CLEARWAVE CORPORATION

CLEARWAVE PORTALS
TERMS OF USE

Last modified: March 11, 2024

1.              INTRODUCTION

Clearwave provides self-service registration and self-service scheduling solutions to healthcare providers and patients. Clearwave’s Mobile Pre-Check system provides a process that allows patients to complete their registration from any device that can access the internet in advance of their appointment. Clearwave offers a mobile app (“Mobile App”) designed to operate on your smartphone, tablet or other mobile computing device (“Mobile Device”), which enables users to schedule an appointment and check in for any linked service provider appointment, perform a walk-in check in for one of these providers, pay a balance owed to a provider and continuation of care for referring providers. The Mobile Pre-Check and Mobile App also may be utilized by your medical provider or yourself to track and manages patient visit, service and account information (collectively, the “Patient Record”). Your Patient Record may also include clinical data for past medical visits and limited medical history collected as part of the ‘pre-check’ process if required by your medical provider. The Mobile Pre-Check system and Mobile App are referred to collectively as the “Portals”.

2.              ACCEPTANCE OF THIS AGREEMENT

A.            By  continuing to use Clearwave’s Mobile App or any additional services we provide pursuant to these Terms of Use, you indicate that these terms of use (for the Portals) together with our Privacy Policy (as described below, incorporated herein, and as updated from time to time) (collectively, “Agreement”) form a binding agreement between you as the account user (referred to as “you” or “your”) and Clearwave Corporation (referred to as “Clearwave”, “we”, “us”, or “our”) and that you have read and understood the following terms and conditions, and (ii) you represent that you are at least 18 years of age, or the minimum age of legal consent as required by applicable law, whichever is higher to enter into a binding agreement. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE PORTALS.

B.             IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE PORTALS OR OUR SERVICES. IMPORTANT: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION, AND ALSO CONTAINS A CLASS ACTION WAIVER. Please carefully review Sections 12 and 16 of this Agreement for more information.

C.             We will maintain and use your information according to our privacy policy, located at https://s3.amazonaws.com/cw.privacypolicy/Clearwave+Privacy.v4ai.html, which is incorporated by reference into this Agreement, and which may be modified from time to time in our discretion (“Privacy Policy”), and which will be effective when posted on our website. Your continued use of the Mobile Portal, Mobile App, indicates that you agree with such modifications.

3.              CHANGES TO THE AGREEMENT

A.            We periodically update and improve the Services and may at times remove features in order to improve your ability to use the Services. Because we are constantly trying to improve our Services, this Agreement may also need to change. We reserve the right to amend this Agreement at any time. The updated Agreement will be effective upon our posting of such updated Agreement on our website. You agree to review our website from time to time to review any modifications.

B.             If you don’t agree with the new Agreement, you are free to reject them; but, it will mean you will no longer be able to use the Services. If you use the Services in any way after a change to the Agreement is effective, that means you agree to all of the changes.

C.             The current version of and future modifications to this Agreement will be posted at https://s3.amazonaws.com/cw.termsofuse/termsofuse.html and will be effective immediately upon posting. You agree to review our website from time to time to review any modifications. By continuing to use the Portals following any such modification, you accept and agree to be bound by such modifications. IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE AND EXCLUSIVE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE PORTALS. You are responsible for downloading and installing the latest version of the Portals as soon as it becomes available. We shall not be responsible for any consequences of your failing to do so.

4.              LICENSE TO USE CLEARWAVE PORTALS

A.            Subject to the terms of this Agreement, we grant you a personal, limited, non-exclusive and nontransferable license to: (i) download, install and use the applicable Portals for your personal, non-commercial use, and (ii) access and use on such Portals and the applicable Service(s) made available in or otherwise accessible through the Portals, strictly in accordance with this Agreement.

B.             You acknowledge that we are not a health advisor, provider, testing lab, or the like, and we do not provide medical, health, or other professional services or advice.

C.            The performance and loading times of the Portals is dependent upon many things that are not in our control, including your own network performance, the age and performance of your computer or Mobile Device, and the availability of internet connectivity.

D.            We are not responsible for supplying any of the equipment or networks required to access the Portals. This remains the responsibility of you as the user.

E.               The information you provide and enter into the Portals or that may be imported therein from approved and authorized third parties may contain sensitive and personal health information. Our use and disclosure of such information is governed by our Privacy Policy.

F.         The Portals and Services are for use only in the United States of America unless expressly provided in an applicable order form or written document signed by Clearwave.  No license to the Portals or Services is offered for use outside of the United States.

5.              AVAILABILITY OF PORTALS

A.            Availability

i.               We shall use commercially reasonable efforts to provide continuous access to the Portals. We do not guarantee that the Portals will be accessible at all times. The Portals may be unavailable during maintenance periods or during an emergency. In addition to normal maintenance, there may be events that will make the Portals inaccessible for a limited amount of time due to unforeseen circumstances.

iii.            We have the right to refuse to provide access to the Portals.

iv.            We have the right to cease offering the Portals at any time and in our sole discretion.

B.             We may subcontract services related to the operation and maintenance of the Portals.

6.              RESTRICTIONS ON USE

A.            You will not, and will not attempt to:

i.               modify, translate, adapt or otherwise create derivative works or improvements, of the Software or any content or source code;

ii.             reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

iii.            rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Software or any features or functionality of the Software, to any third party for any reason, including by making the Software available on a network where it is capable of being accessed by more than one device at any time;

iv.            remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Software;

v.              upload or introduce any virus or malware to the Software;

vi.            interfere with the operation or availability of the Software, or the hardware, software and network(s) used to operate the Software;

vii.          sublicense or transfer any of your rights under this Agreement or otherwise use the Service for the benefit of a third party, to operate a service bureau or for resale of the Service;

viii.         create or access user accounts using any automated means or under false pretenses;

ix.            frame or mirror the Software or reformat it in any way or use deep links;

x.              introduce any keystroke logging or any other monitoring code into the Software; or,

xi.            otherwise use the Service or the Software in any manner that exceeds the scope of the access right described above.

7.              STORAGE AND TRANSFER

A.        By agreeing to this Agreement, you consent to the storing and processing of your personal information, including sensitive information, in the United States. We use a range of measures to safeguard information but these countries may have laws that are different from those of your country of residence. You also consent to your personal information, including sensitive information, being assigned, transferred or conveyed in the event of a business transition such as, but not limited to, a merger, sale, asset or stock acquisition of us by another company, or other transaction or proceeding. In such a case, your information would be used as set out in our Privacy Policy.

B.        Clearwave reserves the right to discontinue support for any of its Software, products or services that are or were formally utilized for purposes of storage of data including personal information.  Clearwave does not intend for any of its Software, products or services to be relied upon as a cloud hosting service.  You are responsible for backing up any data that is provided to Clearwave and Clearwave disclaims any warranties or representations for loss of data.  Clearwave Account holders may still access personal information through m.clearwaveinc.com site until this application is discontinued.

8.           INTELLECTUAL PROPERTY RIGHTS

A.            Ownership of all intellectual property and other rights in the Software, including, but not limited to, the software, design, layout, content, links, and the like shall remain with us and our licensors, as applicable. All Software content is protected by copyright and is owned by us or used with permission. We reserve all rights not specifically granted in this Agreement.

B.             Elements of the Software are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part by any means, including but not limited to, the use of framing or mirrors. None of the content for our Software may be retransmitted without our express written consent.

C.             CLEARWAVE, the geometric logo, the terms “Multi-Factor Eligibility”, “The Patient Revenue Platform” as well as other trademarks we use are trademarks or registered trademarks of Clearwave Corporation.

9.           DISCLAIMER OF WARRANTIES

A.            THE PORTALS AND SERVICES ARE PROVIDED TO YOU “AS IS, AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND OUR AND OUR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE MOBILE PORTAL AND THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PORTALS OR SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS.

B.             WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANY OF OUR PROVIDERS, PARTNERS, AFFILIATES, OR HEALTH CONSULTANTS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (I) AS TO THE OPERATION OR AVAILABILITY OF THE MOBILE PORTAL, MOBILE APP, OR THE INFORMATION, CONTENT INCLUDED THEREON; (II) THAT THE PORTALS OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE PORTALS; OR (IV) THAT THE PORTALS OR OUR (AND OUR SERVICE PROVIDERS’) SERVERS, THE CONTENT, OR COMMUNICATIONS SENT FROM OR ON BEHALF OF US ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIME BOMBS OR OTHER HARMFUL COMPONENTS.

C.             SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

10.           LIMITATION OF LIABILITY

A.            TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF OUR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE MOBILE PORTAL OR THE SERVICES FOR:

i.               PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION DATA INCLUDING THE PATIENT RECORD, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;

ii.             ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE SOFTWARE OR SERVICES;

iii.            THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES;

iv.              THE IMPROPER AUTHORIZATION FOR THE SERVICE BY SOMEONE CLAIMING SUCH AUTHORITY;

v.            STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR,

vi.          DIRECT DAMAGES IN AMOUNTS THAT IN EXCEED ONE HUNDRED DOLLARS (U.S.). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR CAUSE OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

B.             SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

C.             WE DO NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE PORTALS OR THE SERVICES, OR ANY RELATED SERVICES. THE OPERATION OF THE PORTALS, AND MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OUR CONTROL.

D.            UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE PORTALS INCLUDING, BUT NOT LIMITED TO, RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE PORTALS OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS, OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED TO THE PORTALS.

E.             IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. IF YOU ARE A RESIDENT OF A STATE WITH PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE §1542, YOU HEREBY WAIVE SUCH PROVISIONS OR PROTECTIONS.

11.           INDEMNIFICATION.

You agree to indemnify, defend and hold us and our officers, directors, employees, agents, affiliates, service providers, successors and assigns harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and costs, arising from or relating to (i) your use or misuse of the Software; (ii) your breach of this Agreement; (iii) any user content you submit, post to or transmit through the Software or the Service; or, (iv) your violation of any third party’s rights, including, but not limited to, intellectual property rights, right of privacy, right of publicity and confidentiality.

12.           DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION.

A.             Arbitration.  The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the Software shall be by binding non-appearance-based arbitration (the provisions of this Section 12 being referred to as the “Arbitration Agreement”). In the event a party elects arbitration, they shall initiate such arbitration before a single arbitrator through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties, or, if no agreement is reached within ten (10) days of a request for agreement, then according to the rules (“Rules”) of the American Arbitration Association. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. All aspects of the arbitration shall be treated as confidential, as provided in the Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Notwithstanding the foregoing, we may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Software, disclosure of our confidential information or trade secrets, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in the dispute resolution process described above. Any proceeding to enforce this Arbitration Agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. If you or we pursue arbitration, the arbitration action must be initiated within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the relevant claim.

B.             Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

C.             Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to the arbitration provisions of this Arbitration Agreement.

13.           GOVERNING LAW

All disputes arising out of or relating to the Agreement shall be governed by Georgia law regardless of your country of origin or where you access the Portals or the Services, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods.

14.           EQUITABLE RELIEF

Notwithstanding anything herein to the contrary, either party may bring a claim related to intellectual property rights or seek temporary and preliminary specific performance and injunctive relief, in any court of competent jurisdiction, without the posting of bond or other security.

15.           CLASS ACTION WAIVER

Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims with respect to any disputes subject to arbitration under this Agreement or any disputes between the parties. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

16.           WAIVER OF JURY TRIAL

Each party irrevocably and unconditionally waives any right it may have to a trial by jury for any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

17.           MISCELLANEOUS

A.              Limitation of Time to File Claims. Any action, claim or dispute you have against us must be filed within one year. To the extent permitted by law, any claim or dispute under this Agreement must be filed within one (1) year in an arbitration proceeding. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one (1) year, it is permanently barred.

B.               Independent Contractors. The parties intend that an independent contractor relationship will be created by this Agreement, and that no additional partnership, joint venture, employee, employer or other relationship is intended. You agree not to hold yourself out as in any way sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of Clearwave, any of our affiliates or service providers.

C.             Entire Agreement. This Agreement constitutes the entire agreement between you and us with respect to the Portals and the Service and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect. The headings of sections and paragraphs in this Agreement are for convenience only and shall not affect its interpretation.

D.             Assignment. You may not assign, transfer or convey this Agreement or any obligations thereunder without our prior written consent. Any assignment, transfer or conveyance by you in violation of this Agreement shall be of no power or effect.

E.             Contact Information. Should you wish to contact us with any questions, complaints or claims with respect to the Software or the Service, please email us at cwaccountsupport@clearwaveinc.com.