right under this Agreement, and no partial exercise of any right under this Agreement, will constitute a waiver of that right or any other right. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 

11.6 Independent Contractors. The Parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.

11.7 Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. 

11.8 Force Majeure. Neither Party will have any liability if it is unable to perform, in whole or in part, as a consequence of an act of God or public enemies, public acts, fire, explosion, accident, labor disputes/strikes, floods, embargo, war, terrorism, nuclear disaster, riot, major pandemic, failure of public utilities, communication links or facilities or any other cause not within the reasonable control of such Party and not caused by such Party’s negligence or fault (each a “Force Majeure Event”); provided, however, that either Party may terminate this Agreement if the other Party remains unable to perform due to a Force Majeure Event for more than thirty (30) consecutive business days.

11.9 Assignment. Neither Party may assign any rights or obligations arising under this Agreement, without the prior written consent of the other which shall not be unreasonably withheld; except that either Party may assign this Agreement with prior written notice to the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subscriber agrees that Wieldy may subcontract certain aspects of the Wieldy Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Wieldy of any of its obligations hereunder.

Exhibit A

Definitions

Definitions. As used in this Agreement the following terms have the following meanings.

“Applicable Law” means the (i) Network Rules, and (ii) the laws, court opinions, attorney general opinions, rules and regulations of the United States or of any State or the various agencies, departments or administrative or governmental bodies thereof, and any regulatory guidance, determinations of (or agreements with) a Regulatory Authority and directions or instructions from (or agreements with) any Regulatory Authority, to the extent applicable to the issuance, sale, authorization or usage of the products and services offered under the Programs or as otherwise applicable to a party, as all the same may be amended and in effect from time to time.

“Confidential Information” means all information regarding a Party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary. Subscriber Data and patient information is the Confidential Information of Subscriber. Confidential Information of Wieldy includes information derived from or concerning the Wieldy Service, the Wieldy Platform, and the terms of this Agreement.

“Wieldy Platform” means the APIs, technology, including hardware, software and associated Wieldy technology, used by Wieldy to deliver the Wieldy Services to Subscriber.

“Wieldy Services” means the on-line services delivered by Wieldy to Subscriber using the Wieldy Platform as described in an Order Form, including all improvements and modifications that Wieldy makes generally available to its Subscribers generally (that Wieldy does not charge separately for).

“Personal Information” shall mean any information that is submitted to Wieldy by Subscriber that can readily identify a given individual as well as any personal information as defined under the California Consumer Privacy Act of 2018 and nonpublic personal information as defined in the Gramm-Leach-Bliley Act of 1999.

“Subscriber Data” means any information submitted by Subscriber through the Wieldy Service or provided by Subscriber to Wieldy as part of the Wieldy Service, including patient information.

“Updates” means any and all modifications, additions, or updates to the Wieldy Services, including those to correct bugs, deficiencies, or errors; to conform to regulatory or industry requirements; to perform required maintenance; or to incorporate product upgrades to improve operability or new functionalities, including any new version.