EXHIBIT A:
SUBSCRIPTION TERMS AND CONDITIONS
GOVERNING THE ORDER
1. Subscription, Fees, and Access.
a. These terms and conditions govern the Subscriber’s subscription for access and use of the SAIVA AI, Inc. suite of services listed in the corresponding Order. The fully executed Subscription Order, the Business Associate Agreement (“BAA”), and these subscription terms and conditions set forth under this EXHIBIT A constitute the “Agreement” between the parties.
b. The Subscription Fee for the Subscription Period is due and payable as stated in the Subscription Order. Subscription is for the entire Subscription Period and is indivisible. Subscription Fees are not refundable except as specifically provided in Sections 7(b) and 10. Without prejudice to any other rights and remedies, if SAIVA AI’s duly rendered and undisputed invoice shall remain unpaid more than thirty (30) days past due, SAIVA AI may, without liability to Subscriber suspend and disable the Service and Subscriber’s account, credentials and access to it, and SAIVA AI shall be under no obligation to provide access to the Service while the subject fees remain unpaid.
c. If any jurisdiction assesses taxes on the Subscription (such as sales, use, value-added, withholding, excise, or any other taxes or government charges, but excluding taxes on the income of SAIVA AI, collectively “Transaction Taxes”), SAIVA AI may require Subscriber to pay the appropriate additional amounts such that SAIVA AI receives the full amount invoiced, without offset or deduction (or if applicable to pay the applicable taxing authority and provide SAIVA AI the applicable certificates and receipts promptly upon request.
d. Subscription will renew for successive annual renewal Subscription Periods unless either party gives notice of non-renewal no later than 30 days before the conclusion of the annual term then in effect. Annual Subscription Fee for renewal periods will be due on the Start Date of the renewal period.
2. Defined Terms. As used herein:
“Confidential Information” means non-public information that either party designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential, including without limitation, all Protected Health Information, the terms of this Agreement, a party’s finances, know-how, trade secrets, all confidential commercial, financial, marketing, business and technical information and data, employee lists and business pricing.
“Data Protection Laws” means all statutes, regulations, judicial decisions, rules and guidelines for the protection of Personal Information or with respect to the collection, use and disclosure of the Visitor Information, issued or promulgated by any competent judicial, legislative or regulatory authority in a jurisdiction to which Subscriber or SAIVA AI is subject, as in effect during the Subscription Period, including without limitation the Health Insurance Portability and Accountability Act of 1996, as amended (HIPAA) and rules and regulations adopted thereunder.
“Protected Health Information” or “PHI” has the meaning set forth in the BAA.
“SAIVA AI Proprietary Rights” means SAIVA AI’s right, title, and interest in and to its intellectual property, including patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), design, look, feel, features, source code and other technology making up the Service and accompanying documentation; and any suggestions, ideas, feedback, improvements, recommendations or other information regarding the Service communicated by Subscriber to SAIVA AI.
“SFTP” means Secure File Transfer Protocol.
3. Proprietary Rights.
SAIVA AI retains all SAIVA AI Proprietary Rights and does not transfer any title, ownership interest or other rights therein other than the access and use rights expressly granted herein. Subscription is non-exclusive and non-transferable. Subscriber shall not without SAIVA AI’s prior express, written permission (I) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service in any way; or (ii) “frame” or “mirror” any content from the Service on any server or wireless or internet-based device. Subscriber shall not modify, translate, reverse engineer, disassemble or decompile any of the SAIVA AI Proprietary Rights, except to the extent such actions cannot be prohibited under applicable law.
4. Personal Health Information; Acceptable Use.
a. Subscriber acts as data controller and is responsible for secure transmission of encrypted PHI to SAIVA AI. Subscriber shall not use the Service in any manner not in accordance with its intended uses or violate or attempt to violate or circumvent any security procedures of the Service. Subscriber shall comply with all applicable Data Protection Laws, including maintaining a privacy policy that permits such collection and disclosure, ensuring it has all necessary rights and, where applicable, all appropriate and valid consents and approvals to share such data with SAIVA AI and to permit use of such data by SAIVA AI for the purposes of providing the Service in accordance with this Agreement and applicable Data Protection Laws. Subscriber shall immediately notify SAIVA AI of any unauthorized use of Subscriber’s account or any other breach of security that is known to or suspected by Subscriber relative to the Service.
b. You represent and warrant that You have all rights, consents, clearances and/or authorization that are required by HIPAA to allow Saiva access and use PHI acquired by You or on behalf of providing Services to Your customers.
c. Subscriber authorizes SAIVA AI to access the transmitted PHI for provision of the Services. SAIVA AI will process PHI only for the purpose of providing the Service in accordance with Subscriber’s documented instructions and applicable Data Protection Laws, and shall maintain its confidentiality in accordance with Subscriber’s instructions and as required for that purpose or by law. For such purposes, SAIVA AI may employ subcontractors for cloud hosting and data analysis functions, who shall be bound by restrictions at least as strict as those set forth herein, and for whose acts, errors or omissions SAIVA AI shall remain responsible to Subscriber. SAIVA AI may collect and use anonymized and aggregated analytical information for statistical and business purposes including service improvement.
d. You shall not use Saiva’s Services in any manner not in accordance with its intended uses or violate or attempt to violate or circumvent any security procedures attendant to access and use of the Services. Saiva shall be under no obligation to provide if Saiva learns Service access and use are not being honored in accordance with the terms and conditions of this Agreement. Saiva may without liability suspend and disable the Your account, credentials, and access if Saiva, AI learns use of the Services are not honored in accordance with the terms and conditions of this Agreement.
5. Confidentiality and Data Security.
a. Each party (as “Recipient”) shall take all necessary precautions to keep secure and confidential all Confidential Information received from the other party (as “Discloser”); refrain from using Confidential Information except for purposes of performing its duties and exercising its rights under this Agreement; disclose the Confidential Information only to Recipient’s staff, professional advisers and subcontractors, on a “need to know” basis for such purposes, who are subject to obligations of confidentiality, in relation to such Confidential Information, which are no less stringent than the Recipient’s obligations of confidentiality under this Agreement; and refrain from disclosing it to any other person outside the Recipient’s organization without the prior written agreement of the Discloser.
b. Section 5(a) shall not impair Recipient’s right to use and disclose otherwise Confidential Information that: (I) Recipient possessed without an obligation of confidence before receiving it from Discloser; (ii) Recipient developed or had developed for it independently without violation of Section 5(a); (iii) Recipient obtains from a third party who has no obligation of confidence as to it; (iv) becomes publicly available through no breach of this Agreement; or (v) Recipient is required to disclose by order of a court or by a government body or agency or by the listing rules of any stock exchange, provided Recipient shall notify Discloser promptly of the requirement, sufficient (if commercially feasible) for Discloser to seek a protective order.
c. SAIVA AI and Subscriber each will maintain throughout the Subscription Period industry-appropriate technical and organizational measures, in compliance with applicable Data Protection Laws, to protect all Personal Information it processes against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing (“Data Breach”). SAIVA AI and Subscriber each will promptly notify the other of any suspected or discovered Data Breach and provide all commercially reasonable cooperation and assistance to the other to investigate, mitigate and remediate it. SAIVA AI also will provide Subscriber all commercially reasonable assistance required by Subscriber to enable Subscriber to respond to, comply with or otherwise resolve any request, question or complaint received by Subscriber from any applicable data protection authority or from any living individual whose Personal Information is processed by SAIVA AI or the Service on behalf of Subscriber, at SAIVA AI’s expense if the Data Breach is caused by SAIVA AI’s negligence or breach of any Data Protection Laws.
6. Termination.
a. Either party may terminate this Agreement upon thirty (30) days written notice to the other of the other party’s material breach of this Agreement if the other party fails to cure the stated material breach during the notice period. Subscriber’s failure to pay SAIVA AI’s duly rendered and undisputed invoice more than thirty (30) days past due shall comprise a material breach.
b. SAIVA AI shall have the right to terminate Subscriber’s subscription and/or this Agreement immediately if Subscriber shall use the Service in any manner that violates any applicable law or intended uses, including (for example and without limitation): (I) hosting or injection of harmful content, such as malicious code or scripts; (ii) advertising or facilitating the transfer of illegal content or products; (iii) misappropriating intellectual property or property rights of others; (iv) unauthorized access or bypass of security restrictions; (v) attacks on assets of SAIVA AI or any of its Subscribers or affiliates; and (vi) intentionally interfering with or disrupting normal service operations. SAIVA AI reserves the right to monitor all usage of the Service for any such activity and to report any illegal activity to appropriate authorities.
c. Upon termination or expiration of this Agreement or the Subscription Period, (I) Subscriber shall remain fully liable for any unpaid charges incurred prior to such expiration or termination; (ii) Subscriber shall immediately cease all transmission of PHI and all use of, and access to, the Service and (to the extent reasonably possible and commercially practicable under the circumstances) delete all copies of any SAIVA AI passwords or access codes, and any related documentation and any other SAIVA AI Proprietary Rights in its possession. SAIVA AI shall have no obligation to retain any PHI or other Subscriber information beyond 60 days after termination. These Subscription Terms (other than Section 3) shall survive termination of the Agreement.
7. SAIVA AI Warranties, Indemnities and Liability.
a. The Service is strictly a data analysis service and does not comprise any medical, health care or business administrative advice. SAIVA AI warrants that under normal use and circumstances the Service will perform with the applicable functionality described at https://www.saiva.ai/product/. The foregoing states the sole obligation of SAIVA AI and remedy of Subscriber for breach of the foregoing warranty.
b. SAIVA AI warrants that the Service does not infringe, violate or misappropriate any intellectual property rights of any third party. SAIVA AI will, at its own cost, indemnify, defend and hold harmless Subscriber, its officers, directors, agents (the “Indemnified Parties”), with counsel of its selection, against the claim of any third party that the Service or the SAIVA AI Proprietary Rights infringe or violate the rights of the third party under any valid United States patent or copyright (a “Claim”), provided, that the Indemnified Parties shall give SAIVA AI prompt notice of the Claim and any written communications received in connection with it, and reasonable cooperation in the investigation, preparation and defense of the Claim. If SAIVA AI reasonably anticipates that the Claim may result in injunction prohibiting SAIVA AI from providing the Service or deploying any SAIVA AI Proprietary Rights pursuant to this Agreement and any Subscription in effect, SAIVA AI shall, at its discretion, either (I) procure the legal right to do so, or (ii) modify the Service and/or SAIVA AI Proprietary Rights so as to make them non-infringing, or (iii) cancel the Subscription and refund to Subscriber the pro rata portion of prepaid Subscription Fees for the unused portion of the Subscription Period. The foregoing states the sole obligation of SAIVA AI and remedy of the Indemnified Parties in connection any Claim.
c. Other than as expressly provided in Sections 7(a)-(b), SAIVA AI makes no representation, warranty, condition or guarantee of any kind whether express or implied as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service and the accompanying documentation and/or the information obtained by the Subscriber through the Service. To the maximum extent permitted by applicable law SAIVA AI disclaims all other warranties, whether express, implied (including by statute, custom or usage, a course of dealing, or common law) including, without limitation, any implied warranty that the Service will meet the Subscriber’s requirements or be fit for the intended purpose or be of satisfactory quality.
d. Notwithstanding anything to the contrary in this Agreement, SAIVA AI’s total aggregate liability to Subscriber arising out of or in connection with this Agreement or any breach or non-performance of it, no matter how fundamental, and whether any claim for recovery is based in contract, tort (including gross negligence), breach of statutory duty or otherwise, shall not exceed the Subscription Fees paid to SAIVA AI for Service under this Agreement for the applicable Subscription Period.
8. Subscriber Indemnity.
Subscriber shall indemnify, defend, and hold harmless SAIVA AI and its officers, directors, employees and agents, from and against judgments, losses, fines, court costs, and reasonable legal fees resulting from Subscriber’s breach of any provision of Sections 3, 4, or 5, or for any claim brought or threatened by a third-party which is premised Subscriber’s use of the Service.
9. Consequential Damages.
Neither Subscriber nor SAIVA AI shall be liable to the other for any indirect, special or consequential loss, including without limitation any loss of profit or revenue, anticipated savings, loss of or damage to goodwill, reputation or business, loss or corruption of software, information or data or cost of substitute software or services, arising out of or in connection with this Agreement or any breach or non-performance of it no matter how fundamental and whether any claim for recovery is based in contract, tort (including by any reason of negligence), for breach of statutory duty or otherwise, provided, that neither party excludes or limits its liability under any provision of this Agreement in respect of any death or personal injury caused by its own gross negligence, fraudulent misrepresentation, or statutory or other liability that cannot be excluded or limited by applicable law.
10. Force Majeure.
SAIVA AI shall not be deemed to be in breach of the Agreement by reason of delay in performance of any of its obligations hereunder due to circumstances beyond its reasonable control such as any “acts of God,” regulations or omissions of governments or their agents and officers, natural disasters, acts of war, insurrection or terrorism, unauthorized network or computer intrusion, or Internet or computer-related viruses or other agents introduced by a third party (“Force Majeure”). If a Force Majeure which materially interferes with the Subscriber’s use of the Service prevails for longer than thirty (30) days, Subscriber shall be entitled to give SAIVA AI notice of termination under Section 6(a) and if SAIVA AI is unable to restore normal provision of the Service during the notice period, upon termination SAIVA AI will refund to Subscriber the pro rata portion of prepaid Subscription Fees for the unused portion of the Subscription Period.
11. Notice.
The parties may give written notice required or permitted hereunder via electronic mail (deemed effective upon email response or confirmation by the recipient), by nationally recognized overnight delivery service (deemed effective upon delivery in the records of the service), or by first class mail, postage prepaid (deemed effective four (4) days after the postmark date), in each case to the address indicated herein or subsequent address provided by the recipient party by notice hereunder. SAIVA AI may give service notices by means of postings on the Subscriber portal.
12. Interpretation and Enforcement.
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors and permitted assigns. Any deviation from or modification, supplement or amendment of these Subscription Terms must be set forth in a separate written addendum duly accepted by Subscriber and SAIVA AI. A party’s failure to enforce and provision of this Agreement shall not constitute its waiver or impairment thereof or of its right to avail itself of remedies for breach thereof. A waiver may only occur by express written permission of an authorized officer of the party to whom the duty is owed. No person who is not a party to this Agreement has any right to enforce any rights or remedies hereunder. Any provision of this Agreement held or determined by a court of competent jurisdiction to be illegal, invalid, or unenforceable in any jurisdiction shall be deemed separate, distinct and independent, and shall be ineffective to the extent of the court’s holding or determination, without invalidating the remaining provisions of this Agreement in that jurisdiction. This Agreement shall be governed by and interpreted under the laws of the State of California, and the parties agree to jurisdiction and venue in the state or federal courts, as applicable, in California. No portion of this Agreement may be assigned or transferred (directly, by operation of law or otherwise) by a party without the other’s prior written consent, provided that no prior written consent shall be required in the case of assignment in connection with acquisition of substantially all of the assets and business of a party and assumption of its obligations hereunder.
13. Counterparts.
This Agreement may be executed in counterparts, each of which will be deemed an original, but both of which together will constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory will be bound until both the parties named below have duly executed or caused to be duly executed a counterpart. Executed copies may be delivered through facsimile transmission and a facsimile copy will be accepted as an original.
14. Electronic Signatures.
The documents that comprise this Agreement are agreed as in effect as of the then governing Effective Data and each acknowledged by the parties as a form of an “Electronic Record” (as such term is defined in the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E SIGN Act”).
SCHEDULE A-1
Subscriber Support; Service Level Credit.
a. Subscriber will securely transmit updated SNF patient data on a twice daily basis via SFTP or enable SAIVA AI to access necessary data with proper EMR login credentials. SAIVA AI will use diligent efforts to process updated patient data and return updated predictions daily (within 24 hours after receiving the updated SNF patient data from Subscriber) via encrypted mail service (Paubox unless otherwise mutually specified in writing). SAIVA AI reserves the right to make changes to the Service that SAIVA AI deems necessary or useful without materially diminishing the functionality of the Service as used by Subscriber.
b. For each facility, The Service will achieve Report Availability (as defined below) of at least 350 days during each 365 days of the Subscription Term.
For each facility, “Report Availability” means the number of days the Service is sent to Subscriber via email between 6 AM and 8 AM (local time) every day, excluding downtime resulting from (a) scheduled maintenance, (b) events of Force Majeure, (c) malicious attacks on the system, (d) issues associated with the Customer’s computing devices, databases, local area networks or internet service provider connections, or (e) inability to deliver services because of acts or omissions of Customer or any user. SAIVA AI reserves the right to take the Service offline for scheduled maintenance for which Customer has been provided reasonable notice and SAIVA AI reserves the right to change its maintenance window upon prior notice to Customer.
If SAIVA AI fails to meet System Availability in the year, upon written request by Customer within 30 days after the end of the year, SAIVA AI will issue a credit in Customer’s next invoice in an amount of 1% for each day SAIVA AI missed its Service Guarantee up to a maximum of the Customer’s fee for the affected Services.
If the yearly fee has been paid in advance, then at Customer’s election SAIVA AI shall provide a credit to Customer to be used for term extension. The remedy stated in this paragraph is Customer’s sole and exclusive remedy for interruption of Services and SAIVA AI’s failure to meet System Availability.
THIS SCHEDULE A-1 IS NOT AVAILABLE FOR THE SERVICE WHEN ACCESSING AND USING IT BASED ON ANY DATA-SCRAPING METHOD OR PROCESS. TIMELY DELIVERY OF SERVICES IS NOT GUARANTEED AND SAIVA AI DISCLAIMS ANY OBLIGATIONS WITH RESPECT THERETO.