These Terms of Service (the “Terms”) form a binding agreement between Sandy AI, Inc., d/b/a Sandy Health, a Delaware corporation (“Sandy Health,” “we,” “us,” or “our”), and the customer that accepts these Terms or that executes an Order Form referencing these Terms (“Customer,” “you,” or “your”). Sandy Health and Customer are each a “Party” and together the “Parties.” These Terms govern Customer’s access to and use of the Platform and the other Solutions described in an Order Form.

PLEASE READ THESE TERMS CAREFULLY. SECTION 13 CONTAINS A BINDING ARBITRATION PROVISION AND A CLASS-ACTION WAIVER THAT GOVERN HOW DISPUTES BETWEEN THE PARTIES ARE RESOLVED. SECTION 9 DISCLAIMS CERTAIN WARRANTIES AND SECTION 11 LIMITS SANDY HEALTH’S LIABILITY.

By executing an Order Form that references these Terms, by clicking or otherwise indicating acceptance, or by accessing or using the Platform or any Solution, Customer acknowledges that it has read, understands, and agrees to be bound by these Terms and the Agreement. If an individual is accepting on behalf of an entity, that individual represents that they are authorized to bind the entity, in which case “Customer” refers to that entity. If Customer does not agree, it may not access or use the Platform or any Solution.

The Platform and Solutions are intended solely for use by health care providers, health plans, health care clearinghouses, and their authorized business associates and personnel (each, as applicable, a Covered Entity or business associate under HIPAA). The Platform and Solutions are business tools, are not intended for use by patients or the general public, and are not directed to consumers.

1.  AGREEMENT STRUCTURE; ACCEPTANCE; MODIFICATIONS

1.1  The Agreement.  The agreement between the Parties consists of, in descending order of precedence: (a) the Business Associate Agreement between the Parties (the “BAA”), solely with respect to the use and disclosure of Protected Health Information; (b) each Order Form executed by the Parties; and (c) these Terms, together with all policies expressly incorporated by reference herein, including the Privacy Policy available at https://sandyhealth.com/privacy (collectively, the “Agreement”). Capitalized terms used but not defined in an Order Form have the meanings given in these Terms, and capitalized terms used but not defined in these Terms have the meanings given in Section 15 (Definitions).

1.2  Order Forms; Special Terms.  The specific Solutions, fees, subscription term, and any special or negotiated terms applicable to Customer are set forth in one or more Order Forms. Each Order Form is governed by and incorporates these Terms. Any special terms negotiated by the Parties will be documented in the applicable Order Form, and to the extent an Order Form expressly conflicts with these Terms, the Order Form controls solely for that Order Form.

1.3  Order of Precedence.  In the event of a conflict among the documents comprising the Agreement, the order of precedence set forth in Section 1.1 controls; provided that (a) the BAA controls only with respect to the use and disclosure of Protected Health Information, and (b) for all other matters, including limitations of liability, indemnification, and dispute resolution (other than disputes arising under the BAA, which are governed by the BAA), the Order Form and then these Terms control in that order.

1.4  Acceptance; Eligibility; Authority.  Customer represents and warrants that it is a Covered Entity or business associate (or is acting on behalf of one), that it and its Users will access and use the Solutions only for lawful health care operations and related business purposes, and that the person accepting the Agreement is authorized to bind Customer. Customer is responsible for all activity under its account and for its Users’ compliance with the Agreement.

1.5  Modifications to these Terms.  Sandy Health may modify these Terms from time to time. The version of these Terms in effect as of an Order Form’s effective date applies to that Order Form for its then-current term, except that Sandy Health may update these Terms during a term: (a) as required to comply with applicable law or with the requirements of a Third-Party Solution provider; (b) for changes that do not materially diminish Customer’s rights or materially increase Customer’s obligations; or (c) effective as of the start of the next Renewal Term. Sandy Health will post updated Terms at https://sandyhealth.com/terms, update the “Last Updated” date, and provide reasonable notice of material changes by email or through the Platform. Customer’s continued use of the Solutions after an update’s effective date constitutes acceptance. If Customer objects to a material change that takes effect during the then-current term and that is not required by law, Customer’s sole remedy is to terminate the affected Order Form on written notice within thirty (30) days after the notice of change, and Sandy Health will refund any prepaid, unused fees for the terminated remainder of the term.

2.  THE SOLUTIONS

2.1  Provision of the Solutions.  Sandy Health will provide the Solutions described in the applicable Order Form(s) and Documentation. Customer acknowledges that continuous updates, upgrades, enhancements, improvements, and modifications to the Solutions are necessary for their performance, and Customer directs Sandy Health to Process Customer Data to perform those activities in support of Customer’s health care operations, subject to the BAA and applicable law. Sandy Health has and will retain sole control over the operation, provision, maintenance, and management of the Solutions.

2.2  Verification of Benefits Services.  Where included in an Order Form, the Solutions provide verification of benefits (“VOB”) services, which may include, as applicable: retrieval and validation of patient insurance eligibility information; identification of coverage status, benefit limitations, and financial-responsibility indicators (such as copays, deductibles, and coinsurance); identification of incomplete, inconsistent, or missing payer information; and documentation and delivery of VOB results via the Platform. VOB results are provided to support Customer’s operations, are subject to the disclaimers in Section 9, and do not constitute a guarantee of coverage or payment. Customer remains responsible for confirming coverage, benefits, and payment with the applicable payer.

2.3  Access and Use.  During the term of the applicable Order Form, and subject to Customer’s compliance with the Agreement and payment of all applicable fees, Sandy Health grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use: (a) the Solutions, solely for use by Users in accordance with the Agreement, the Documentation, and applicable law; and (b) the Documentation, solely for Customer’s internal business purposes in connection with its use of the Solutions. Customer is responsible for all access to and use of the Solutions and Documentation by its Users.

2.4  Restrictions on Access and Use.  The rights granted in the Agreement are subject to the following:

(i) Users must be physically located within the United States when accessing or using the Solutions; provided that the Solutions may be accessed or used by Users located outside the United States only where such access or use does not relate to the creation, receipt, maintenance, transmission, or disclosure of PHI;

(ii) Customer may not provide services similar to the Solutions to any Third Party or non-Affiliate, except as expressly permitted in the Agreement; and

(iii) Customer may not sell, resell, license, sublicense, distribute, rent, or lease the Solutions, or include the Solutions in a service-bureau or time-sharing offering, except as expressly permitted in an Order Form.

2.5  Acceptable Use.  Customer will not, and will not permit any User or Third Party to:

(a) use the Solutions in violation of applicable law or in violation of any Third Party’s rights;

(b) upload or transmit any malicious code, or interfere with or disrupt the integrity or performance of the Solutions;

(c) attempt to gain unauthorized access to the Solutions or their related systems or networks;

(d) use the Solutions to develop, train, or improve a competing product or service, or for benchmarking except as permitted in writing by Sandy Health;

(e) access or use the Solutions beyond the scope authorized in the applicable Order Form;

(f) submit to the Solutions any data for which Customer does not have all necessary rights, consents, and authorizations;

(g) rely on any speech-to-text, VOB, or other automated output to make clinical, diagnostic, treatment, billing, or coverage decisions without qualified human review, or represent any such output as a Sandy Health-verified clinical fact; or

(h) use any Scraping Methods when accessing or using the Solutions.

Any breach of this Section 2.5 is a material breach of the Agreement, and Sandy Health may suspend or restrict access as provided in Section 2.10.

2.6  No Reverse Engineering.  Customer will not, and will not permit any User or Third Party to, copy, modify, adapt, translate, reverse-engineer, decompile, disassemble, or attempt to derive the source code of any software or security component used by Sandy Health to provide the Solutions, including Sandy Health’s application programming interfaces (“APIs”), or copy or replicate any features, functions, or graphics of the Solutions. Customer acknowledges that any breach of this Section will result in irreparable harm to Sandy Health for which monetary damages would be an inadequate remedy, and Sandy Health is entitled to seek injunctive relief in addition to any other remedies available at law or in equity.

2.7  Implementation; Support.  Sandy Health will assist Customer with implementing the Solutions and will provide the level of support set forth in the applicable Order Form and Documentation. If required, Customer will provide Sandy Health with access to Customer Systems, Customer Data, and other historical information or data in the formats reasonably specified by Sandy Health.

2.8  Third-Party Solutions.  Sandy Health may provide Third-Party Solutions to Customer together with, or incorporated into, the Solutions, including third-party speech-recognition, transcription, and machine-learning technologies, payer-connectivity services, and hosting infrastructure. Customer is authorized to access and use Third-Party Solutions as described in an applicable Order Form, and such use is subject to the Agreement and any applicable Third-Party Terms. If any Third-Party Terms conflict with the Agreement, the conflicting Third-Party Terms control only with respect to the Third-Party Solution to which they apply. Sandy Health may substitute or replace any Third-Party Solution with one of comparable functionality at any time and will remain responsible for its subcontractors’ handling of PHI as set forth in the BAA.

2.9  Changes to the Solutions.  Sandy Health may, in its discretion, make changes to the Solutions and Documentation that it deems necessary or useful to: (a) comply with applicable law; (b) address security vulnerabilities; or (c) maintain or enhance the quality, functionality, performance, or marketability of the Solutions. Sandy Health will not materially decrease the core functionality of a Solution for which Customer is then paying during the then-current Order Form term; if Sandy Health materially and adversely changes such core functionality, Customer may terminate the affected Order Form and receive a refund of prepaid, unused fees for the terminated remainder of the term.

2.10  Suspension.  Sandy Health may suspend, terminate, or otherwise deny Customer’s or any User’s access to all or any part of the Solutions thirty (30) days after written notice for non-payment of undisputed fees, or immediately upon written notice if: (a) suspension is necessary to comply with applicable law, regulation, or governmental order; (b) Customer or a User materially violates the Agreement and the violation is not subject to cure; (c) Customer or any User is or is reasonably likely to be involved in fraudulent, misleading, or unlawful activity related to the Solutions; (d) continued access poses a material security risk to the Solutions or to other customers; or (e) the applicable Order Form expires or is terminated. Sandy Health will use commercially reasonable efforts to limit any suspension to the affected portion of the Solutions and to restore access promptly after the cause of suspension is resolved.

3.  SPEECH-TO-TEXT, TRANSCRIPTION, AND AI-ENABLED FEATURES

3.1  Description.  Where included in an Order Form, the Solutions provide speech-to-text transcription services, which may include, as applicable: real-time and asynchronous speech-to-text transcription of clinical encounters, telehealth visits, and provider dictation; recognition of domain-specific medical vocabulary, including clinical terminology, medication and procedure names, and other specialized keywords; speaker diarization to distinguish between provider, patient, and other participants in multi-speaker audio; smart formatting of transcript outputs, including automatic punctuation, capitalization, paragraphing, and conversion of spoken numerals into digits; and documentation and delivery of transcript outputs via the Platform (collectively, the “Transcription Services”).

3.2  Provided Through Third-Party Technology.  The Transcription Services and certain other AI-enabled features are, or may be, provided using Third-Party Solutions, including third-party speech-recognition and machine-learning technologies. Such features are Third-Party Solutions for purposes of Section 2.8, and Sandy Health may substitute or supplement the underlying provider with one offering comparable functionality without notice, provided that Sandy Health remains responsible for the handling of PHI by its subcontractors as set forth in the BAA.

3.3  Recording Consents and Authorizations.  As between the Parties, Customer is solely responsible for obtaining and maintaining all notices, consents, and authorizations necessary to record, capture, transmit, and Process audio of patients and other individuals, including any consents or notices required under federal and state wiretap, eavesdropping, and one-party, two-party, or all-party consent laws, and any authorizations required under HIPAA or other applicable law. Customer represents and warrants that it has obtained all such consents and authorizations before submitting any audio to the Solutions. Sandy Health does not obtain these consents or authorizations on Customer’s behalf.

3.4  Accuracy; Required Human Review; Not a System of Record.  Customer acknowledges that Transcription Services, VOB results, and other AI-enabled outputs are generated by automated means, are probabilistic in nature, and may contain errors, omissions, or inaccuracies, including misrecognized terms, mis-attributed speakers, and formatting errors. All outputs are drafts intended to assist trained personnel and are not a substitute for the independent review and professional judgment of qualified individuals. Customer is solely responsible for reviewing, verifying, editing, and approving all outputs before relying on them or incorporating them into any medical record, claim, or decision. The Solutions are not the system of record, and Customer is responsible for maintaining its own records and backups.

3.5  No Medical Advice; No Clinical Decision-Making.  The Solutions are information-management tools. They do not, and are not intended to, administer health benefits, diagnose disease, recommend or prescribe treatment, render care or payment decisions, or otherwise engage in the practice of medicine, and they are not intended to be relied upon as clinical decision support. Customer will ensure that only properly trained individuals use the Solutions and that all clinical, diagnostic, treatment, billing, and coverage decisions are made by qualified humans exercising independent professional judgment.

3.6  Audio Inputs and Transcript Outputs.  Audio submitted to the Solutions and transcript outputs constitute Customer Data and, to the extent they contain PHI, are Processed in accordance with the BAA and applicable law. Voice recordings are Customer Data and will not be used by Sandy Health except to provide, maintain, and support the Solutions, to improve the Solutions in de-identified form as permitted by Section 6 and the BAA, or as otherwise permitted by the Agreement.

3.7  Service Improvement.  Sandy Health and its Third-Party Solution providers may use de-identified data derived from Customer Data, if de-identified in accordance with 45 CFR § 164.514 and the BAA, to operate, maintain, develop, and improve the Solutions and their underlying models. Sandy Health will not permit any Third-Party Solution provider to use PHI to train or improve that provider’s own models or for that provider’s own purposes, except to the extent expressly permitted by the BAA and applicable law.

4.  ACCOUNTS; USERS; CUSTOMER OBLIGATIONS

4.1  Cooperation.  Customer will cooperate with Sandy Health in all matters relating to the Solutions and will appoint an employee to serve as the primary contact with authority to act on Customer’s behalf. Customer will respond promptly to Sandy Health’s reasonable requests for direction, information, approvals, authorizations, or decisions necessary for Sandy Health to provide the Solutions.

4.2  Users and Credentials.  Customer is responsible for all access to and use of the Solutions by its Users and for maintaining the confidentiality and security of all account and login credentials. Customer will ensure that each User complies with the Agreement and will promptly notify Sandy Health of any unauthorized access or use.

4.3  Customer Systems and Integration.  Customer retains sole control over the operation, maintenance, access, and management of the Customer Systems and is solely responsible for all access to and use of the Solutions through the Customer Systems. Customer will provide Sandy Health with the access to Customer Systems necessary for Sandy Health to provide the Solutions and, where integration is required, will designate a technical contact to assist with related issues.

4.4  Customer Input Errors.  Customer is responsible for the accuracy and quality of any messages, information, or data provided by Customer or Users to Sandy Health. Sandy Health is not responsible for errors in the Solutions caused by inaccurate or incomplete messages, information, or data provided by Customer or Users.

4.5  Prevention or Delay.  If Sandy Health’s ability to provide the Solutions is prevented or delayed by any act or omission of Customer, its Users, or its agents, subcontractors, consultants, or employees, Sandy Health will not be in breach of the Agreement and will not be liable for any resulting Losses, and any affected timelines will be extended accordingly.

4.6  Data Backup.  The Solutions do not replace Customer’s need to maintain regular data backups or redundant data archives. Except to the extent caused by Sandy Health’s gross negligence or willful misconduct, or as otherwise required by the BAA or applicable law, Sandy Health has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data.

5.  FEES AND PAYMENT

5.1  Fees.  Customer will pay Sandy Health the fees set forth in each applicable Order Form. Except as expressly stated in the Agreement, fees are non-cancelable and non-refundable.

5.2  Invoicing and Payment.  Sandy Health will invoice Customer in accordance with the applicable Order Form, and Customer will pay all undisputed fees and charges in U.S. dollars, by the method stated in the Order Form (such as credit card or ACH/bank wire transfer), within thirty (30) days of the invoice date unless the Order Form specifies otherwise.

5.3  Late Payment.  If Customer does not pay undisputed fees by the due date, a late fee of the lesser of 1.5% per month (18% per annum) or the maximum rate permitted by law will accrue on the unpaid balance from the due date until paid. Customer will notify Sandy Health of any good-faith dispute in writing no later than the due date and will pay all undisputed amounts when due. Customer is responsible for reasonable collection costs (including reasonable attorneys’ fees) incurred to collect past-due undisputed amounts. Charging interest is not consent to late payment, and a missing, delayed, or incorrect invoice does not waive Sandy Health’s right to collect amounts due.

5.4  Expenses.  Each Party will bear its own costs and expenses relating to the Agreement unless otherwise stated in the Agreement or agreed in writing.

5.5  Taxes.  Fees do not include, and Customer is responsible for, all direct or indirect local, state, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, sales, use, excise, and withholding taxes, except for taxes based on Sandy Health’s net income, gross receipts, or employment.

5.6  Fee Increases.  Sandy Health may increase the fees under an Order Form no more than once every twelve (12) months upon at least sixty (60) days’ prior written notice. Customer may terminate the affected Order Form without penalty by written notice within thirty (30) days after receiving notice of the increase, effective as of the date the increase would otherwise take effect.

6.  INTELLECTUAL PROPERTY; DATA RIGHTS

6.1  Sandy Health Intellectual Property.  Except for the limited rights expressly granted to Customer in the Agreement, Sandy Health owns and reserves all right, title, and interest, including all Intellectual Property Rights, in and to the Solutions, the Documentation, and the Usage Data.

6.2  Customer Data.  As between the Parties, Customer retains all right, title, and interest in and to the Customer Data, including all Intellectual Property Rights, subject to the rights and permissions granted to Sandy Health under the Agreement.

6.3  License to Customer Data.  Customer grants Sandy Health all rights and permissions in and to the Customer Data necessary to provide the Solutions during the term, and authorizes and directs Sandy Health to access and use Customer Data stored in Sandy Health’s systems as necessary or useful to deliver the Solutions. All access to and use of Customer Data will comply with the Agreement, the BAA, and applicable privacy and security laws.

6.4  Usage Data; De-Identified Data.  Sandy Health may collect and use Usage Data, and may create and use aggregated and de-identified data derived from Customer Data, in each case to operate, maintain, secure, develop, and improve the Solutions and for Sandy Health’s other lawful business purposes, provided that such aggregated and de-identified data: (a) is de-identified in accordance with 45 CFR § 164.514 and other applicable de-identification standards; (b) does not identify and cannot reasonably be used to identify Customer, any User, or any individual; and (c) is not re-identified by Sandy Health. As between the Parties, Sandy Health owns Usage Data and such aggregated and de-identified data.

6.5  Feedback.  If Customer or its Users provide suggestions, ideas, or other feedback regarding the Solutions (“Feedback”), Sandy Health may use the Feedback without restriction or obligation, and Customer grants Sandy Health a perpetual, irrevocable, worldwide, royalty-free license to use and incorporate the Feedback into the Solutions.

6.6  Customer Marks.  Customer grants Sandy Health a worldwide, royalty-free, limited, non-exclusive license to use and display Customer’s Marks as necessary to perform under the Agreement. Sandy Health may identify Customer as a customer (including by name and logo) in its customer lists and, with Customer’s prior consent (not to be unreasonably withheld), in other marketing materials. Customer represents that it has the rights to grant this license and that Sandy Health’s permitted use of the Customer Marks will not infringe the rights of any Third Party.

7.  CONFIDENTIALITY

7.1  Use and Protection.  Each Party will protect the other Party’s Confidential Information using at least the same degree of care it uses for its own Confidential Information of like nature, and no less than reasonable care. Except as permitted by the Agreement, the receiving Party will not disclose the disclosing Party’s Confidential Information except: (a) to its employees, agents, and professional advisors who have a need to know and are bound by confidentiality obligations at least as protective as those in this Section; or (b) as required by law or court order, provided that the receiving Party gives prompt written notice (to the extent legally permitted) and reasonably cooperates in any effort to obtain protective treatment.

7.2  Permitted Use.  The receiving Party will use the disclosing Party’s Confidential Information only to perform its obligations or exercise its rights under the Agreement; in the case of Customer, to evaluate and use the Solutions; and in the case of Sandy Health, to provide and to develop new and existing Solutions consistent with the Agreement.

7.3  Return or Destruction.  Upon written request after the term, each Party will promptly return or destroy the other Party’s Confidential Information and certify such destruction, except that the receiving Party may retain Confidential Information (a) as required by law and (b) in routine automated backups, in each case subject to the continuing protections of this Section and not for any other use.

7.4  Period; Trade Secrets.  Each Party will comply with this Section during the term and for five (5) years thereafter, except that, with respect to information that constitutes a trade secret under applicable law, the obligations continue until the information ceases to be a trade secret other than through the receiving Party’s act or omission. The handling of PHI is governed by the BAA, which controls over this Section with respect to PHI.

8.  DATA PROTECTION; HIPAA; SECURITY

8.1  HIPAA Compliance; BAA.  Each Party will comply with all applicable laws, including HIPAA. The Parties will comply with the BAA between them, which is incorporated into the Agreement by reference. In the event of any conflict between the Agreement and the BAA, the BAA controls with respect to the use and disclosure of PHI.

8.2  Privacy Policy.  Sandy Health’s processing of personal information that it controls (such as information about website visitors, Customer’s administrative contacts, and Users) is described in the Privacy Policy at https://sandyhealth.com/privacy. PHI that Sandy Health Processes on Customer’s behalf is governed by the BAA and HIPAA, not the Privacy Policy.

8.3  Security.  Sandy Health will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the Solutions and Customer Data, consistent with the Security Rule and the BAA. Customer will employ all physical, administrative, and technical controls and safeguards necessary to: (a) securely manage all User credentials and prevent unauthorized access to or use of the Solutions; and (b) control the content and use of Customer Data, including data uploaded for Processing by the Solutions.

9.  REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS

9.1  Mutual Warranties.  Each Party represents and warrants that: (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization; (b) it has the full right, power, and authority to enter into and perform the Agreement and to grant the rights it grants; (c) the person executing or accepting the Agreement on its behalf is duly authorized; (d) the Agreement is its legal, valid, and binding obligation, enforceable in accordance with its terms; and (e) it has not been excluded from participation in any federal health care program.

9.2  Customer Warranty.  Customer represents and warrants that it has and will have all necessary rights, consents, and authorizations in and relating to the Customer Data such that, as received and Processed by Sandy Health and any Third-Party Solution provider, the Customer Data will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or privacy or other rights of any Third Party or violate any applicable law.

9.3  Limited Service Warranty.  Sandy Health represents and warrants that it will provide the Solutions in a professional manner consistent with industry standards using trained and skilled personnel, and that the Solutions will materially conform to the Documentation during the applicable Order Form term. Customer’s sole and exclusive remedy, and Sandy Health’s sole liability, for breach of this warranty is the repair, replacement, or re-performance of the nonconforming Solution or, if Sandy Health cannot do so using commercially reasonable efforts, a refund of the prepaid, unused fees for the nonconforming Solution.

EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 9 AND ANY WARRANTIES IN AN ORDER FORM, THE SOLUTIONS, DOCUMENTATION, AND ALL DELIVERABLES, DATA, AND MATERIALS ARE PROVIDED “AS IS,” AND SANDY HEALTH DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SANDY HEALTH DOES NOT WARRANT THAT THE SOLUTIONS WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, THAT OUTPUTS WILL BE ACCURATE OR COMPLETE, OR THAT THE SOLUTIONS WILL MEET CUSTOMER’S REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT. ALL THIRD-PARTY SOLUTIONS ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND.

10.  INDEMNIFICATION

10.1  By Customer.  Customer will defend, indemnify, and hold harmless Sandy Health and its Affiliates and their respective officers, directors, employees, and agents from and against any Losses arising out of or relating to a Third-Party or User claim concerning: (a) Customer’s or a User’s wrongful or negligent use of the Solutions; (b) unauthorized access to or use of the Solutions through Customer Systems or Customer’s or a User’s credentials, identity-management errors, data-mapping errors, or connectivity errors; (c) corrupted, incomplete, or inaccurate Customer Data, or Customer’s failure to obtain required consents or authorizations (including under Section 3.3); (d) Customer’s gross negligence or willful misconduct; or (e) infringement claims regarding Customer Marks or other materials provided by Customer.

10.2  By Sandy Health.  Sandy Health will defend, indemnify, and hold harmless Customer and its Affiliates from and against any Losses arising out of or relating to a Third-Party claim concerning: (a) Sandy Health’s gross negligence or willful misconduct; or (b) infringement or misappropriation by the Solutions or Documentation (as provided by Sandy Health) of a Third Party’s Intellectual Property Rights. If the Solutions become, or in Sandy Health’s opinion are likely to become, the subject of an infringement claim, Sandy Health may, at its option and expense: (i) procure the right for Customer to continue using the affected Solution; (ii) modify or replace it with a non-infringing equivalent; or (iii) if neither is commercially reasonable, terminate the affected Order Form and refund prepaid, unused fees. Sandy Health has no obligation for claims arising from Customer Data, Customer Marks, use of the Solutions in violation of the Agreement, or combination of the Solutions with items not provided by Sandy Health.

10.3  Procedures.  The Party seeking indemnification will: (a) promptly notify the indemnifying Party of the claim (provided that a delay relieves the indemnifying Party only to the extent it is actually prejudiced); (b) provide reasonable cooperation at the indemnifying Party’s expense; and (c) give the indemnifying Party sole control of the defense and settlement, except that the indemnifying Party may not settle any claim in a manner that admits liability of, imposes any non-released obligation on, or adversely affects the rights of the indemnified Party without its prior written consent (not to be unreasonably withheld or delayed).

10.4  Exclusive Remedy.  This Section 10 states the indemnified Party’s sole remedy and the indemnifying Party’s entire liability for the third-party claims described in this Section, including any claim that the Solutions infringe, misappropriate, or violate any Intellectual Property Rights of a Third Party.

11.  LIMITATION OF LIABILITY

EXCLUSION OF INDIRECT DAMAGES. EXCEPT FOR THE EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, LOSS OF GOODWILL OR REPUTATION, OR THE COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY WERE OTHERWISE FORESEEABLE.

GENERAL CAP. EXCEPT FOR THE EXCLUDED CLAIMS AND THE SUPER-CAP CLAIMS, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

SUPER-CAP. SANDY HEALTH’S TOTAL AGGREGATE LIABILITY FOR (A) ITS BREACH OF ITS CONFIDENTIALITY, DATA-SECURITY, OR HIPAA/BAA OBLIGATIONS, OR (B) ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.2 (TOGETHER, THE “SUPER-CAP CLAIMS”) WILL NOT EXCEED THE GREATER OF (I) TWO (2) TIMES THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT, OR (II) ONE MILLION U.S. DOLLARS (US$1,000,000).

EXCLUDED CLAIMS. THE FOREGOING CAPS DO NOT APPLY TO: (A) CUSTOMER’S PAYMENT OBLIGATIONS; (B) CUSTOMER’S BREACH OF SECTION 2.3 (ACCESS AND USE), SECTION 2.5 (ACCEPTABLE USE), OR SECTION 2.6 (NO REVERSE ENGINEERING), OR INFRINGEMENT OF SANDY HEALTH’S INTELLECTUAL PROPERTY RIGHTS; (C) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.1; OR (D) A PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.

LIMITATION PERIOD. EXCEPT FOR THE EXCLUDED CLAIMS, ANY CLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE SOLUTIONS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE IT IS PERMANENTLY BARRED, EXCEPT WHERE AND TO THE EXTENT A SHORTER LIMITATION PERIOD THAN OTHERWISE PROVIDED BY LAW IS NOT PERMITTED FOR THE CLAIM UNDER APPLICABLE LAW, IN WHICH CASE THE SHORTEST PERIOD PERMITTED BY LAW APPLIES.

THE LIMITATIONS IN THIS SECTION 11 FORM AN ESSENTIAL BASIS OF THE BARGAIN, APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND APPLY EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12.  TERM AND TERMINATION

12.1  Term.  These Terms take effect when first accepted by Customer and continue until there are no active Order Forms, unless terminated as provided in the Agreement. Each Order Form’s term, renewal, and non-renewal mechanics are as set forth in that Order Form.

12.2  Termination for Cause.  Either Party may terminate an Order Form, effective on notice, if the other Party: (a) materially breaches the Agreement with respect to that Order Form and does not cure within thirty (30) days after written notice; or (b) becomes insolvent, makes a general assignment for the benefit of creditors, or becomes subject to bankruptcy or similar proceedings not dismissed within forty-five (45) days. If no Order Forms are in effect, either Party may terminate these Terms on notice.

12.3  Termination for Non-Payment.  In addition to its suspension rights, Sandy Health may terminate an Order Form for Customer’s failure to pay undisputed fees that remain unpaid thirty (30) days after written notice. Any liquidated-damages or accelerated-fee terms in an Order Form apply on such termination.

12.4  Effect of Termination.  Upon expiration or termination of an Order Form, Customer will cease accessing and using the affected Solutions, and all unpaid fees for the affected Solutions through the effective date of termination become due. The return or destruction of PHI is governed by the BAA, and the return or destruction of other Confidential Information is governed by Section 7. Termination of one Order Form does not affect any other Order Form or these Terms. Termination is without prejudice to any other right or remedy and does not waive any other breach.

12.5  Survival.  The following survive expiration or termination of the Agreement: Sections 1.3, 5 (as to amounts accrued), 6, 7, 9, 10, 11, 12.4, 13, 14, and 15, together with any provision that by its nature should survive.

13.  DISPUTE RESOLUTION; ARBITRATION; CLASS-ACTION WAIVER; GOVERNING LAW

13.1  Governing Law.  The Agreement is governed by the laws of the State of Delaware, without regard to its conflict-of-laws principles, except that, to the extent HIPAA, the Part 2 Rules, or other federal law preempts or sets a floor for state-law protections of PHI, such federal law applies.

13.2  Informal Resolution.  Before initiating arbitration, a Party will give the other Party written notice describing the dispute and the relief sought, and the Parties will attempt in good faith to resolve the dispute for thirty (30) days. If the dispute is not resolved within that period, either Party may initiate arbitration as provided below.

13.3  Binding Arbitration.  Except for the Excepted Matters described in Section 13.5, any dispute, claim, or controversy arising out of or relating to the Agreement or the Solutions, including its formation, breach, termination, validity, or enforceability, will be finally resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules then in effect. The arbitration will be conducted before a single arbitrator; the seat and location of the arbitration will be San Francisco, California; and the proceeding will be conducted in English. The arbitrator will apply the governing law specified in Section 13.1, may award only such relief as a court could award under the Agreement subject to the limitations in Section 11, and will issue a reasoned written award. Judgment on the award may be entered in any court of competent jurisdiction. The Federal Arbitration Act governs the interpretation and enforcement of this Section.

13.4  Class-Action Waiver.  All disputes will be arbitrated only on an individual basis. The Parties waive any right to bring or participate in any class, collective, consolidated, or representative action, and the arbitrator may not consolidate the claims of more than one party or preside over any class or representative proceeding. If this class-action waiver is held unenforceable as to any claim, that claim (and only that claim) will be severed and may proceed in court, while all other claims will be arbitrated.

13.5  Excepted Matters.  Notwithstanding the foregoing, either Party may: (a) seek injunctive or other equitable relief in a court of competent jurisdiction to protect its Intellectual Property Rights or Confidential Information or to prevent unauthorized use of the Solutions; (b) bring an action to collect undisputed amounts due; and (c) resolve any dispute arising under the BAA in accordance with the BAA’s governing-law and venue provisions, which control over this Section 13 for such disputes. For matters that may be brought in court, the Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in New Castle County, Delaware, and waive any objection to such venue or any claim of inconvenient forum.

14.  GENERAL PROVISIONS

14.1  Assignment.  Customer may not assign or transfer the Agreement or any rights or obligations under it, by operation of law or otherwise, without Sandy Health’s prior written consent, and any attempted assignment in violation of this Section is void. Customer will notify Sandy Health in writing within thirty (30) days of any merger, acquisition, or change of control. Sandy Health may assign the Agreement to an Affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its assets. The Agreement binds and inures to the benefit of the Parties’ permitted successors and assigns.

14.2  Subcontractors.  Sandy Health may subcontract its obligations under the Agreement and remains responsible for the performance of its subcontractors, and, with respect to PHI, as set forth in the BAA.

14.3  Independent Contractors.  The Parties are independent contractors, and the Agreement does not create any agency, partnership, joint venture, employment, or fiduciary relationship. Neither Party may bind the other.

14.4  Notices.  Notices under the Agreement must be in writing and are deemed given when delivered by email with confirmation of receipt, by hand, by nationally recognized overnight courier, or by certified or registered mail (return receipt requested) to the addresses in the applicable Order Form. Notices to Sandy Health may be sent to legal@sandyhealth.com. Either Party may change its notice address by notice to the other.

14.5  Force Majeure.  Neither Party is liable for any delay or failure to perform (other than payment obligations) due to a Force Majeure Event, provided the affected Party gives prompt notice and uses commercially reasonable efforts to resume performance. If a Force Majeure Event continues for more than sixty (60) consecutive days, either Party may terminate the affected Order Form on written notice.

14.6  Publicity.  Neither Party will disclose the financial terms of any Order Form without the other Party’s written consent. Sandy Health’s use of Customer Marks is governed by Section 6.6.

14.7  Non-Exclusive.  The Agreement is non-exclusive, and each Party is free to enter into similar agreements with others unless an Order Form expressly states otherwise.

14.8  Amendment; Waiver.  An Order Form may be amended only by a writing signed by both Parties; these Terms may be modified by Sandy Health only as provided in Section 1.5. A waiver is effective only if in writing and signed by the waiving Party, and no failure or delay in exercising a right waives it.

14.9  Severability.  If any provision of the Agreement is held unenforceable, the remaining provisions remain in full force, and the unenforceable provision will be modified to the minimum extent necessary to make it enforceable while preserving the Parties’ intent.

14.10  Entire Agreement.  The Agreement is the entire agreement between the Parties regarding its subject matter and supersedes all prior or contemporaneous communications and agreements, including any prior master platform agreement, with respect to that subject matter. To the extent the Parties previously executed a Master Platform Agreement, the Agreement (these Terms together with the applicable Order Form and BAA) supersedes and replaces that Master Platform Agreement as of the applicable Order Form’s effective date, except for rights and obligations that accrued before such date.

14.11  Export and U.S. Use.  Customer will comply with all applicable export-control and sanctions laws and will not access or use the Solutions in violation of such laws.

14.12  Headings; Counterparts.  Headings are for convenience only and do not affect interpretation. An Order Form may be executed electronically and in counterparts, each of which is deemed an original and all of which together constitute one instrument.

15.  DEFINITIONS

“Affiliate” means, with respect to a Party, an entity that directly or indirectly controls, is controlled by, or is under common control with that Party, where “control” means the power to direct the management and policies of an entity, whether through ownership of voting securities, by contract, or otherwise.

“Agreement” has the meaning given in Section 1.1.

“BAA” means the Business Associate Agreement entered into between the Parties, as amended from time to time.

“Confidential Information” means non-public information of a disclosing Party that is marked or identified as confidential or that the receiving Party should reasonably understand to be confidential, including business, product, pricing, technical, and other proprietary information and the terms of the Agreement. Confidential Information does not include information that: (a) is or becomes public through no fault of the receiving Party; (b) was known to the receiving Party without confidentiality obligation before disclosure; (c) is rightfully obtained from a Third Party without confidentiality obligation; or (d) is independently developed without use of the disclosing Party’s Confidential Information. PHI is governed by the BAA.

“Covered Entity” has the meaning given in 45 CFR § 160.103.

“Customer Data” means information and data, including PHI, that is collected or received from Customer or a User by or through the Solutions, including audio inputs and transcript outputs. Customer Data does not include Usage Data.

“Customer Marks” means the trademarks, service marks, logos, trade names, and other indicia of origin of Customer.

“Customer Systems” means Customer’s information-technology infrastructure, including computers, software, hardware, databases, networks, and electronic systems, whether operated by Customer or a Third Party on its behalf.

“Documentation” means the non-marketing materials that Sandy Health provides or makes available describing the functionality, features, or requirements of the Solutions, including implementation, configuration, integration, operation, use, support, or maintenance, as updated from time to time.

“Force Majeure Event” means any event beyond a Party’s reasonable control and without its fault or negligence, including acts of God, war, terrorism, riots, embargoes, governmental acts, cyber-attack, ransomware, widespread denial-of-service attack, power-grid failure, fire, flood, earthquake, or strikes, that materially affects performance, but excluding events that are foreseeable or preventable through reasonable precautions.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, as amended, including by the HITECH Act.

“Intellectual Property Rights” means all registered and unregistered rights under patent, copyright, trademark, trade secret, database, and other intellectual-property laws, and all similar or equivalent rights anywhere in the world.

“Losses” means any and all liabilities, damages, judgments, settlements, penalties, fines, costs, and expenses of any kind, including reasonable attorneys’ fees and costs.

“Order Form” means an ordering document or statement of work executed by the Parties that specifies the Solutions and additional terms applicable to Customer, including any addenda and supplements.

“PHI” or “Protected Health Information” has the meaning given in 45 CFR § 160.103, limited to information created, received, maintained, or transmitted by Sandy Health from or on behalf of Customer.

“Platform” means Sandy Health’s proprietary, remotely hosted software platform through which the Solutions are provided.

“Process” or “Processing” means any operation performed on data, including collection, recording, organization, storage, use, transmission, disclosure, or deletion.

“Scraping Methods” means bots, technologies, or methods commonly known as “screen scraping,” “data scraping,” “web scraping,” “web emulation,” or “web bots.”

“Solution” means any Product or Service provided to Customer under an Order Form, including the Platform, the VOB services, the Transcription Services, and all updates, upgrades, enhancements, and modifications, and any additional Products or Services provided under the Agreement.

“Third Party” means any individual or entity other than Sandy Health, Customer, or their respective Affiliates.

“Third-Party Solution” means any product or portion of a Service that is part of the Solutions but is owned or provided by a Third Party.

“Third-Party Terms” means the terms and conditions applicable to a Third-Party Solution.

“Transcription Services” has the meaning given in Section 3.1.

“Usage Data” means data related to Customer’s or Users’ use of the Solutions or derived from Sandy Health’s monitoring of such use, and performance information related to the Solutions, together with aggregated and de-identified data derived from Customer Data that satisfies the conditions of Section 6.4. Usage Data does not include Customer Data or Customer’s Confidential Information.

“User” means Customer’s employees, consultants, contractors, and agents authorized by Customer to access and use the Solutions.

“VOB” has the meaning given in Section 2.2.

These Terms of Service are published by Sandy AI, Inc., d/b/a Sandy Health, and are available at https://sandyhealth.com/terms.