AgentaHealth, Inc. Customer Terms and Conditions

Welcome to the services of AgentaHealth, Inc. (“AgentaHealth,” “we,” or “us”). These terms and conditions (these “Terms”) explain the terms by which Users (defined below) may use our online and/or mobile services, application program interfaces, and software provided on or in connection with our service and platform (collectively, the “Services”). By accessing or using the Services, by clicking a button or checking a box marked “I Agree” (or something similar), or in connection with signing one or more statements of work with AgentaHealth (each, a “Statement of Work” or “SOW”) specific to your organization, you signify that you have read, understood, and agree to be bound by these Terms, each Statement of Work which is hereby incorporated by reference and the BAA (as defined below) (the Terms, SOWs (if applicable), and the BAA, collectively, the “Agreement”). AgentaHealth reserves the right to modify these Terms and will provide notice of material changes as described below. These Terms apply to each Customer and its Authorized Users (as such terms are defined below) who sign up to access the Services through our website or platform or sign a Statement of Work with us (collectively, “Users” and each, a “User,” “you” or “your”).

PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN AN ARBITRATION PROVISION IN SECTION 12.2 AND A JURY TRIAL WAIVER PROVISION IN SECTION 12.3 THAT REQUIRE THE EXCLUSIVE USE OF FINAL AND BINDING ARBITRATION TO RESOLVE DISPUTES BETWEEN YOU AND US, INCLUDING ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE YOU AGREED TO THESE TERMS.

If a User subscribes to, or accesses or uses the Services, through an organizational account that permits access to the Services, or if you use or allow use of the Services within the organization’s account after being notified of a change to these Terms, you acknowledge your understanding of the then-current Agreement and agree to be bound by the terms of the Agreement on behalf of the Customer with the organizational account.

1. General Provisions

1.1. Eligibility

This is a contract between the Customer and AgentaHealth. Each Customer must read and agree to these Terms, and instruct your Authorized Users to read these Terms, before using the Services. If you do not agree, you may not use the Services. You may use the Services only if you can form a legally binding contract with us, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations (“Applicable Law”). Without limiting the generality of the foregoing, any access to, or use of, the Services by anyone who is a minor (which is under the age of 18 in most jurisdictions) in any applicable jurisdiction is strictly prohibited and in violation of these Terms.

2. Customers, Authorized Users, and Customer Content

“Customer” is the organization identified in the applicable Statement of Work or that you represent and identify when signing up to access the Services online and in agreeing to the Agreement. If you signed up for an account using your corporate email domain, are otherwise entering into a plan on behalf of a business entity or other organization, or are accessing the Services on behalf of a business entity or other organization, the business entity or other organization on whose behalf you signed up or are accessing the Services is the Customer. By signing up for the Services on behalf of your business entity or other organization, you represent and warrant that you have all right, power, and authority to bind such entity or organization to the Agreement. Customer may authorize certain employees, contractors, or other individuals to access the Services (each an “Authorized User”) and may also communicate with various third parties through the Services (each, a “Third-Party User”). Authorized Users, Customer, business associates (as that term is defined at 45 CFR 160.103) of Customer, or Third-Party Users using the Services through Customer’s use of or access to the Services may provide, submit, post, or make available through the Services, or otherwise provide, submit, or make available to AgentaHealth to input into the Services or otherwise facilitate the Services, certain information, data, and other content, in any form or medium, directly or indirectly (including via a third-party provider), including content that consists of images, comments, questions, information, documents, spreadsheets, medical records, patient information, telephone conversations, telephonic communications, recordings, transcripts, and insurance information (collectively, “Customer Content”). Customer will be solely responsible for, and AgentaHealth disclaims all liability with respect to, all of the acts and omissions of its Authorized Users and any Third-Party Users in relation to the Services, the Customer Content, and the Agreement.

Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Content; (b) ensure that all Authorized Users comply with the terms set forth in the Agreement, and (c) obtain all rights, permissions or consents from Authorized Users and Third-Party Users that are necessary to grant the rights and licenses in the Agreement and for the lawful use and transmission of Customer Content and the operation of the Services.

Notwithstanding anything to the contrary in this Agreement, AgentaHealth may process Personal Information that relates to AgentaHealth’s relationship with Customer, and Customer’s use of the Services, including, by way of example, the names and contact information of Authorized Users and Third-Party Users (“Customer Contact Data”). AgentaHealth may process Customer Contact Data: (v) to manage the relationship with the Customer; (w) to carry out AgentaHealth’s core business administration operations, such as accounting, audits, tax preparation and for filing and compliance purposes; (x) to monitor, investigate, prevent and detect fraud, security incidents and other misuse of the Services, and to prevent harm to AgentaHealth, Customer, and AgentaHealth’s other Customers; (y) for identity verification purposes; and (z) to comply with Applicable Law, rules, and regulations relating to the processing and retention of Personal Information to which AgentaHealth is subject. For the purposes of this Agreement, “Personal Information” shall mean any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including all data considered “personal data,” “personally identifiable information,” Protected Health Information, as defined by the Health Insurance Portability and Accountability Act of 1996 (“PHI”), or something similar under Applicable Law, rules, or regulations relating to data privacy.

2.1. Accounts

(a) Your User Account

Customer and Authorized Users may have an account on the Services (each, a “User Account”). The User Account gives you access to certain services and functionalities that we may, in our sole discretion, establish and maintain as part of the Services from time to time. You acknowledge that, notwithstanding anything to the contrary herein, you do not own your User Account, nor do you possess any rights to the servers running the Services. We may maintain different types of User Accounts for different types of Users.

(b) Account Security

You may never use another User’s User Account without such User’s permission. When creating your User Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, you will keep your User Account password(s) and/or any other authentication credentials secure, and you will not share your password(s) and/or any other authentication credentials with anyone else. We encourage you to use “strong” passwords (passwords that use a combination of upper- and lower-case letters, numbers, and symbols) to protect your User Account. Any Authorized User with administrator-level access to Customer’s User Account can modify the Customer’s User Account settings, access, and billing information. We will not be liable for, and expressly disclaim liability for, any losses caused by any unauthorized use of your User Account and/or any changes made to your User Account, including changes made by any Authorized User with administrator-level access to your User Account. You will notify us immediately of any breach of security or unauthorized use of your User Account.

(c) Account Settings

You may be able to control certain aspects of your User Account and any associated User profile, and the way you interact with the Services, through methods we make available to you from time to time. By providing us with your email address, you consent to our using that email address to send you Service-related notices, including any notices required by Applicable Law, in lieu of communication by postal mail. We may also use that email address to send you other messages, including marketing and advertising messages, such as messages notifying you of changes to features of the Services and special offers (collectively, “Marketing Emails”). If you do not want to receive Marketing Emails, you may opt out of receiving them or change your preferences by contacting the Services support team at contact@agentahealth.com or by clicking on the “unsubscribe” link within a Marketing Email. Opting out will not prevent you from receiving Service-related notices.

2.2. Changes, Suspension, and Termination

You may de-activate your User Account at any time. We reserve the right to suspend your access to the Services immediately if your use of the Services: (a) materially violates this Agreement; (b) is improper or substantially exceeds or differs from normal use by other Users; (c) raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues; or (d) to protect the integrity or availability of the Services or our systems.

2.3. Feedback

Customer and its Authorized Users or Third-Party Users may choose to, or we may invite them to, submit comments or ideas about the Services, including about how to improve the Services or our products (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and Customer hereby assigns all right, title, and interest in and to the Feedback without any additional compensation by us, whether to Customer, the Authorized User, or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of the submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our personnel, or obtained from sources other than Customer or its Authorized Users.

3. Services Usage and Restrictions

3.1. Our License to Customer

(a) Ownership of the Services, Documentation, and AgentaHealth Data

Commencing on the applicable date that you begin using the Services or the start date of your use of the Service or as otherwise set forth in your SOW and continuing for the remainder of the applicable term of this Agreement, AgentaHealth will make the Services available in accordance with the Documentation (as defined below), if any. We own and will continue to own our Services and Documentation, including all related intellectual property and other proprietary rights related thereto. Customer and each User acknowledges that no intellectual property rights in and to the Services, Documentation, or any and all related and underlying technology or other information (excluding Customer Content and Output, as defined herein) are assigned or transferred to Customer hereunder. Further, Customer acknowledges and agrees that we may collect data relating to Customer’s, its Authorized Users’, and Third-Party Users’ usage of the Services, including user activity, device information, performance data, transactional data, geolocation data, log file data, usage statistics and other information related to Customer’s, its Authorized Users’, and its Third-Party Users’ use of the Services (“Usage Data”) and collect, analyze, and use data derived from Customer Content that has been de-identified, aggregated and/or anonymized such that it does not identify Customer or any identifiable individual person (“Derivative Data” and, collectively with Usage Data, “AgentaHealth Data”). All AgentaHealth Data and derivative works thereof will be owned solely and exclusively by us.

(b) Licenses to the Services and Documentation

During the Term (as defined below), we grant the Customer a non-exclusive, non-transferable, non-sublicensable limited license to access and use, and to permit Authorized Users and Customer’s Third-Party Users to access and use the Services, in accordance with the Agreement, solely in connection with the Customer’s own internal business purposes. For clarity, the Services may be provided on a software-as-a-service basis (the “SaaS Deployment”) or on an on-premises basis deployed on Customer’s premises (the “On-Premises Deployment”), as indicated on the applicable SOW or as agreed by the parties in writing (email to suffice). SaaS Deployment shall be provided in a multi-tenant environment unless otherwise indicated in an SOW. All fees and implementation services associated with each deployment shall be specified in and provided in accordance with the applicable SOW.

For On-Premises Deployments or if we make downloadable software components available via app stores or other channels as part of the Services, during the Term, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the object code version of these components, but solely as necessary to use the Services. Minor updates, bug fixes, and the like to such downloadable software components will be included under this license for the duration of the Term.

From time to time we may make available product documentation for the Services (the “Documentation”) via a method of our choosing (e.g., via the Services). During the Term, we grant to Customer a non-sublicensable, non-transferable, non-exclusive, limited license for Customer and its Authorized Users to use the Documentation to support Customer’s and its Authorized Users’ use of the Services.

All rights and licenses granted herein are subject to you and your Authorized Users’ full compliance with all of the terms and conditions of the Agreement. All rights in the Services and Documentation not expressly granted herein are expressly reserved by us.

3.2. Customer’s Licenses to Us

(a) Ownership of Customer Content

As between us on the one hand and Customer on the other, Customer will own all Customer Content.

(b) License to Customer Content

Subject to the terms and conditions of the Agreement, Customer (for itself and all of its Authorized Users) represents and warrants that it has all rights necessary to grant (including any necessary consents and authorizations from individual persons, including Third-Party Users, identified in or providing the Customer Content) the licenses from such parties whose content is included in the Customer Content. Additionally, and subject to Section 3.1(a), Customer grants to us and our employees and contractors a royalty-free, sublicensable, transferable, worldwide, non-exclusive, license during the Term to access, use, host, store, reproduce, modify, publish, list information regarding, translate, process, copy, distribute, perform, export, display, and make derivative works of all Customer Content, and the names, voice, and/or likeness contained in the Customer Content, in whole or in part, and in any form, media, or technology, whether now known or hereafter developed, in order for us (directly or through the use of third-party providers) (i) to provide, maintain and offer the Services to Customer and our other customers; (ii) to prevent or address service, security, support or technical issues relating to or arising from the Services; (iii) as required by law; and (iv) as expressly permitted in writing by Customer.  

Notwithstanding the foregoing, Customer agrees that we may collect, analyze, use and disclose, during or after the Term, AgentaHealth Data for any business purpose as permitted by Applicable Law, including to operate, analyze, improve, and market the Services and our other products and services, share such anonymized data with our affiliates and business partners, and for training artificial intelligence models and systems to improve and create AgentaHealth’s products and services. Customer further agrees that we will have the perpetual right to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of such AgentaHealth Data.

To the extent permitted under Applicable Law, we take no responsibility and assume no liability for any Customer Content that Customer, any Authorized User, or any other Third-Party User submits, posts, or otherwise makes available through the Services. As between Customer and us, Customer shall be fully responsible for the Customer Content and the consequences of submitting, posting, or otherwise making it available via the Services, and Customer acknowledges and agrees that we are acting only as a passive conduit for Customer’s, its Authorized Users’, and its Third-Party Users’ distribution of such Customer Content.

3.3. Responsibilities for Customer Content

We are not responsible for the content of any Customer Content or the way Customer or its Authorized Users or any Third-Party Users choose to use the Services to store or process any Customer Content. Customer represents and agrees that, as between AgentaHealth and Customer, Customer is solely responsible for (a) providing notices to, and obtaining consents from its Authorized Users and Third-Party Users, as legally required from its Authorized Users and Third-Party Users for the collection, use, processing and transfer of Customer Content in connection with the Services; and (b) ensuring compliance with all laws in all jurisdictions that may apply to Customer Content provided hereunder, including all applicable international, federal, state, provincial and local laws, rules, and regulations relating to data privacy and security. We do not make any representations as to the adequacy of the Services to process your Customer Content or to satisfy any legal or compliance requirements which may apply to your Customer Content, other than as described herein. The Customer acknowledges and agrees that AgentaHealth is not the official record keeper of any Customer Content. Any data, documents, or information provided to or maintained by Agentahealth in connection with the Services under this Agreement are for the purpose of facilitating such Services only. The Customer remains solely responsible for maintaining and preserving its own official business records and Customer Content in accordance with Applicable Laws and regulations.

3.4. Use of the Services

Customer must comply with the Agreement and ensure that its Authorized Users comply with the Agreement. Customer shall only provide access to the Services to Third-Party Users in compliance with the terms of this Agreement. In connection with using any components of the Services, Customer must comply with and ensure its Authorized Users or Third-Party Users comply with all Applicable Law. AgentaHealth shall not be held liable for any use of the Services by the Customer, its Authorized Users, or its Third-Party Users that violates Applicable Law, including AI regulations. We may review conduct for compliance purposes, but we have no obligation to do so. If we believe there is a violation of the Agreement that can be remedied by Customer’s removal of certain Customer Content, we will, in most cases, ask Customer to take direct action rather than intervene. However, to the extent legally permissible, we reserve the right to take further appropriate action, when we deem it reasonably appropriate if Customer does not take appropriate action, or if we believe there is a credible risk of harm to us, the Services, Authorized Users, or any third parties.

3.5. Acceptable Use

(a) Technical Restrictions

Customer agrees not to, and shall ensure its Authorized Users and Third-Party Users do not, engage in any of the following prohibited activities: (i) disassembling, reverse engineering, decoding, or decompiling any part of the Services; (ii) copying, distributing, or disclosing any part of the Services in any medium, including by any automated or non-automated “scraping”; (iii) using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Services in a manner that sends more request messages to the servers hosting the Services than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iv) transmitting spam, chain letters, or other unsolicited email; (v) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (vi) taking any action that imposes, or may impose as determined in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vii) uploading invalid data, viruses, worms, or other software agents through the Services; (viii) collecting or harvesting any personally identifiable information, including account names, from the Services; (ix) using the Services for any commercial solicitation purposes; (x) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (xi) interfering with the proper working of the Services; (xii) using or displaying the Services in competition with us, to develop competing products or services, for benchmarking or competitive analysis of the Services, or otherwise to our detriment or disadvantage; (xiii) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; (xiv) identifying or referring to us or to the Services in a manner that could reasonably imply a relationship that involves endorsement, affiliation, or sponsorship between you (or a third party) and us without our prior express written consent; (xv) bypassing the measures we may use to prevent or restrict access to the Services, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein; or (xvi) using any content available on or via the Services (including any caption information, keywords, or other metadata) for any machine learning and/or artificial intelligence training or development purposes, or for any technologies designed or intended for the identification of natural persons.

(b) Customer Content Restrictions

Customer is solely responsible for the content of any Customer Content that Customer, its Authorized Users, and its Third-Party Users, as applicable, submit through the Services. You agree not to submit or have submitted any Customer Content that: (i) may create a risk of harm, loss, physical or mental injury, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, obscene, or otherwise objectionable; (vi) contains any information or content that is illegal (including the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; or (ix) to the extent applicable, violates any professional, medical, or other applicable policy, including those related to ethics.

You agree that any Customer Content that you, your Authorized Users, or your Third-Party Users, as applicable, submit does not and will not violate third-party rights of any kind, including any intellectual property rights or rights of privacy. To the extent legally permissible, we reserve the right, but are not obligated, to reject and/or remove any Customer Content that we believe, in our sole discretion, violates any of these provisions.

(c) Customer Equipment

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed for Customer and its Authorized Users to connect to, access or otherwise use the Services, including hardware, servers, laptops, desktops, virtual machines, cloud services, infrastructure software, operating systems, and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment and files, and for all uses of the Equipment with or without Customer’s knowledge or consent.

3.6. Output

Subject to your compliance with these Terms, you may use your output of the Services (“Output”) for any lawful purpose (except as described below), on a royalty-free basis, provided that you acknowledge and agree that: (a) your use of the Services and the Output does not transfer to you ownership of any intellectual property rights in the Services and (b) we may, by notice to you at any time, limit your use of the Output or require you to cease using it (and delete any copies of it) if we form the view, in our sole and absolute discretion, that your use of the Output may infringe the rights of any third party. Additionally, when using the Services to generate Output that directly impacts individuals in high-risk areas, Customer shall ensure that a qualified professional in that field reviews the content and Output prior to dissemination of such Output (including to Third-Party Users) or finalization of any decisions, medical or otherwise, based on such Output. You shall not represent, including to Third-Party Users, that Output was human-generated or use the Output to train your own machine learning models.

DUE TO THE NATURE OF MACHINE LEARNING, THE OUTPUT MAY NOT BE UNIQUE ACROSS USERS AND THE SERVICES MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR OTHER USERS. USE OF THE SERVICES MAY RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT REALITY. YOU MUST EVALUATE THE ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR YOUR USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUT. YOU UNDERSTAND AND AGREE THAT THE OUTPUT MAY CONTAIN “HALLUCINATIONS” AND MAY BE INACCURATE, OBJECTIONABLE, INAPPROPRIATE, OR OTHERWISE UNSUITED TO YOUR PURPOSE, AND YOU AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DAMAGES YOU OR ANY THIRD PARTY ALLEGES TO INCUR AS A RESULT OF OR RELATING TO ANY OUTPUT OR OTHER CONTENT GENERATED BY OR ACCESSED ON OR THROUGH THE SERVICES.

4. Payment Obligations

4.1. Billing Policies; Taxes

Aspects of the Services and/or products available via the Services may be provided for a fee or other charge (“Fee”). By electing to use the Services, including enrolling in a plan via execution of a SOW, Customer agrees to the pricing and payment terms applicable to Customer and as described in the applicable page of your User Account or otherwise specified in each SOW as applicable (the “Pricing and Payment Terms”). We may add new products and/or services for additional Fees, add or amend Fees for existing products and/or services, and/or discontinue offering certain aspects of the Services at any time, in our sole discretion; provided, however, that if we have agreed to a specific Subscription Term (as defined below) and a corresponding Fee, then such Fee will remain in place during that Subscription Term unless otherwise provided in the SOW. Except as may be expressly stated in these Terms or in the SOW, all Fees must be paid in advance, payment obligations are non-cancelable once incurred (subject to any termination or cancellation rights of Customer set forth in these Terms), and Fees paid are non-refundable. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use, and withholding taxes, assessable by any jurisdiction (collectively, but, for clarity, excluding taxes based on our net income, “Taxes”). You will be responsible for paying all Taxes associated with your purchases in connection with the Services. Unpaid undisputed Fees are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower (plus the costs of collection). AgentaHealth may suspend access to the Services for Customer and its Authorized Users immediately upon notice to Customer if Customer fails to pay any undisputed amounts due hereunder at least five (5) days past the applicable due date.

4.2. Your Payment Method

(a) General

To use the Services as a paying Customer, unless your SOW states otherwise, you must provide us with at least one (1) current, valid payment card that is accepted by us and the third party payment processor we use, as indicated via our Services during payment, which we engage to process payments Customers make in connection with the Services (“Payment Processor”) (each such card, a “Payment Method”). By providing a Payment Method, you authorize each of AgentaHealth and Payment Processor to charge that Payment Method the applicable Fees and Taxes, including, if applicable, on a recurring basis until you cancel your plan hereunder or under the applicable SOW. Fees and Taxes will be charged to your Payment Method on the specific payment date indicated in your User Account or SOW. In some cases, your payment date may change, for example, if your Payment Method has not successfully settled, if you changed your plan, or if the Term of the SOW began on a date not contained in a subsequent term. The length of your billing cycle will depend on the terms specified in the SOW. Fees are fully earned upon payment. We may authorize your Payment Method in anticipation of Service-related charges through various methods, including authorizing up to one (1) month of Fees for the Services as soon as Customer registers for the Services.

(b) Third-Party Payment Processor

We or Payment Processor will attempt to verify your Payment Method(s), and may do so by processing an authorization hold, which is standard practice. To the extent Payment Processor processes payments made by you, you will be subject to terms and conditions governing the use of Payment Processor’s service. Please review such terms and conditions as well as Payment Processor’s privacy notice (each of which is available on Payment Processor’s website). You acknowledge and understand that Payment Processor may collect and retain third-party Fees whenever you pay Fees. Payment must be received by Payment Processor before we provision the Services. We do not view or store your full credit card or other Payment Method information. For all payments, Payment Processor will collect your Payment Method details and charge your chosen Payment Method in connection with the transaction. If any of your account, transaction, or Payment Method information changes, you will promptly update such information, so that we or Payment Processor may complete your transaction(s) and/or contact you, as needed.

(c) Payment Representations and Warranties

You represent and warrant that: (i) the account and Payment Method information you supply to us and/or to Payment Processor, as applicable, is true, accurate, correct, and complete; (ii) you are duly authorized to use the Payment Method(s); (iii) you will pay any and all charges incurred by users of your Payment Method in connection with the Services, including any applicable Fees (at the prices in effect when such charges are incurred) and Taxes; and (iv) charges incurred by you will be honored by your Payment Method company.

(d) Disclaimer

WE DISCLAIM ANY AND ALL LIABILITY WITH RESPECT TO, AND YOU UNDERSTAND AND ACKNOWLEDGE THAT WE ARE NOT RESPONSIBLE FOR: (I) ANY SECURITY OR PRIVACY BREACHES RELATED TO YOUR CREDIT CARD OR OTHER PAYMENT METHOD, (II) ANY FEES THAT MAY BE CHARGED TO YOU BY YOUR BANK IN CONNECTION WITH THE COLLECTION OF FEES, AND/OR (III) ANY UNAUTHORIZED USE OF YOUR CREDIT CARD, DEBIT CARD, OR OTHER PAYMENT METHOD BY A THIRD PARTY.

4.3. Subscription Plans

(a) Automatic Renewals

Subscriptions may be available on an automatically renewing subscription basis and entail payment of fees on a recurring basis in accordance with your subscription via the Services (the “Subscription Fee”). TO THE EXTENT YOU OPT IN TO AUTORENEWAL, YOUR SUBSCRIPTION WILL AUTOMATICALLY BE CHARGED ON A RECURRING BASIS (AS SET FORTH IN YOUR USER ACCOUNT OR APPLICABLE SOW), BASED ON THE PAYMENT AND PRICING TERMS (EACH SUCH RECURRING PERIOD, A “SUBSCRIPTION TERM”) UNLESS AND UNTIL YOU CANCEL THE APPLICABLE SUBSCRIPTION IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 4.3(C) (CANCELLATION; REFUNDS).

(b) Automatic Billing and Policies

When you enroll in a subscription, you expressly acknowledge and agree that: (i) each of AgentaHealth and Payment Processor is authorized to charge you, at the beginning of each Subscription Term, the Subscription Fee for the applicable subscription, any applicable Taxes, and any other charges you may incur in connection with such subscription, subject to adjustment in accordance with these Terms; and (ii) your subscription is continuous until the earlier of: (A) your cancellation of such subscription (including any notice period specified in Section 4.3(c) (Cancellation; Refunds)) and (B) the suspension, discontinuation, or termination of your access to such subscription or to the Services in accordance with these Terms. You understand and acknowledge that the amounts billed may vary due to changes to the Subscription Fee in accordance with the Pricing and Payment Terms, and/or changes in applicable Taxes, and you authorize each of AgentaHealth and Payment Processor to charge your Payment Method the changed amounts.

(c) Cancellation; Refunds

Any Authorized User may de-activate such Authorized User’s User Account at any time, in your sole discretion. We may, subject to Section 4.1 (Billing Policies; Taxes) and Section 2.2 (Changes, Suspension, and Termination), suspend or terminate your subscription, your User Account, or the Services at any time, in our sole discretion. HOWEVER, YOU UNDERSTAND AND ACKNOWLEDGE THAT, UNLESS REQUIRED BY APPLICABLE LAW OR AS OTHERWISE SET FORTH HEREIN, YOU WILL NOT BE ENTITLED TO RECEIVE ANY REFUND OR CREDIT FOR ANY SUCH CANCELLATION, SUSPENSION, OR TERMINATION, NOR FOR ANY UNUSED TIME ON YOUR SUBSCRIPTION, ANY PRE-PAYMENTS MADE IN CONNECTION WITH YOUR SUBSCRIPTION, ANY LICENSE OR SUBSCRIPTION FEES FOR ANY PORTION OF THE SERVICE, OR ANY CONTENT OR DATA ASSOCIATED WITH ANY USER ACCOUNT, AND THAT ANY SUCH REFUNDS OR CREDITS MAY BE GRANTED AT OUR SOLE OPTION AND IN OUR SOLE DISCRETION. If you believe you have been improperly charged and would like to request a refund, please contact us at billing@agentahealth.com.

5. Term and Termination

5.1. Agreement Term

As further described below, a paid subscription has a Subscription Term that may expire or be terminated. The Agreement remains effective until all subscriptions ordered under the Agreement have expired or been terminated, the Agreement itself terminates, or as otherwise stated in the SOW (the “Term”). Termination of the Agreement will terminate all subscriptions. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a Subscription Term to stop a subscription from automatically renewing if applicable.

5.2. Termination for Convenience

We may terminate this Agreement with at least thirty (30) days’ prior written notice. If we terminate this Agreement pursuant to this Section 5.2, then we will provide you a pro-rata refund of any unused, prepaid Fees up to the date the termination takes effect.

5.3. Termination for Cause

We or Customer may terminate the Agreement on notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach. Customer is responsible for its Authorized Users and Third-Party Users, including for any breaches of the Agreement caused by its Authorized Users or Third-Party Users. We may terminate the Agreement immediately on notice to Customer if we reasonably believe that the Services are being used by Customer, its Authorized Users, or its Third-Party Users in violation of Applicable Law.

5.4. Effect of Termination

Upon the expiration or termination of this Agreement, (a) Customer, its Authorized Users and Third-Party Users shall immediately cease any and all use of and access to the Services and (b) except as expressly permitted herein, or as required by Applicable Law, each party will return to the other party or destroy such other party’s Confidential Information (defined below). Upon any termination for cause by us, Customer will promptly pay any unpaid fees covering the remainder of the Term after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination. Upon expiration or termination of this Agreement, you continue to be bound by these Terms.

(a) On-Premises Deployment

For Customers receiving the Services under On-Premises Deployment, upon expiration or termination for any reason, Customer will use best efforts to remove the On-Premises Deployment instance as soon as practicable following the effective date of such expiration or termination and shall provide certification of such removal to us. Notwithstanding the foregoing, Customer may retain a copy of the instance solely for business continuity purposes and no other purposes and solely in accordance with Customer’s business continuity procedures and policies for a limited period of time in accordance with such policies, subject to Customer providing written notice to us and including details of such business continuity plan as we may reasonably request. Any such retained materials or content shall remain subject to the terms and conditions of this Agreement, including Section 11 (Confidentiality).

5.5. Removal of Customer Content.

Customer acknowledges that if Customer or an Authorized User deletes Customer Content from the Services, such Customer Content may still reside in AgentaHealth’s systems, applications, databases and servers (including as backups and/or archives) for a period of time and be retained in compliance with Applicable Law. Customer acknowledges that if Customer or any Authorized User removes any Customer Content during the Term, such removal may have an adverse impact on Customer’s use of the Services (and AgentaHealth is not liable with respect thereto).    

6. Privacy; Business Associate Agreement

6.1. Privacy.

We care about your privacy. To the extent Customer provides Personal Information to AgentaHealth, AgentaHealth will act as a processor or service provider with respect to such Personal Information, while Customer shall act as a controller or business, as each of those terms is defined under applicable law.

6.2 Business Associate Agreement.  

In the course of providing the Services, we may receive or have access to PHI.  Customer and AgentaHealth acknowledge and agree that, unless otherwise agreed in writing, the terms of AgentaHealth’s Business Associate Agreement available at agentahealth.com/BAA (the “BAA”) shall be deemed entered into by Customer and AgentaHealth and incorporated by reference. To the extent any provision of the Terms is inconsistent with the terms of this BAA, the terms of the BAA shall control.

7. Representations; Limited Warranty; Disclaimer of Warranties

7.1. Customer Representations and Warranties

Customer represents and warrants that (i) it has validly entered into the Agreement and has the legal power to do so, and (ii) it is responsible for the conduct of its Authorized Users and Third-Party Users and their compliance with the terms of the Agreement and shall assist AgentaHealth in enjoining and otherwise redressing any breach of the Agreement by its Authorized Users or Third-Party Users.

7.2. AgentaHealth Representations and Warranties

AgentaHealth represents and warrants that (i) it has validly entered into the Agreement and has the legal power to do so, and (ii) during the Term, it will perform the Services described in this Agreement in a professional and workmanlike manner, consistent with industry standards.

7.3. Disclaimer of Warranties

EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT AS SET FORTH HEREIN, CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

8. No Professional or Medical Advice.

CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE INTENDED SOLELY FOR ADMINISTRATIVE PURPOSES AND NOT FOR CLINICAL DECISION-MAKING. TO THE EXTENT PROFESSIONAL INFORMATION (FOR EXAMPLE, MEDICAL INFORMATION) IS PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICES, SUCH INFORMATION IS FOR INFORMATIONAL PURPOSES ONLY, SHOULD NOT BE CONSTRUED AS PROFESSIONAL ADVICE, AND IS NOT A SUBSTITUTE FOR INDIVIDUALIZED PROFESSIONAL ADVICE. NEITHER CUSTOMER NOR ANY AUTHORIZED USER OR THIRD-PARTY USER SHOULD ACT OR REFRAIN FROM ACTING SOLELY ON THE BASIS OF ANY CONTENT OR OUTPUT THAT IS INCLUDED ON OR GENERATED BY THE SERVICES OR THAT IS OTHERWISE OBTAINED IN CONNECTION WITH THE SERVICES. USE OF THE SERVICES AND CONTENT OR OUTPUT INCLUDED ON OR GENERATED BY THE SERVICES SHOULD NOT BE CONSIDERED, AND IS NOT A SUBSTITUTE FOR, MEDICAL ADVICE OR EXPERTISE. THE SERVICES DO NOT CONSTITUTE THE PRACTICE OF ANY MEDICAL, NURSING, OR OTHER PROFESSIONAL HEALTHCARE ADVICE, DIAGNOSIS, OR TREATMENT. AGENTAHEALTH MAKES NO WARRANTIES WITH RESPECT TO, AND IS NOT OTHERWISE RESPONSIBLE FOR, THE SERVICES OR PRODUCTS OF ANY OF ITS VENDORS OR THE ACTIONS OR INACTIONS OF ANY OTHER THIRD PARTY.  

CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE SERVICES UTILIZE ARTIFICIAL INTELLIGENCE AND ARE INTENDED TO BE AN ASSISTIVE TOOL FOR QUALIFIED PERSONNEL. ALL OUTPUT FROM OR GENERATED BY THE SERVICES, INCLUDING INFORMATION CONVEYED TO PATIENTS OR USED FOR INSURANCE VERIFICATION, SHOULD BE REVIEWED, APPROVED, AND UPDATED, AS APPLICABLE, BY A QUALIFIED EMPLOYEE OR AGENT OF CUSTOMER PRIOR TO SUCH CONVEYANCE OR USE. CUSTOMER, ITS AUTHORIZED USERS, AND ITS THIRD-PARTY USERS ARE SOLELY RESPONSIBLE FOR ALL DECISIONS (INCLUDING MEDICAL AND INSURANCE DECISIONS) MADE AND ACTIONS TAKEN BASED ON THE USE OF THE SERVICES AND OUTPUT AND FOR THE CLINICAL CARE AND OUTCOMES OF ITS PATIENTS. WE DISCLAIM ALL LIABILITY FOR ANY MISUSE OF THE SERVICE OUTPUT BY CUSTOMER, ITS AUTHORIZED USERS, AND ITS THIRD-PARTY USERS.

9. Limitation of Liability

IN NO EVENT WILL THE AGGREGATE LIABILITY OF AGENTAHEALTH OR ITS AFFILIATES, OWNERS, DIRECTORS, EMPLOYEES, LICENSORS OR VENDORS ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 ABOVE.

IN NO EVENT WILL AGENTAHEALTH OR ITS AFFILIATES, OWNERS, DIRECTORS, EMPLOYEES, LICENSORS OR VENDORS HAVE ANY LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

The limitations under this Section 9 apply to the fullest extent permitted by law. The provisions of this Section 9 allocate the risks under the Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into the Agreement and the pricing for the Services.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND AUTHORIZED USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10. Indemnification

10.1. Indemnification by Us.  

We shall indemnify and defend Customer from and against any claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising from

(a) Agentahealth’s gross negligence, fraud or willful misconduct; and

(b) Agentahealth’s infringement of a U.S. patent, copyright, trademark, or other intellectual property right asserted against Customer by a third party based upon Customer’s use of the Services in accordance with the terms of this Agreement, provided that we shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for us to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim (as long as such settlement releases Customer from any and all liability); and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of any Services is, or in our reasonable opinion is likely to be, enjoined due to the type of infringement specified in this Section 10.1(b), or if required by settlement, we may, in our sole and reasonable discretion: (x) substitute substantially functionally similar products or services or components thereof; (y) procure for Customer the right to continue using the Services or applicable components thereof; or if (x) and (y) are commercially impracticable, (z) terminate this Agreement and refund to Customer any unused, prepaid fees paid by Customer for the period after the effective date of termination. The foregoing indemnification obligation of ours in this Section 10.1(b) shall not apply to the extent that the alleged infringement arises from: (A) any modification of the Services other than by or on behalf of us; (B) access to or use of any Services in combination with any hardware, system, software, network, or other products, materials or services not provided by or on behalf of us or contemplated in the Documentation; (C) use of the Services in breach of this Agreement; or (D) Customer Content. THIS SECTION 10.1(b) SETS FORTH OUR SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

10.2. Indemnification by Customer.

Customer agrees to defend, indemnify and hold harmless us and our affiliates, licensors, and vendors, and our and their respective employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including attorneys’ fees) arising from: (a) Customer’s and any Authorized User’s or Third-Party User’s use of and access to the Services or Output, including any Customer Content or other content transmitted or received by Customer, any Authorized User, or Third-Party User; (b) Customer’s or any Authorized User’s violation of any term of the Agreement, including any breach of Customer’s representations and warranties above; (c) Customer’s, any Authorized User’s, or Third-Party User’s violation of any third-party right, including any right of privacy or intellectual property rights; (d) Customer’s, any Authorized User’s, or Third-Party User’s violation of any Applicable Law, rule or regulation in connection with or arising from this Agreement; (e) Customer Content or any other content that is submitted via Customer’s or any Authorized User’s account, including misleading, false, or inaccurate information; (f) Customer’s, any Authorized User’s, or any Third-Party User’s gross negligence, fraud, or willful misconduct in connection with or arising from this Agreement; or (g) any other party’s access and use of the Services with Customer’s or any Authorized User’s unique username, password or other appropriate security code (provided that such access and use was not our fault).

11. Confidential Information

11.1. Definition

From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (a) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (b) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (w) in the public domain; (x) known to the receiving party at the time of disclosure; (y) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (z) independently developed by the receiving party without use of, reference to, or reliance upon the disclosing party’s Confidential Information.

11.2. Duty of Confidentiality

The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the employees, contractors, and agents of the receiving party and its affiliates, in each case who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information of the other party hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; (ii) where we are the receiving party, to provide Services hereunder; or (iii) to establish a party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each party may disclose the Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.

12. Governing Law, Arbitration, and Class Action/Jury Trial Waiver

12.1. Governing Law.

This Agreement will be governed by the internal substantive laws of the State of New York without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law governing these Terms, the Federal Arbitration Act (9 U.S.C. §§ 1-16) (as it may be amended, “FAA”) governs the interpretation and enforcement of the Arbitration provision below and preempts all state laws (and laws of other jurisdictions) to the fullest extent permitted by Applicable Law. If the FAA is found to not apply to any issue that arises from or relates to the Arbitration provision, then that issue will be resolved under and governed by the law of the U.S. state where you live (if applicable) or the jurisdiction mutually agreed upon in writing by you and us. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

12.2. Arbitration

Read this Section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you may seek relief from us. For any dispute with us, you agree to first contact us at legal@agentahealth.com and attempt to resolve the dispute informally. If we have not been able to resolve a dispute within sixty (60) days of your first contact, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to the Agreement, or the breach or alleged breach thereof by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in New York, New York unless we agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed to prevent us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our confidential information, data security, intellectual property rights or other proprietary rights.

12.3. Venue; Waiver of Jury Trial; Fees

The state and federal courts located in New York, New York will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision above is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

13. Text Messaging and Calls

13.1. General

You may provide us with your telephone number as part of creating your User Account or otherwise. By providing a telephone number, you consent to receiving autodialed or prerecorded calls and/or text messages from us, or on our behalf, at such telephone number. We may place such calls or send such texts to (a) help keep your User Account secure through the use of multi-factor authentication (“MFA”); (b) help you access your User Account if you are experiencing difficulties; and/or (c) as otherwise necessary to service your account or enforce these Terms, our policies, Applicable Law, or any other agreement we may have with you. Part of the MFA identity-verification process may involve AgentaHealth sending text messages containing security codes to the telephone number you provided, and you agree to receive such texts from or on behalf of AgentaHealth.

13.2. Consent to Transactional Communications

You expressly consent and agree to AgentaHealth contacting you with respect to the subject of this Agreement using written, electronic, and/or verbal means, including manual dialing, emails, prerecorded/artificial voice messages, and/or using an automatic telephone dialing system to call or text your mobile/cellular telephone number, as necessary to complete transactions requested by you and to service your account, and as permitted by Applicable Law, in each case even if the phone number is registered on any United States federal and/or state Do-Not-Call/Do-Not-email registry/ies. Message and data rates apply. For purposes of clarity, the text messages described in this paragraph are transactional text messages, not promotional text messages.

13.3. Consent to Promotional Messages

Additionally, we offer you the chance to enroll to receive recurring SMS/text messages from AgentaHealth. You may enroll to receive text messages about User Account-related news and alerts and/or promotional offers and marketing related to AgentaHealth products and/or services. By enrolling in AgentaHealth’s SMS/text messaging service, you agree to receive text messages from AgentaHealth to the mobile phone number provided by you, and you certify that such mobile number is true and accurate and that you are authorized to enroll such mobile number to receive such texts. You acknowledge and agree that the texts may be sent using an automatic telephone dialing system and that message and data rates apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider. Message frequency varies. Consent is not required as a condition of use of the Services. To the extent permitted by Applicable Law, we are not responsible for any delays upon sending or receiving text messages.

13.4. Unsubscribing From Promotional Messages

You may opt out from promotional text messages at any time. To unsubscribe from promotional text messages, text “STOP,” “QUIT,” “END,” “CANCEL,” or “UNSUBSCRIBE” to the number from which the text originated from the mobile device receiving the messages, or reply “STOP,” “QUIT,” “END,” “CANCEL,” or “UNSUBSCRIBE” to any promotional text message you receive from AgentaHealth. You consent that following such a request to unsubscribe, you may receive one (1) final text message from or on behalf of AgentaHealth confirming your request. For help, contact us at contact@agentahealth.com. As per Section 3.4, Customer has responsibility for ensuring compliance with all Applicable Law, including the Telephone Consumer Protection Act, when using the Services.

14. Miscellaneous

14.1. Publicity

We may identify you as a Customer in our promotional materials. We will promptly stop doing so upon receipt of your request sent to contact@agentahealth.com.

14.2. Export Compliance

Each party shall comply with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither party, no subsidiary of either party, no person acting on a party’s behalf or owning 50% or more of its equity securities or other equivalent voting interests, and no Authorized User of Customer is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any country or territory for which the United States has embargoed goods or imposed trade sanctions.

14.3. Third Party Products, Links, and Information

Customer and its Authorized Users may be able to access and use certain third-party services or products through or with its use of the Services (“Third-Party Services”). Third-Party Services may include large-scale, pre-trained Large Language Models (LLMs) and services used by the Customer at its own discretion to read or write data to and from Third-Party Services. For purposes of this Agreement, such Third-Party Services are subject to their own terms and conditions. To the extent there is a conflict between the terms and conditions applicable to any such Third-Party Services and this Agreement, the Third-Party Services terms and conditions shall control. Additionally, all or some portions of the Services may be subject to additional and/or separate terms and conditions, including open-source software licenses and other third-party software license terms and conditions (“Third-Party Components”). To the extent there is a conflict between the terms and conditions applicable to any such Third-Party Components and this Agreement, the Third-Party Components terms and conditions shall control. Notwithstanding anything in this Agreement to the contrary, ALL THIRD-PARTY SERVICES AND THIRD-PARTY COMPONENTS ARE MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND. IF CUSTOMER USES ANY THIRD-PARTY SERVICES, AGENTAHEALTH WILL NOT BE RESPONSIBLE FOR ANY ACT OR OMISSION OF ANY PROVIDER OF SUCH THIRD-PARTY SERVICES. AGENTAHEALTH DOES NOT WARRANT OR PROVIDE DIRECT SUPPORT FOR ANY THIRD-PARTY SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT AGENTAHEALTH WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACTS OR OMISSIONS OF CUSTOMER OR ANY AUTHORIZED USERS IN CONNECTION WITH ANY THIRD-PARTY SERVICES.

FURTHER, IF YOU ACCESS THIRD-PARTY SERVICES AND THIRD-PARTY COMPONENTS FROM THE SERVICES OR SHARE YOUR CUSTOMER CONTENT OR OUTPUT ON OR THROUGH ANY THIRD-PARTY SERVICE OR THIRD-PARTY COMPONENTS, YOU DO SO AT YOUR OWN RISK. YOU EXPRESSLY RELIEVE US FROM ANY AND ALL LIABILITY ARISING FROM YOUR ACCESS TO AND/OR USE OF ANY THIRD-PARTY SERVICE. ADDITIONALLY, YOUR DEALINGS WITH, OR PARTICIPATION IN PROMOTIONS OF, ADVERTISERS FOUND ON THE SERVICES, INCLUDING AS RELATES TO PAYMENT AND DELIVERY OF GOODS, AND ANY OTHER TERMS (SUCH AS WARRANTIES) ARE SOLELY BETWEEN YOU AND SUCH ADVERTISERS. YOU UNDERSTAND AND ACKNOWLEDGE THAT WE WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT RELATING TO YOUR DEALINGS WITH SUCH ADVERTISERS.

14.4. Force Majeure

Aside from payment obligations hereunder (if applicable), neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

14.5. Relationship of the Parties; No Third-Party Beneficiaries

The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third party beneficiaries to the Agreement; a person who is not a party to the Agreement may not enforce any of its terms under any Applicable Law.

14.6. Email Communications

Except as otherwise set forth herein, all notices under the Agreement will be by email, although we may instead choose to provide notice to Customer through the Services. Notices to us must be sent to contact@agentahealth.com. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.

14.7. Modifications

We may change these Terms and the other components of the Agreement in accordance with this Section. If we make a material change to the Agreement, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.

14.8. Waivers

No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

14.9. Severability

The Agreement will be enforced to the fullest extent permitted under Applicable Law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.

14.10. Assignment

Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety, without consent of Customer, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of the assets to which this Agreement primarily relates. Any purported assignment in violation of this Section is void. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.11. Entire Agreement

The Agreement, together with any and all Statement of Works and the BAA by and between the parties in connection with this Agreement, including these Terms constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions in these Terms and any other documents referenced in these Terms, the following order of precedence will apply: (a) BAA, (b) the Statement of Work (if applicable); (c) these Terms; and (d) any other documents referenced in these Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.

14.12. Survival

Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement shall so survive, including Sections 2.3, 3.1(a), 3.2(a), 3.6, 5.4, 6 through 12 and 14.

14.13. Interpretation

For purposes of these Terms, (a) the words "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections refer to the Sections of these Terms; and (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

14.14. Contacting Us

Please also feel free to contact us if you have any questions about the Terms or any other part of the Agreement. You may contact us at legal@agentahealth.com or at our mailing address: One World Trade Center, Suite 49P, New York, NY 10007.

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

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