TERMS OF SERVICE
These Terms of Service (this “Agreement”) are entered into by and between Suki AI, Inc., a Delaware corporation (“Suki”), and the entity or person accessing or using the Suki Platform (“Customer”). This Agreement consists of the terms and conditions set forth below and any Order Forms that reference this Agreement. If you are accessing or using the Suki Platform on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company.
Please note that Suki may modify the terms and conditions of this Agreement in accordance with Section 9.5 (Amendment; Waivers).
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SUKI PLATFORM, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE THE SUKI PLATFORM. EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT.
1. Definitions
1.1 The following terms, when used in this Agreement will have the following meanings:
“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. For the avoidance of doubt, reports and/or information related to or regarding a party’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, patients, partners and products or services will be deemed Confidential Information of the disclosing party even if not so identified. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Suki for the Suki Platform.
“Order Form” means a mutually executed order form, quote or other similar document that sets forth the subscriptions and pricing for Suki Platform purchased by Customer, and that references this Agreement.
“Statement of Work” or “SOW” means a mutually executed statement of work that sets forth any Professional Services (defined below) purchased by Customer in connection with its use of the Suki Platform.
“Suki Platform” means Suki’s SaaS-based artificial intelligence (AI) product that uses machine learning, conversational-AI and process automation to provide medical transcription and other related.
“Suki Technology” means the Suki Platform including any software that is provided in connection with the Suki Platform which may include technology of third parties which Suki is authorized to include as part of the Suki Platform.
2. Suki Platform
2.1 Provision of Suki Platform. Subject to the terms and conditions of this Agreement Suki will make the Suki Platform available to Customer via the Internet pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive, non-transferable right to access and use the Suki Platform during the Term solely for its internal business purposes. Customer agrees that (a) the Suki Platform will be accessed or used only by its employees or contractors authorized by Customer to access and use the Suki Platform and solely using the user identifiers and passwords provided or registered to Customer by Suki (such employees and contractors collectively, “Authorized Users”) and (b) Customer will not provide a user identifier or password to access the Suki Platform to any party or person other than Authorized Users.
2.2 Access. Suki may temporarily suspend Customer’s or any Authorized User’s access to any portion of the Suki Platform if Suki reasonably determines that (a) Customer or any Authorized User has breached this Agreement or (b) an event has occurred, or is likely to occur, that may create a risk to the Suki Platform, Customer or any other Suki customer. Suki may monitor Customer’s and Authorized Users’ use of the Suki Platform and compile statistical and performance information related to the operation of and provision of access to the Suki Platform for Suki’s internal use and other purposes. Customer understands and agrees that Customer’s access to and use of the Suki Platform is dependent, in part, on access to certain third-party products, services or integrations, including Customer’s electronic medical record system (“EMR”) and the data contained therein, and Suki may, among other things, withdraw, suspend, or discontinue any functionality or feature of the Suki Platform based on the actions of its Customer or EMR.
2.3 Data Security. Suki will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data provided or uploaded by or on behalf of Customer to Suki or through the Suki Platform (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. Suki’s security safeguards include measures designed to prevent unauthorized access, use, modification or disclosure of Customer Data, including by Suki personnel except (a) to provide the Suki Platform and prevent or address service or technical problems, (b) as required by applicable law, or (c) as Customer expressly permits in writing or under this Agreement.
2.4 Business Associate Agreement. For purposes of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Suki is a business associate to Customer. Accordingly, the parties’ will execute a business associate agreement (a “BAA”) that will permit Customer to transmit certain protected health information (as defined under HIPAA, “PHI”) regarding Customer’s patients to Suki in connection with Customer’s access and use of the Suki Platform, and will permit Suki to use such information as set forth in this Agreement.
2.5 Customer Limitations. The rights granted herein to the Suki Platform and Suki Technology are subject to the following restrictions (the “License Restrictions”). Customer will not directly or indirectly, and Customer shall ensure Authorized Users do not directly or indirectly:
(a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Suki Technology;
(b) interfere with or disrupt the integrity or performance of the Suki Platform or third-party data contained therein;
(c) attempt to probe, scan or test the vulnerability of the Suki Technology, breach the security or authentication measures of the Suki Technology without proper authorization or willfully render any part of the Suki Platform unusable;
(d) use or access the Suki Platform to develop a product or service that is competitive with the Suki Platform or its other products and services or otherwise engage in competitive analysis or benchmarking;
(e) transfer, distribute, sell, resell, lease, license, sub-license or assign the Suki Platform or otherwise offer the Suki Platform on a standalone basis;
(f) access or use the Suki Platform to store or transmit material in violation of third-party intellectual property rights or privacy laws;
(g) attempt to gain unauthorized access to the Suki Platform or the Customer Data therein;
(h) use the Suki Platform to store or transmit viruses or other harmful or malicious code, files, scripts, agents or programs;
(i) permit direct or indirect access to, or use of, the Suki Platform or Customer Data in a way that circumvents a contractual usage limit or access or use any of our intellectual property except as permitted under this Agreement;
(j) frame or mirror any part of the Suki Platform, other than framing on Customer’s own intranets or otherwise for its internal business purposes; or
(k) otherwise use the Suki Technology outside the scope expressly permitted hereunder and in the applicable Order Form.
2.6 Customer Responsibilities.
(a) Customer acknowledges that Suki’s provision of the Suki Platform is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s applications, software systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form or SOW), and Customer will provide all such cooperation in a diligent and timely manner.
(b) Customer will (i) be responsible for all use of the Suki Platform under its account (whether or not authorized), (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Suki Platform and notify Suki promptly of any such unauthorized access or use, (iii) cooperate with Suki as reasonably necessary to resolve errors and, if applicable, interruptions related to the Suki Platform, (iv) use the Suki Technology solely in accordance with this Agreement, the documentation and instructions supplied by Suki, including any instructions provided by Suki personnel, and all applicable laws, rules and regulations and (v) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Suki Platform, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain its equipment, software and services, and Suki will have no liability for such failure (including under any service level agreement, if applicable). In addition, Customer will be responsible for ensuring that its systems (e.g., APIs) have sufficient bandwidth to use the Suki Platform.
(c) Customer is solely responsible for the accuracy, quality, integrity and legality of any data (including Customer Data) and other information supplied to Suki by or on behalf of Customer and its Authorized Users in the course of using the Suki Platform, including any PHI. In addition, Customer is solely responsible for the accuracy and verification of any transcripts and reports generated by Customer’s use of the Suki Platform, including Post-Processed Data. The parties hereby agree that Suki shall have no liability with respect to any claims arising out any of the foregoing. For purposes herein, “Post-Processed Data” means data created in and/or processed by the Suki Platform and thereafter submitted into Customer’s EMR.
(d) To the extent Customer or its Authorized Users use any ambient voice capture or recording features of the Suki Platform (“Ambient Capture”), Customer and its Authorized Users are solely responsible for (i) providing any notices or obtaining any permissions, consents, and rights necessary for Suki to process any Customer Data generated from such features and (ii) complying with any applicable laws and regulations relating to the recording of conversations (including any federal or state wiretapping laws). In addition, Customer will ensure that all Authorized Users only use Ambient Capture features to monitor and record patient conversations with physicians or other healthcare providers and for no other purpose.
2.7 Affiliates. Any Affiliate of Customer will have the right to enter into an SOW executed by such Affiliate and Suki and this Agreement will apply to each such SOW as if such Affiliate were a signatory to this Agreement. With respect to such SOWs, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each SOW is a separate obligation of the Customer entity that executes such SOW, and no other Customer entity has any liability or obligation under such SOW.
2.8 Professional Services. In the event Customer has executed an SOW for the professional of any integration, custom-development or other professional services (the “Professional Services”), Suki will assign to Customer designated personnel to complete such Professional Services, and Customer will assign a primary point of contact to coordinate communication and make decisions on behalf of Customer during the Professional Services. Unless otherwise agreed upon by the parties, Suki will provide the Professional Services remotely. Suki’s ability to complete the Professional Services depends upon Customer’s timely and effective cooperation and collaboration. Suki will not be responsible for any delay in the Professional Services caused by the actions or inactions of Customer.
3. Fees
3.1 Fees. Customer will pay Suki the fees set forth in each Order Form or SOW (“Fees”). Unless set forth otherwise in the corresponding Order Form or SOW, full payment for an invoice must be received by Suki within thirty (30) days of the applicable invoice. Except as otherwise specified herein or in any applicable Order Form or SOW, (a) Fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and Fees paid are non-refundable.
3.2 Late Payment. Unpaid Fees are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower. Suki may suspend access to the Suki Platform immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date.
3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Suki. Customer will not withhold any taxes from any amounts due to Suki.
4. Proprietary Rights and Confidentiality
4.1 Proprietary Rights. As between the parties, Suki exclusively owns all right, title and interest in and to Suki’s Confidential Information and the Suki Technology (including all improvements, enhancements, updates or modifications thereto, whether or not developed based on Feedback or in connection with any Professional Services, and all intellectual property rights related to any of the foregoing). Except for those rights expressly granted to Customer under this Agreement, Suki reserves all right, title and interest in and to the Suki Technology and other Suki’s Confidential Information. Customer exclusively owns all right, title and interest in and to the Customer Data and Customer’s Confidential Information. Customer hereby grants to Suki a non-exclusive license to copy, store, process, modify, display and otherwise use Customer Data to facilitate Customer’s access and use of the Suki Technology during the Term and for the purposes of improving and further developing the Suki Platform as set forth in this Section 4. In addition, Suki may access Authorized User account(s), including without limitation Customer Data, to respond to service or technical problems and for the purpose of using the Customer Data for system tuning, grammar tuning, training of acoustic models and other models, tools and algorithms. Customer further agrees that Suki has the right, solely for the purpose of improving its products and services, to aggregate, collect and analyze data and other information relating to the performance of the Suki Technology and Suki Platform and may de-identify and/or anonymize such data for such purpose. The parties agree that Suki owns all rights in and to any aggregated, non-identifiable data it develops or creates in connection with this Agreement (“Aggregate Data”). Except for those rights granted to Suki under this Agreement, Customer reserves all right, title and interest in and to Customer Data and other Customer’s Confidential Information.
4.2 Feedback. Customer may from time to time provide Suki suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Suki Platform and Suki Technology. Suki will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Suki will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
4.3 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
5. Warranties and Disclaimers
5.1 Representations and Warranties. Each party represents and warrants to the other party that (a) it is incorporated or organized and existing under the laws of its jurisdiction of incorporation or organization with full power and authority to enter into and perform this Agreement; (b) this Agreement has been duly authorized by all necessary corporate action and constitutes the binding obligation of such party enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy laws or other laws affecting the rights of creditors generally; (c) the person executing this Agreement on its behalf has actual authority to bind it to this Agreement; and (d) such party’s execution and performance of this Agreement does not and will not violate or conflict with any provision of such party’s governing corporate instruments or of any commitment, agreement or understanding that such party has or will have to or with any person or entity.
5.2 Suki. Suki represents and warrants that the Suki Platform and Suki Technology, when used by Customer as permitted by Suki and in accordance with the instructions in the Documentation, will operate as described in the Documentation in all material respects. Suki will, as its sole obligation and Customer’s exclusive remedy for any breach of the foregoing warranty, use commercially reasonable efforts, at its own expense, to correct any reproducible errors reported to Suki in writing.
5.3 Customer. Customer represents and warrants that it has and will have all rights necessary and full legal authority to provide the Customer Data (including PHI) and any other information, data or other materials that it provides hereunder, whether to the Suki Platform or otherwise to Suki, and to permit Suki to use the same as contemplated hereunder.
5.4 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY (INCLUDING, WITH RESPECT TO SUKI, EACH OF ITS THIRD PARTY LICENSORS) DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE SUKI TECHNOLOGY IS BASED ON PREDICTIVE STATISTICAL MODELS AND OTHER AI-POWERED TECHNOLOGIES, AND MAY NOT OPERATE IN A COMPLETELY UNINTERRUPTED OR ERROR-FREE FASHION OR WITHOUT LOSS OF DATA, AND SUKI DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE FOREGOING. CUSTOMER FURTHER UNDERSTANDS AND AGREES THAT (A) THE SUKI PLATFORM MAY INCLUDE FEATURES AND FUNCTIONALITIES THAT ARE POWERED BY AI TECHNOLOGIES AND THAT THE OUTPUT GENERATED BY SUCH TECHNOLOGIES ARE BASED ON ITS TRAINING DATA AND SUKI DOES NOT GUARANTEE THE ACCURACY OR COMPLETENESS OF SUCH OUTPUT; (B) CUSTOMER IS RESPONSIBLE FOR FINAL REVIEW OF POST-PROCESSED DATA INCLUDING ANY CLINICAL NOTES, ORDERS, DIAGNOSES AND OTHER CLINICAL DOCUMENTATION AND/OR TRANSCRIPTS GENERATED BY THE SUKI PLATFORM PRIOR TO RELYING THEREON; (C) SUKI SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY OR COMPLETENESS OF POST-PROCESSED DATA OR FOR ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER (OR ANY AUTHORIZED USER) IN RELIANCE UPON ANY POST-PROCESSED DATA; AND (D) SUKI IS NOT AN EMR PROVIDER AND THE SUKI PLATFORM IS NOT AN EMR SYSTEM.
6. Indemnification
6.1 Indemnity by Suki. Suki will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Suki Platform as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by Suki) Customer in connection with any such Claim; provided that (a) Customer will promptly notify Suki of such Claim, (b) Suki will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Suki may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Suki in connection therewith. If the use of the Suki Platform by Customer has become, or in Suki’s opinion is likely to become, the subject of any claim of infringement, Suki may at its option and expense (i) procure for Customer the right to continue using and receiving the Suki Platform as set forth hereunder; (ii) replace or modify the Suki Platform to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid Fees corresponding to the terminated portion of the applicable subscription term. Suki will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Suki Platform by Customer not in accordance with this Agreement; (C) modification of the Suki Platform by any party other than Suki without Suki’s express consent; (D) Customer Data or (E) the combination, operation or use of the Suki Platform with other applications, portions of applications, product(s) or services where the Suki Platform would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Suki’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
6.2 Indemnification by Customer. Customer will defend Suki against any Claim made or brought against Suki by a third party arising out of the Excluded Claims, and Customer will indemnify Suki for any damages finally awarded against (or any approved settlement) Suki in connection with any such Claim; provided that (a) Suki will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Suki’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Suki of all liability) and (c) Suki reasonably cooperates with Customer in connection therewith.
7. Limitation of Liability
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 OR A BREACH OF CONFIDENTIALITY OR THE LICENSE RESTRICTIONS, UNDER NO LEGAL THEORY (INCLUDING UNDER THE BAA), WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE SOW DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
8. Termination
8.1 Term. The term of this Agreement will commence on execution of the initial order form and continue until terminated as set forth below (the “Term”). The initial Order Form will begin on the effective date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in the applicable Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
8.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms or SOWs then in effect. Each party may also terminate this Agreement (or the corresponding Order Form or SOW) upon written notice in the event (a) the other party commits any material breach of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
8.3 Effect of Termination. Upon termination or expiration of this Agreement, (a) each party (as the receiving party) will return to the other party (the disclosing party), or certify destruction of, all written Confidential Information of the disclosing party in the possession of the receiving party and any other written material in the possession of the receiving party which embodies any Confidential Information of the disclosing party, and will not retain any copies, extracts or other reproductions in whole or in part of such written material (unless destruction is not reasonably practical or technically feasible); and (b) Suki will certify destruction of PHI in its possession (unless such return or destruction is not reasonably practical or is infeasible) in accordance with the terms of the BAA. In connection with termination or expiration of this Agreement, Suki will use commercially reasonable efforts to confirm submission of all pending Post-Processed Data and work in good faith with Customer on the orderly wind-down of each Authorized User’s access to the Suki Platform. Customer understands that once Post-Processed Data is submitted into Customer’s EMR system, Suki has no obligation to provide Customer any additional copies or files of such data.
8.4 Survival. Upon termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and terms and conditions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.
9. General
9.1 Export Compliance. Each party will comply with the export laws and regulations of the United States, European Union and other applicable jurisdictions in providing and using the Suki Platform.
9.2 Publicity. Customer agrees that Suki may use Customer’s name and trademarks in Suki’s marketing materials and website in order to identify Customer as a Suki customer. In addition, Suki may issue a press release following execution of this Agreement regarding Customer’s use of the Suki Platform. Suki may not use Customer’s name or trademarks for any other reason without Customer’s prior written consent (which may be by email), and all approved use of Customer’s trademarks and/or logos shall be subject to Customer’s trademark usage guidelines as provided by Customer to Suki in writing.
9.3 Third-party Products. Suki works with third parties whose technology may be integrated within or interoperable with the Suki Platform (collectively “Licensors”). Suki and Customer acknowledge and agree that the Agreement is between Suki and Customer and is not an agreement with any of Suki’s Licensors. Licensors’ integrated or interoperable products (“Third-party Products”) are subject to alternative terms and conditions that can be viewed at www.suki.ai/legal (“Third party Terms”) and are incorporated herein by reference. Such Third party Terms apply only to those Third-party Products with which they are expressly identified. Such Third-party Products may include products from Epic Systems Corporation (“Epic”). In the event that Customer is utilizing the Epic EMR, the terms and conditions of this Agreement apply along with the additional Epic terms on Appendix A. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE THIRD-PARTY TERMS, ALL THIRD-PARTY PRODUCTS ARE PROVIDED “AS IS”.
9.4 Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.
9.5 Amendment; Waiver. Suki reserves the right in its sole discretion and at any time and for any reason to modify this Agreement. With respect to each Order Form, any modifications to this Agreement, will become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review this Agreement from time to time for any changes or modifications. If Customer does not agree to the modified Agreement, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Any waiver of this Agreement will be only to the specific provision and under the specific circumstances for which it was given and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
9.6 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.
9.7 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.
9.8 Governing Law. This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
9.9 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below.
9.10 Entire Agreement. This Agreement, including all related Exhibits, Appendices, Order Forms and SOWs and the BAA, comprises the entire agreement between Customer and Suki with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written) and apply to the exclusion of any other terms or conditions that either party seeks to impose or incorporate or that are implied by course of dealing. No oral or written information or advice given by Suki, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.
9.11 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.
9.12 Government Terms. Suki provides the Suki Platform, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer (or any of its customers) is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Suki Platform, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Suki Platform was developed fully at private expense.
9.13 Interpretation. For purposes hereof, “including” means “including without limitation”.
Appendix A
Epic Pass-Through Terms
1. If Customer’s EMR provider is Epic, Customer acknowledges and agrees that Epic shall be under no obligation to provide maintenance services or support under the Agreement. Though not applicable to the Suki’s current products, in the event that Epic agrees to provide any maintenance services or support in connection with the Suki Technology it may charge its then current fees for any such services.
2. To the extent Customer is an Epic Customer, Customer understands that neither Epic nor any of its affiliates are responsible in any way for any claim by Customer under the Agreement, including but not limited to claims that the Suki Platform interfered with or could interfere with the safety or security of Epic’s EMR software, or claims that the Suki Platform was used as a vector for the introduction of viruses or malware into the Epic’s EMR software, or claims that the Suki Platform introduced or otherwise caused a security vulnerability in Epic’s EMR software or Customer’s network. Notwithstanding the foregoing, Customer acknowledges that Epic is a third-party beneficiary under the Agreement and will have the right to enforce the Agreement against Suki or Customer.