WEAVE COMMUNICATIONS, INC. - CUSTOMER TERMS AND CONDITIONS OF SERVICE
BY CHECKING THE BOX TO AGREE TO THE FOLLOWING WEAVE COMMUNICATIONS, INC. - CUSTOMER TERMS AND CONDITIONS OF SERVICE (THE “SERVICE TERMS“) AND THEN CLICKING THE "ACCEPT" BUTTON, YOU AGREE TO BE BOUND BY THIS AGREEMENT AND THE OTHER TERMS AND CONDITIONS SPECIFIED HEREIN.
The Effective Date of this Agreement shall be the date on which you click on “Accept” below. You are referred to as “Customer” or "you" for purposes of this Agreement, which includes any of your affiliates or agents using the Weaves Services or names on any Order (as defined below); Customer and Weave are each referred to herein individually as a "Party" and collectively as the "Parties."
Terms and Conditions of Service
These Service Terms, together with any order form or online order submitted by you (each, an “Order”), and any exhibits or attachments thereto or hereto, comprise the entire agreement (the “Agreement”) by and between Weave and the Customer identified in the Order concerning Customer’s use, and Weave’s provision, of the software and the services identified below. If you are an individual and are entering into this Agreement on behalf of an entity, you represent and warrant that you have the authority to bind such entity to all of the terms and conditions of this Agreement.
The Services and Software
The “Services” include the provision of an integrated voice over Internet protocol phone system (VoIP) that is designed to work with the Software and Customer’s CRM or patient records system to automate certain aspects of its customer contact activities.
A. The Services include local and long‐distance service. All phone features and settings are configured through Weave. Any and all features of the Services are limited to Weave’s PBX, hosted on their secured servers. In the event of a needed feature or setting, Weave will attempt to provide information and open a development ticket. Customer can request regular updates regarding the status. Features will include caller ID, hold music, unlimited inbound and outbound calls, and other features that Weave may from time to time provide.
All costs for phone usage are the responsibility of Customer, including but not limited to any international calls placed. Weave does not assume any liability for calls placed or received, and does not guarantee any level of service due to all third party variables. Weave may assist Customer in coordinating with IT professionals and Internet Service Providers (ISP) to help facilitate the efficient use of the Services and Software. Customer agrees to follow Weave’s networking suggestions in maintaining a sustainable backbone for the VoIP system including, but not limited to, minimum upload and download speeds, specific ISPs, routers, switches, any other similar or related matters.
B. The “Software” is a remotely hosted software application that enables Customer to integrate its CRM or patient management software with its phone system in order to provide automatic voice and text messages and other communications with its customers or patients. From time to time, Weave may offer different versions of the Services and Software. Customer is entitled to access and use only those features included in the version to which Customer has a current subscription. As used herein, “Content” means all content, data or information in any form that is uploaded or accessed through the Software by Customer or on Customer’s behalf. The Services do not include Customer’s Content. By using the Software and services provided as part of the Services, Customer may make choices about the presentation, management and distribution of the Content. Customer may change Customer’s selections as permitted by the Services. In all cases, however, Customer shall be fully responsible for all communications sent by or through the use of the Services.
All information extracted from the Customer’s network, software and systems (the Customer’s “Practice Management System”), accessed and used by Weave, shall be stored remotely on Weave’s servers, subject to the provisions set forth below under “Compliance with Regulations.” Customer shall be solely responsible for protecting information stored on Customer’s own servers and computer systems. Any additional information within the Weave Software is encrypted and transferred to secured servers where it is stored. This includes, but is not limited to, notes, text messages, and reminders.
C. All texting features provided by Weave are expressly designed for open communication with Customer’s patient database or potential patients of that business. Weave owns all numbers used for texting and leases these numbers to the Customer. Because of the unique true‐text feature provided by Weave, Customer agrees not to send bulk texts without the intent or design of initiating a conversation, and Customer shall otherwise be solely responsible to ensure that its communications with its patients and others comply with all applicable and federal law. In certain situations, Customer’s use can result in the assigned number being blacklisted by all receiving cell phone carriers. The decision to blacklist is not made by Weave, but by the receiving carrier. In this event, a new number can be issued by Weave, which will include a $25.00 processing fee. Weave assumes no responsibility for any lost communication in the event of a transition between numbers to or from the Services, and is under no obligation to find a like number, including area code, or notify Customer’s patients of the change.
Access to the Services
Access to Customer’s Account(s) shall be enabled by use of username(s) and password(s) (“Credentials”) selected by Weave and changed by Customer. Except where Weave has actual notice of loss, theft or unauthorized use of Customer’s Credentials (i) Customer is responsible for all activity occurring in Customer’s Account(s) and (ii) Weave shall have the right, without further inquiry, to rely on the provision of Customer’s Credentials as sufficient to authenticate Customer’s use of the Weave Service.
Letter of Agency
Customer shall execute a Local and Long Distance Commercial Order Request Letter of Agency reasonably acceptable to Weave.
Compliance with Regulations
A. Terms. The following terms have the following definitions as used in this Agreement:
1. Business Associate. For purposes of this Section, “Business Associate” shall generally have the same meaning as theterm “business associate” in 45 C.F.R. §160.103 and, in reference to the party to thisagreement, shall mean Weave.
2. CoveredEntity. “CoveredEntity” shallgenerallyhavethesamemeaningastheterm“covered entity” in 45 C.F.R. §160.103 and, in reference to the party to this Agreement, shall mean Customer.
3. Electronic Protected Health Information. “Electronic Protected Health Information” shallhavethesamemeaningastheterm“electronicprotectedhealthinformation” in45C.F.R. §160.103, limited to information that Business Associate creates, accesses, receivesor maintains for or on behalf of Covered Entity.
4. HIPAA Rules. “HIPAA Rules” shall mean the Privacy Rule, the Security Rule, the BreachNotification Rule, and the Enforcement Rule set forth in 45 C.F.R. Part 160 and Part 164.
5. Individual. “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. §160.103andshallincludeapersonwhoqualifiesasapersonalrepresentativeinaccordance with 45 C.F.R. §164.502(g).
6. PrivacyRule. “PrivacyRule” shallmeantheStandardsforPrivacyofIndividuallyIdentifiable Health Information set forth in 45 C.F.R. Part 160 and Part 164, Subparts Aand E.
vii. ProtectedHealthInformation. “ProtectedHealthInformation” shallhavethesamemeaning as the term “protected health information” in 45 C.F.R. §160.103, limited to theinformationcreatedorreceivedbyBusinessAssociatefromoronbehalfofCoveredEntity.
7. Required By Law. “Required By Law” shall have the same meaning as the term “requiredby law” in 45 C.F.R. §164.103.
8. Secretary. “Secretary” shall mean the Secretary of the Department of Health and HumanServices or his or her designee.
9. SecurityRule. “SecurityRule” shallmeantheStandardsforSecurityofElectronicProtected Health Information set forth in 45 C.F.R. parts §160 and §164, subparts A andC.
10. UnsecuredProtectedHealthInformation. “UnsecuredProtectedHealthInformation” shall have the same meaning as the term “unsecured protected health information” in 45C.F.R. §164.402, limited to such information accessed, created, received or maintained byBusiness Associate.
B. Obligations and Activities of Weave.
1. Business Associate agrees to not use or disclose Protected Health Information other thanas permitted or required by this Agreement or as Required By Law.
2. Business Associate agrees to use appropriate safeguards, and comply with Subpart C of45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent useordisclosureoftheProtectedHealthInformationotherthanasprovidedforbythisAgreement.
3. BusinessAssociateagreestoreporttoCoveredEntityanyuseordisclosureoftheProtected Health Information not provided for by this Agreement of which it becomesaware, including breaches of Unsecured Protected Health Information as required by 45C.F.R. §164.410. Business Associate also agrees to report to Covered Entity any securityincident, including all data breaches whether internal or external, related to ProtectedHealth Information of which Business Associate becomes aware.
4. Business Associate agrees to ensure that any agent, including a subcontractor, to whom itprovides Protected Health Information received from, or created or received by Business
Associate on behalf of, Covered Entity agrees to the same restrictions and conditions thatapply through this Agreement to Business Associate with respect to such information.
5. Business Associate agrees to provide access, at the request of Covered Entity and duringnormal business hours, to Protected Health Information in a Designated Record Set toCovered Entity or, as directed by Covered Entity, to an Individual in order to meet therequirements under 45 C.F.R. §164.524, provided that Covered Entity delivers to BusinessAssociate a written notice at least five (5) business days in advance of requesting suchaccess. ThisprovisiondoesnotapplyifBusinessAssociateanditsemployees, subcontractors and agents have no Protected Health Information in a Designated RecordSet of Covered Entity.
6. Business Associate agrees to make any amendment(s) to Protected Health Information ina Designated Record Set that the Covered Entity directs or agrees to pursuant to 45 C.F.R. §164.526, at the request of Covered Entity or an Individual. This provision does not applyif Business Associate and its employees, subcontractors and agents have no ProtectedHealth Information from a Designated Record Set of Covered Entity.
7. Unless otherwise protected or prohibited from discovery or disclosure by law, BusinessAssociate agrees to make internal practices, books and records, including policies andprocedures, relating to the use or disclosure of Protected Health Information receivedfrom, or created or received by Business Associate on behalf of, Covered Entity availableto the Secretary for purposes of the Secretary determining Covered Entity’s compliancewith the HIPAA Rules. Business Associate shall have a reasonable time within which tocomply with requests for such access and in no case shall access be required in less thanfive (5) business days after Business Associate’s receipt of such request, unless otherwisedesignated by the Secretary.
8. BusinessAssociateagreestomaintainnecessaryandsufficientdocumentationofdisclosures of Protected Health Information as would be required for Covered Entity torespond to a request by an Individual for an accounting of such disclosures, in accordancewith 45 C.F.R. §164.528.
9. OnrequestofCoveredEntity, BusinessAssociateagreestoprovidetoCoveredEntitydocumentationmadeinaccordancewiththisAgreementtopermitCoveredEntitytorespond to a request by an Individual for an accounting of disclosures of Protected HealthInformationinaccordancewith45C.F.R. §164.528. BusinessAssociateshallhaveareasonable time within which to comply with such a request from Covered Entity, and inno case shall Business Associate be required to provide such documentation in less thanfive (5) business days after Business Associate’s receipt of such request.
10. Except as provided for in this Agreement, in the event Business Associate receives anaccess, amendment, accounting of disclosure, or other similar request directly from anIndividual, Business Associate will redirect the Individual to the Covered Entity.
11. To the extent Business Associate carries out one or more of Covered Entity’s obligationsunderSubpartEof45C.F.R. Part164, BusinessAssociateagreestocomplywiththe requirementsofSubpartEthatapplytoCoveredEntityintheperformanceofsuchobligations.
C. Permitted Uses and Disclosures by Weave.
1. Except as otherwise limited by this Agreement, Business Associate may make any uses and disclosures of Protected Health Information necessary to perform the Services for andonbehalfofCoveredEntityinaccordancewiththetermsoftheUnderlyingAgreement and to otherwise meet its obligations under this Agreement, if such uses ordisclosures would not violate the Privacy Rule if done by Covered Entity.
2. ExceptasotherwiselimitedinthisAgreement, BusinessAssociatemayuseProtectedHealthInformationforthepropermanagementandadministrationoftheBusinessAssociate or to carry out the legal responsibilities of the Business Associate.
3. Except as otherwise limited in this Agreement, Business Associate may disclose ProtectedHealthInformationforthepropermanagementandadministrationoftheBusinessAssociate or to carry out the legal responsibilities of Business Associate, provided thedisclosuresareRequiredByLaworBusinessAssociateobtainsreasonableassurancesfrom the person to whom the information is disclosed that it will remain confidential andused or further disclosed only as Required By Law or for the purpose for which it wasdisclosed to the person, and the person notifies the Business Associate of any instancesof which it is aware in which the confidentiality of the information has been breached.
4. ExceptasotherwiselimitedinthisAgreement, BusinessAssociatemayuseProtectedHealthInformationtoprovideDataAggregationservicesrelatingtothehealthcareoperations of Covered Entity as permitted by 45 C.F.R. §164.504(e)(2)(i)(B).
5. Business Associate may use or disclose Protected Health Information as required by law.
6. Business Associate may use Protected Health Information to deYidentify such ProtectedHealth Information in accordance with 45 C.F.R. 164.514(a) – (c).
7. Business Associate shall not access, use or disclose more than the minimum necessaryProtected Health Information to perform or fulfill the intended permissible purposes asset forth in this Agreement.
D. Obligations of Covered Entity.
1. Covered Entity shall notify Business Associate of any limitation(s) in its notice of privacypracticesofCoveredEntityinaccordancewith45C.F.R. §164.520, totheextentthatsuch limitation may affect Business Associate’s use or disclosure of Protected HealthInformation.
2. CoveredEntityshallnotifyBusinessAssociateofanychangesin, orrevocationof, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate’s use or disclosure of Protected HealthInformation.
3. Covered Entity shall notify Business Associate of any restriction to the use or disclosure ofProtected Health Information that Covered Entity has agreed to in accordance with 45C.F.R. §164.522, to the extent that such restriction may affect Business Associate’s use ordisclosure of Protected Health Information.
A. Restrictions on Use. Customer covenants that it will not (i) use the Services in any illegal or unlawful manner or for any illegal or unlawful purpose or (ii) perform any act which interferes with or disrupts the Services. Weave will not review or screen Content transmitted through the Services for compliance with this Agreement or applicable law, and Weave shall have no obligation to do so, provided, however, that in addition to any other rights Weave may have, Weave reserves the right to suspend Customer’s access to and/or use of the Services to the extent that Weave determines, in good faith, that such suspension is necessary to comply with applicable law or to prevent significant harm to any end user or the Services; provided further, however, that in such event, Weave shall use commercially reasonable efforts to suspend only that portion of the Services as are reasonably necessary to prevent the occurrence or continuation of such violation and/or harm.
B. Obligation to Pay. Customer shall pay Weave the fees set forth in this Agreement, including any applicable Order, exhibit, attachment or amendment to the Agreement, in accordance with the payment terms set forth herein. Customer shall be responsible for and shall pay any applicable sales, use or other taxes or duties, tariffs or the like applicable to Customer’s Order (except for taxes on Weave’s income). All payments shall be made without deduction for withholding taxes.
C. Monthly Fees. Customer shall pay $449.00 base price per month. Customer shall also pay a monthly fee of $15 for each phone device that has telephone service provided through Weave. Any phones beyond 10 are only billed $10 per phone per month. Customer will be allowed three phone numbers on each individual account at no additional charge. If Customer exceeds three phone numbers, Customer agrees to pay an additional $5/number/month. Customer agrees to pay any international call fees that may accrue for international calls made on their system if offered through the Service. Text Messaging is unlimited. Hardware will be provided at no initial cost (unless upgrading to a preferred model of phone). In the event that Customer cancels service within 36 months of their first bill, Customer agrees to return the hardware Weave provided at their own expense. If Customer refuses to return the hardware within 60 days of the canceled date of service, Weave retains the right to bill Customer the full MSRP price to replace the hardware. Hardware must be in working condition taking into account normal ware and tare. If Customer has been a customer for 36 months or greater, the hardware is the sole property of the Customer and does not need to be returned. For the system as a whole, applicable taxes and surcharges may apply.
D. Payment Due Date, Payment Method, and Failure to Pay. Payment is due on the 1st of every month, unless otherwise agreed in writing by Weave. Payment will be charged to a debit or credit card that Customer has provided to Weave. By signing this document, Customer authorizes Weave to debit the card monthly at the agreed amount and, to the extent allowed by applicable law, forfeits the right to charge back and/or dispute the monthly charges. The charge will process as a recurring monthly charge where a sales receipt will be sent via email to an email address for such communication provided by Customer. Checks are not an acceptable form of payment and will be returned to Customer. Payment is considered late if not paid within five days of the applicable payment date. Weave will attempt to contact and rectify any outdated, canceled, or declined cards. Customer will be considered delinquent if payment has not been collected via debit or credit card within fifteen (15) days of the applicable payment date. After such date, Customer will receive a message at the email address provided by Customer notifying of service disconnection upon failure to pay. Customer will receive like messages in increments as Weave decides, but the duty to pay is the sole responsibility of Customer. Failure to pay in full within twenty five (25) days of the applicable payment date will result in disconnection of Services. In addition to providing payment in full to restore service, an additional $100.00 fee shall be applied by Weave and paid by Customer to restore service. If Weave pursues collection efforts against Customer due to Customer’s failure to pay fees due under this Agreement, Customer shall pay Weave’s reasonable costs of collection, including any attorneysfees related thereto.
Weave agrees to (a) operate and make available to Customer the Weave Service in accordance with this Agreement; and (b) perform any other obligations expressly identified in this Agreement.
The initial term of this Agreement shall commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, shall remain in effect on a month‐to‐month basis until cancelled by either party with at least thirty (30) days advance notice, provided, however, that if Customer cancels the Services at any point, Customer will be required to pay for the Services until the later of the end of the applicable calendar month or use of the Services (the “Term”). The “Effective Date” of this Agreement shall be the date specified in Customer’s Order or, if such Order was submitted online, the date Customer submits the online Order.
Unless otherwise prohibited by law, either party may terminate this Agreement: (i) As set forth in the section “Term” above, (ii) if the other party is adjudicated bankrupt or otherwise seeks to avoid its performance obligations under applicable bankruptcy or insolvency laws or (iii) upon the occurrence of a material breach of this Agreement by the other party if such breach is not cured within 30 days after written notice identifying the breach. In the event of a termination or expiration of this Agreement, all Services provided and licenses granted under this Agreement shall terminate automatically. Upon an early termination of this Agreement for any reason (other than a termination resulting from a material, uncured breach of this Agreement by Weave), all fees and expenses payable under this Agreement shall become immediately due and payable.
UponterminationofthisAgreementforanyreason, Weave, with respect to Protected Health Information received from Customer or created, maintained, or received by Weave on behalf of the Company, shall:
A. Retain only that Protected Health Information which is necessary for Weave to continue its proper management and administration or to carryout its legal responsibilities;
B. ReturntoCustomeror, ifagreedtobyCustomer, destroytheremaining Protected Health Information that Weave still maintainsin any form;
C. Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information to preventuse or disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Weave retains the ProtectedHealth Information;
D. NotuseordisclosetheProtectedHealthInformationretainedbyWeaveotherthanforthepurposesforwhichsuchProtectedHealthInformation was retained and subject to the same conditions set forth in thisAgreement and applicable prior to termination; and
E. ReturntoCustomeror, ifagreedtobyCustomer, destroytheProtectedHealthInformationretainedbyWeavewhenitisnolongerneededbyWeaveforitspropermanagementandadministration or to carry out its legal responsibilities.
As between the parties, Weave owns all right, title and interest in and to the Services and the Software. This Agreement does not convey any ownership interest in or to the Software to Customer, but only a limited license that is revocable as set forth in this Agreement. As between the parties, Customer owns all right, title and interest in and to Customer’s Content. Any purchased hardware is the property of the Customer and will not be refunded by Weave.
A. License to Use the Weave Service. Weave hereby grants Customer a limited, revocable (as set forth in this Agreement), non‐transferable (except as provided in section title “General” (b) and (c)), non‐exclusive, worldwide license to use the Weave Service and Software. All rights not expressly granted to Customer are reserved by Weave and its licensors. Except as expressly permitted by Weave or to the extent expressly authorized, Customer shall not: (a) sublicense, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software or Services (other than to their respective patients) or any part thereof in any way; or (b) modify or make derivative works based upon the Services
or reverse engineer, decompile or disassemble the Weave Service. The parties expressly agree that Weave does not hereby take legal title to any Content supplied by Customer.
B. License to Feedback, Suggestions or Recommendations; Rights to Certain Information. Customer hereby grants Weave an unlimited, irrevocable, perpetual, transferable, non‐ exclusive, royalty‐free, worldwide license to use and/or incorporate into the Services any feedback, suggestions and/or recommendations provided to Weave by Customer regarding the Services. Further, by entering this Agreement and using the Services, Customer agrees that Weave may gather and use in any manner desired information describing the habits, usage patterns or demographics of Customer and its patients (“Usage Information and Statistics”). Customer acknowledges and agrees that Weave will exclusively own all Usage Information and Statistics and have the right to use such Usage Information and Statistics in its sole discretion.
Representations and Warranties
A. The Services. Weave represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions as are necessary to perform its obligations hereunder, exercise its rights hereunder and to grant the licenses granted by it under this Agreement and (ii) the Software and Services, as used by Customer in accordance with this Agreement, do not, and shall not, infringe, violate or misappropriate any third party’s rights.
B. The Content. Customer represents and warrants that (i) it either owns fully and outright or otherwise possesses and has obtained all rights, approvals, licenses, consents and permissions necessary to perform its obligations and exercise its rights hereunder, and (ii) the Content and its use through the Services, as enabled by Customer, directly or indirectly, does not, and shall not, infringe, violate or misappropriate any third party’s rights.
Each party agrees to indemnify, defend and hold harmless the other party and such other party’s officers, employees, directors, agents, affiliates, subsidiaries, successors and assigns from and against any and all third party claims, damages, liabilities, loss, government fines, costs and expenses (including reasonable attorney’s fees and litigation expenses) (each a “Claim”), arising out of or related to any alleged or actual breach of any representation, warranty or covenant made by the indemnifying party in this Agreement. The indemnification obligations in this section are conditioned upon: (a) prompt written notice by the indemnified party to the indemnifying party of any claim, action or demand for which indemnification is claimed; (b) the opportunity to have reasonable control of the defense by the indemnifying party, with counsel reasonably acceptable to the indemnified party, and settlement thereof by the indemnifying party; and (c) such reasonable cooperation by the indemnified party in the defense as the indemnifying party may request, all provided, however, that failure to provide reasonable notice, control and/or cooperation shall not relieve the indemnification obligations hereof unless the party seeking to avoid such obligations can demonstrate material prejudice to the defense of a Claim caused thereby. Notwithstanding anything to the contrary contained herein, the indemnifying party shall not, without the prior written consent of the indemnified party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of such Claim against the indemnified party.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WEAVE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND TO CUSTOMER, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WORKMANLIKE QUALITY, NON‐INFRINGEMENT, TITLE, SUITABILITY, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE OR THAT THE WEAVE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE WEAVE SERVICE IS PROVIDED ON AN “AS IS” BASIS ONLY. NO ADVICE OR INFORMATION OBTAINED BY CUSTOMER FROM WEAVE SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
LIMITATIONS/EXCLUSIONS OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THE PERFORMANCE OR FAILURE OF PERFORMANCE OF ANY PROVISION OF THIS AGREEMENT (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), SUCH AS, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES (OR AMOUNTS) IN EXCESS OF THE GREATER OF (A) $10,000 OR (B) A SUM EQUAL TO THE TOTAL PAYMENTS MADE BY CUSTOMER TO WEAVE IN THE PRECEDING SIX MONTHS. NOTWITHSTANDING ANY OF THE FOREGOING IN THIS ENTIRE SECTION, THE LIMITATIONS SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE CASE OF (I) BREACHES OF SECTION TITLED “RESTRICTIONS ON USE”, OR (II) FEES PAYABLE BY CUSTOMER UNDER THIS AGREEMENT.
Each party agrees not to disclose the other party’s Confidential Information without its prior written consent. “Confidential Information” includes, without limitation: (i) all intellectual property; (ii) financial information (including pricing) and business information; (iii) Customer’s patient and customer information and records; and (iv) any other information designated in writing as “Confidential.” Confidential Information does not include (A) Content; (B) information that has become publicly known through no breach by Customer or Weave of these confidentiality obligations; (C) information that is independently and lawfully developed or obtained without access to Confidential Information, as evidenced in writing; or (D) information required to be disclosed by law.
Weave shall have the right to identify Customer as a customer and Customer shall have the right to identify Weave as the provider of the Weave Service.
All notices under this Agreement must be in writing and delivered either by hand, e‐mail, certified mail (return receipt requested, postage pre‐paid) or nationally recognized overnight delivery service (all delivery charges pre‐paid) and addressed, if to Customer, to the contact identified in Customer’s most recent Order and, if to Weave, to Weave Communications, 2600 W Executive Pkwy #120, Lehi, UT 84043 or to such other address as Weave may identify from time to time.
(a) Independent Contractors: Weave and Customer are independent contractors under this Agreement and nothing herein shall be construed to create a partnership, joint venture or agency relationship; (b) Assignment: Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other; (c) Merger or Acquisition: Notwithstanding subsection (b) above, each party may assign this Agreement without the other party’s prior written consent in the case of a merger, acquisition or other change of control, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; (d) Governing Law: This Agreement shall be governed by the laws of the State of Utah applicable to contracts entered into and wholly to be performed therein; (e) Forum Selection: Any and all disputes arising out of or related to this Agreement or performance hereof, shall be brought in the Federal or state courts located in Salt Lake County, Utah and the parties hereby agree to the exclusive jurisdiction thereof for such purposes and waive any objection thereto; (f) Jury Trial Waiver: Customer and Weave each waive any right to a jury trial in connection with any and all disputes arising out of or related to this Agreement; (g) Attorney’s Fees: In the event of any dispute arising out of or related to this Agreement, the attorney’s fees of the prevailing party in any such dispute shall be paid by the other party; (h) Effect of Waivers: The waiver by either party of a breach or a default of any provision shall not be construed as a waiver of any succeeding breach of the same or any other provision; (i) Survival: All terms of this Agreement which by their nature extend beyond the termination of this Agreement, remain in effect until fulfilled and apply to respective successors and assigns; (j) Counterparts; Delivery; Acceptance: This Agreement may be executed in counterparts, all of which are considered one and the same agreement, and becomes effective when one or more counterparts have been signed by each of the parties and delivered to the other party or upon Customer’s submission of an online Order (whichever occurs first). Delivery by facsimile or e‐ mail and online acceptance are all as effective as physical delivery of an originally executed copy hereof; (k) Integration; Amendment: This Agreement constitutes the entire understanding of the parties hereto with respect to the matters contemplated hereby, supersedes all previous agreements between the parties concerning the subject matter hereof and cannot be amended except by a writing signed by authorized representatives of both parties; (l) No Reliance: No party hereto has relied on any statement, representation or promise of any party or representative thereof except as expressly set forth in this Agreement; and (m) Purchase Orders/Instruments: Any instruments, including purchase orders, work orders and acknowledgments, issued by Customer in connection with this Agreement (“Instruments”) shall not add to, supersede or conflict with, the terms of this Agreement and in the event any term of an Instrument purports to add to, or conflicts with, any term of this Agreement, such term of the Instrument shall be void and without effect.