CLEARWAVE CORPORATION

MOBILE PORTAL™ AND IMMUNIZATION PORTAL WEBSITE

TERMS OF USE

MOBILE APP END USER LICENSE AGREEMENT

Last modified: January 27, 2022

1.              INTRODUCTION

A.            Clearwave provides self-service registration solutions to healthcare providers and patients. Clearwave’s Mobile Pre-Check™ system provides a process that allows patients to complete their registration from any device that can access the internet in advance of their appointment. The mobile Patient Account Creation service (“Mobile Portal”) allows patients to store, edit and manage their clipboard information in the cloud and securely share this information with healthcare providers. Mobile Pre-Check™ is part of the Mobile Portal. Our goal at Clearwave is to allow the patient to create one account and link all of their healthcare providers to this account. Having a single Clearwave account will allow the account holder to reuse the clipboard information that every healthcare provider requires patients to update and complete. Clearwave also offers a mobile app (“Mobile App”) designed to operate on your smartphone, tablet or other mobile computing device (“Mobile Device”), which enables users to check in for any linked service provider appointment, perform a walk-in check in for one of these providers, pay a balance owed to a provider, and manage all account information. For students who receive an invitation code from Clearwave (authorized by the university or other Clearwave partner) and create an account, Clearwave provides access to an immunization website portal (“Immunization Portal”) where the student can submit information regarding various aspects, such as, but not limited to, immunization history, demographics and insurance, related to the enrollment process. Collectively, the services Clearwave provides via the Mobile Portal, the Mobile App, and the Immunization Portal are referred to as the “Service” (it being understood that the Immunization Portal is applicable only to students who receive an invitation and establish the applicable account). The Mobile Portal and the Immunization Portal are together referred to as the “Portals”. The Mobile Portal, Mobile App, and Immunization Portal are referred to collectively as the “Software”.

2.              ACCEPTANCE OF THIS AGREEMENT

A.            By clicking the “I have read and agree to be bound by the Terms of Use” box (for the Portals), or clicking on the “I have read and agree to be bound by the End User License Agreement” box (for the Mobile App), you indicate that (i) these terms of use (for the Portals) and End User License Agreement (for the Mobile App) together with our Privacy Policy (as described below, incorporated herein, and as updated from time to time) (collectively, “Agreement”) form a binding agreement between you as the person who has created your user account (referred to as “you” or “your”) and Clearwave Corporation (referred to as “Clearwave”, “we”, “us”, or “our”) and that you have read and understood the following terms and conditions, and (ii) you represent that you are at least 18 years of age, or the minimum age of legal consent as required by applicable law, whichever is higher to enter into a binding agreement. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, OR USE THE MOBILE PORTAL, THE MOBILE APP OR THE IMMUNIZATION PORTAL, AND YOU SHOULD DELETE THE MOBILE APP FROM YOUR MOBILE DEVICE.

B.             IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE PORTALS, THE MOBILE APP, OR OUR SERVICE. IMPORTANT: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION, AND ALSO CONTAINS A CLASS ACTION WAIVER. Please carefully review Sections 14 and 17 of this Agreement for more information.

C.             We will maintain and use your information according to our privacy policy, located at https://s3.amazonaws.com/cw.privacypolicy/Clearwave+Privacy.v4ai.html, which is incorporated by reference into this Agreement, and which may be modified from time to time in our discretion (“Privacy Policy”), and which will be effective when posted on our website. Your continued use of the Mobile Portal, Mobile App, or Immunization Portal indicates that you agree with such modifications.

3.              CHANGES TO THE AGREEMENT

A.            We periodically update and improve the Service, and may at times remove features in order to improve your ability to use the Service. Because we are constantly trying to improve our Service, this Agreement may also need to change. We reserve the right to amend this Agreement at any time. The updated Agreement will be effective upon our posting of such updated Agreement on our website. You agree to review our website from time to time to review any modifications.

B.             If you don’t agree with the new Agreement, you are free to reject them; but, it will mean you will no longer be able to use the Service. If you use the Service in any way after a change to the Agreement is effective, that means you agree to all of the changes.

C.             The current version of and future modifications to this Agreement will be posted at https://s3.amazonaws.com/cw.termsofuse/termsofuse.html and will be effective immediately upon posting. You agree to review our website from time to time to review any modifications. By continuing to use the Mobile Portal, Mobile App, or Immunization Portal following any such modification, you accept and agree to be bound by such modifications. IF ANY MODIFICATION IS NOT ACCEPTABLE TO YOU, YOUR SOLE AND EXCLUSIVE REMEDY AND RECOURSE IS TO DISCONTINUE USE OF THE MOBILE PORTAL, THE IMMUNIZATION PORTAL, AND THE MOBILE APP. You are responsible for downloading and installing the latest version of the Mobile App software as soon as it becomes available. We shall not be responsible for any consequences of your failing to do so.

4.              LICENSE TO USE THE MOBILE APP

A.            Subject to the terms of this Agreement, we grant you a personal, limited, non-exclusive and nontransferable license to: (i) download, install and use the Mobile App for your personal, non-commercial use on a single Mobile Device owned or otherwise controlled by you, and (ii) access and use on such Mobile Device the Service made available in or otherwise accessible through the Mobile App, strictly in accordance with this Agreement.

5.              GRANT OF RIGHT TO ACCESS THE MOBILE PORTAL (AND, IF INVITED BY US, TO ACCESS THE IMMUNIZATION PORTAL)

A.            Subject to the terms of this Agreement, we grant you a personal, limited, non-transferable, non-exclusive right to access and use the Mobile Portal and, for students who are invited by us and establish an account, the Immunization Portal, provided that (i) your use of the Mobile Portal or Immunization Portal as permitted hereunder is solely for your personal, non-commercial use; (ii) you will use the Mobile Portal or the Immunization Portal only for purposes that are permitted by this Agreement; (iii) you will not alter, adapt or otherwise modify any part of the Mobile Portal or the Immunization Portal other than as may be reasonably necessary to use that part of the Mobile Portal or the Immunization Portal for its intended purpose; (iv) you will use the Mobile Portal or the Immunization Portal in accordance with all applicable laws and regulations; (v) you will otherwise comply in full with this Agreement; and, (vi) you will not distribute or transfer any portion of the Mobile Portal or the Immunization Portal on any media without our prior written approval. Your access to and use of the Mobile Portal, Mobile App, and the Immunization Portal are governed by our Privacy Policy.

6.              USER ACCOUNT CREATION; USER INFORMATION

A.            Account Creation. The first time you complete a Mobile Pre-Check process, use the Mobile App or the Immunization Portal, you will be asked to create an account using your email address. You will be prompted to create a password and enter information for a new account that would use the email on file where you received the appointment reminder or immunization invitation, if applicable, or you can specify a different email to create the account. You will also be prompted to enter a cell phone number, and create a security question and answer, to recover password if forgotten. If you forget your password, we will send you a text message to the cell phone number in your account to reset the password. You will be presented with this Agreement for our Service, which you must accept if you wish to create an account or use the Service. For the Mobile App and the Portals, you can create different “profiles” for different individuals (e.g., family members, or others you may legally represent) that will be under your account, and you will be able to link your account (and any profile on that account) with one or more providers. If you are not yet an account holder, you can use our “Verified Guest” login path for Mobile Pre-Check to pre-register for your Provider Appointment. If you are a student wanting to use the Immunization Portal, after you have registered with your university or other institution, we will send you an email inviting you to authenticate yourself and to set up a user account via the Mobile Portal. You can then upload your immunization history. Students’ accounts are not linked to any providers. You can go to https://m.clearwaveinc.com to access and manage your account.

B.             You represent that you are, or, you are a parent, guardian, or legal representative (e.g., executor/executrix) of, the person whose information is being entered under the account created.

C.             Account Protection. You agree to (i) provide truthful and accurate registration information as requested by us; (ii) promptly inform us of any changes to your registration information, including, but not limited to, your address and email address; (iii) take all reasonable precautions to safeguard access to your password and to prevent unauthorized access to your account or use of the Service; and, (iv) promptly report to us any unauthorized use of your login information or the Service of which you become aware. If you enter incorrect information, deliberately or by accident, you may compromise the accuracy of the results and information you may view in the Portals or the Mobile App. You are responsible for keeping the information in your account up to date. Some of your results and information are related to dates and times, and for the results to be meaningful, it is important that they are calculated based upon the most up-to-date information.

D.            Notice. We may provide you with notices, including those regarding changes to this Agreement, using any reasonable means now known or hereafter developed, including, but not limited to, by email, regular mail, MMS, text message (SMS), messages to you in your account profile, or postings in the Software. Such notices may not be received if you violate this Agreement by accessing the Software in an unauthorized manner. You agree that you are deemed to have received any and all notices that would have been delivered had you accessed the Software in an authorized manner. By providing us with your email address, you consent to our using your email address to send you Service-related notices by email, including any notices required by law, in lieu of communication by postal mail. You also agree that we may send you notifications of activity on the Service to the email address you give us, in accordance with any applicable privacy settings. We may use your email address to send you other messages or content, such as, but not limited to, additions or changes to features of the Service, or special offers. If you do not want to receive such email messages, you may opt out by emailing us your opt-out request. Opting out may prevent you from receiving email messages regarding updates, improvements, special features, announcements, or offers. You may not opt out of Service-related emails.

E.             Unauthorized Use of Your Account. You are responsible for keeping your account login credentials (user name and password) confidential and not sharing them with unauthorized users. If you disclose your login credentials to someone, you are responsible for any use, disclosure, additions, deletions and modifications of your information. You agree to immediately notify us (see our contact information in Section 19.F) of any unauthorized use of your password or account or any other breach of security relating to your account.

F.             You acknowledge that we are not a health advisor, provider, testing lab, or the like, and we do not provide medical, health, or other professional services or advice.

G.            The performance and loading times of the Portals is dependent upon many things that are not in our control, including your own network performance, the age and performance of your computer or Mobile Device, and the availability of internet connectivity.

H.            We are not responsible for supplying any of the equipment or networks required to access the Portals. This remains the responsibility of you as the user.

I.               The information you provide and enter into the Portals and the Mobile App or that may be imported therein from approved and authorized third parties may contain sensitive and personal health information. Our use and disclosure of such information is governed by our Privacy Policy.

7.              AVAILABILITY OF PORTALS

A.            Availability

i.               We shall use commercially reasonable efforts to provide continuous access to the Portals. We do not guarantee that the Portals will be accessible at all times. The Portals may be unavailable during maintenance periods or during an emergency. In addition to normal maintenance, there may be events that will make the Portals inaccessible for a limited amount of time due to unforeseen circumstances.

ii.             We reserve the right to change your password if we believe it’s unsecure.

iii.            We have the right to refuse to provide access to the Portals.

iv.            We have right to cease offering the Portals at any time and in our sole discretion.

B.             We can subcontract services related to the operation and maintenance of the Portals, such as, but not limited to, outside hosting and storage, to third parties, which may be inside or outside the United States.

C.             We reserve the right to deactivate any accounts which have not been active for at least six (6) months. We reserve the right to delete personal information in a deactivated account after the longer of seven (7) years or as required by law.

8.              RESTRICTIONS ON USE

A.            You will not, and will not attempt to:

i.               modify, translate, adapt or otherwise create derivative works or improvements, of the Software or any content or source code;

ii.             reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

iii.            rent, lease, lend, sell, sublicense, assign, distribute, publish, publicly perform or display, transfer or otherwise make available the Software or any features or functionality of the Software, to any third party for any reason, including by making the Software available on a network where it is capable of being accessed by more than one device at any time;

iv.            remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Software;

v.              upload or introduce any virus or malware to the Software;

vi.            interfere with the operation or availability of the Software, or the hardware, software and network(s) used to operate the Software;

vii.          sublicense or transfer any of your rights under this Agreement or otherwise use the Service for the benefit of a third party, to operate a service bureau or for resale of the Service;

viii.         create or access user accounts using any automated means or under false pretenses;

ix.            frame or mirror the Software or reformat it in any way or use deep links;

x.              introduce any keystroke logging or any other monitoring code into the Software; or,

xi.            otherwise use the Service or the Software in any manner that exceeds the scope of the access right described above.

9.              STORAGE AND TRANSFER

A.            By agreeing to this Agreement, you consent to the storing and processing of your personal information, including sensitive information, in the United States. We use a range of measures to safeguard information but these countries may have laws that are different from those of your country of residence. You also consent to your personal information, including sensitive information, being assigned, transferred or conveyed in the event of a business transition such as, but not limited to, a merger, sale, asset or stock acquisition of us by another company, or other transaction or proceeding. In such a case, your information would be used as set out in our Privacy Policy.

10.           INTELLECTUAL PROPERTY RIGHTS

A.            Ownership of all intellectual property and other rights in the Software, including, but not limited to, the software, design, layout, content, links, and the like shall remain with us and our licensors, as applicable. All Software content is protected by copyright and is owned by us or used with permission. We reserve all rights not specifically granted in this Agreement.

B.             Elements of the Software are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part by any means, including but not limited to, the use of framing or mirrors. None of the content for our Software may be retransmitted without our express written consent.

C.             CLEARWAVE, the geometric logo, The Patient’s Choice, as well as other trademarks we use are trademarks or registered trademarks of Clearwave Corporation.

11.           DISCLAIMER OF WARRANTIES

A.            THE MOBILE PORTAL, MOBILE APP, AND IMMUNIZATION PORTAL AND SERVICE ARE PROVIDED TO YOU “AS IS, AS AVAILABLE” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR OWN BEHALF AND ON BEHALF OF OUR AFFILIATES AND OUR AND OUR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE MOBILE PORTAL AND THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WE PROVIDE NO WARRANTY AND MAKES NO REPRESENTATION OF ANY KIND THAT THE MOBILE PORTAL, MOBILE APP, AND IMMUNIZATION PORTAL OR SERVICE WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS.

B.             WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANY OF OUR PROVIDERS, PARTNERS, AFFILIATES, OR HEALTH CONSULTANTS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED: (I) AS TO THE OPERATION OR AVAILABILITY OF THE MOBILE PORTAL, MOBILE APP, AND IMMUNIZATION PORTAL OR THE INFORMATION, CONTENT INCLUDED THEREON; (II) THAT THE MOBILE PORTAL, MOBILE APP, AND IMMUNIZATION PORTAL OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; (III) AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION OR CONTENT PROVIDED THROUGH THE MOBILE PORTAL MOBILE APP, AND IMMUNIZATION PORTAL; OR (IV) THAT THE MOBILE PORTAL, MOBILE APP, AND IMMUNIZATION PORTAL OUR (AND OUR SERVICE PROVIDERS’) SERVERS, THE CONTENT, OR COMMUNICATIONS SENT FROM OR ON BEHALF OF US ARE FREE OF VIRUSES, SCRIPTS, TROJAN HORSES, WORMS, MALWARE, TIME BOMBS OR OTHER HARMFUL COMPONENTS.

C.             SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

12.           LIMITATION OF LIABILITY

A.            TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, OR ANY OF OUR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE MOBILE PORTAL OR THE SERVICES FOR:

i.               PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OR CORRUPTION DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES;

ii.             ANY ACTION YOU TAKE BASED ON THE INFORMATION YOU RECEIVE IN THROUGH OR FROM THE SOFTWARE OR SERVICE;

iii.            YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL;

iv.            THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES;

v.              THE IMPROPER AUTHORIZATION FOR THE SERVICE BY SOMEONE CLAIMING SUCH AUTHORITY;

vi.            STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR,

vii.          DIRECT DAMAGES IN AMOUNTS THAT IN EXCEED ONE HUNDRED DOLLARS (U.S.). THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OR CAUSE OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

B.             SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

C.             WE DO NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE MOBILE PORTAL MOBILE APP, IMMUNIZATION PORTAL OR THE SERVICE, OR ANY RELATED SERVICES. THE OPERATION OF THE MOBILE PORTAL MOBILE APP, AND IMMUNIZATION PORTAL MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OUR CONTROL.

D.            UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE MOBILE PORTAL, MOBILE APP, OR IMMUNIZATION PORTAL INCLUDING, BUT NOT LIMITED TO, RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE MOBILE PORTAL, MOBILE APP, AND IMMUNIZATION PORTAL OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS, OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, DATA, AND INFORMATION SUBMITTED TO THE MOBILE PORTAL, MOBILE APP, OR IMMUNIZATION PORTAL.

E.             IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. IF YOU ARE A RESIDENT OF A STATE WITH PROTECTIONS SIMILAR TO CALIFORNIA CIVIL CODE §1542, YOU HEREBY WAIVE SUCH PROVISIONS OR PROTECTIONS.

13.           INDEMNIFICATION.

A.            You agree to indemnify, defend and hold us and our officers, directors, employees, agents, affiliates, service providers, successors and assigns harmless from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and costs, arising from or relating to (i) your use or misuse of the Software; (ii) your breach of this Agreement; (iii) any user content you submit, post to or transmit through the Software or the Service; or, (iv) your violation of any third party’s rights, including, but not limited to, intellectual property rights, right of privacy, right of publicity and confidentiality.

14.           DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION.

A.            The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the Software shall be by binding non-appearance-based arbitration (the provisions of this Section 14 being referred to as the “Arbitration Agreement”). In the event a party elects arbitration, they shall initiate such arbitration before a single arbitrator through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties, or, if no agreement is reached within ten (10) days of a request for agreement, then according to the rules (“Rules”) of the American Arbitration Association. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction. All aspects of the arbitration shall be treated as confidential, as provided in the Rules. Before making any disclosure permitted by the Rules, a party shall give written notice to the other party and afford such party a reasonable opportunity to protect its interests. Notwithstanding the foregoing, we may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Software, disclosure of our confidential information or trade secrets, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in the dispute resolution process described above. Any proceeding to enforce this Arbitration Agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. If you or we pursue arbitration, the arbitration action must be initiated within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the relevant claim.

B.             Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

C.             Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to the arbitration provisions of this Arbitration Agreement.

15.           GOVERNING LAW

A.            All disputes arising out of or relating to the Agreement shall be governed by Georgia law regardless of your country of origin or where you access the Mobile Portal, Mobile App, Immunization Portal, or the Service, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods.

16.           EQUITABLE RELIEF

A.            Notwithstanding anything herein to the contrary, either party may bring a claim related to intellectual property rights, or seek temporary and preliminary specific performance and injunctive relief, in any court of competent jurisdiction, without the posting of bond or other security.

17.           CLASS ACTION WAIVER

A.            Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor we will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity, and each party hereby waives any right to assert consolidated claims with respect to any disputes subject to arbitration under this Agreement or any disputes between the parties. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

18.           WAIVER OF JURY TRIAL

A.            Each party irrevocably and unconditionally waives any right it may have to a trial by jury for any legal action arising out of or relating to this Agreement or the transactions contemplated hereby

19.           MISCELLANEOUS

A.            Limitation of Time to File Claims. Any action, claim or dispute you have against us must be filed within one year. To the extent permitted by law, any claim or dispute under this Agreement must be filed within one year in an arbitration proceeding. The one-year period begins when the claim or notice of dispute first could be filed. If a claim or dispute is not filed within one year, it is permanently barred.

B.             Notices. You agree that we may provide you with notices, including those regarding changes to this Agreement, by email to the address you provided at the time of registration or as changed in your account profile.

C.             Independent Contractors. The parties intend that an independent contractor relationship will be created by this Agreement, and that no additional partnership, joint venture, employee, employer or other relationship is intended. You agree not to hold yourself out as in any way sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of Clearwave, any of our affiliates or service providers.

D.            Entire Agreement. This Agreement constitutes the entire agreement between you and us with respect to the Mobile Portal, Mobile App, Immunization Portal, and the Service and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect thereto. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect. The headings of sections and paragraphs in this Agreement are for convenience only and shall not affect its interpretation.

E.             Assignment. You may not assign, transfer or convey this Agreement or any obligations thereunder without our prior written consent. Any assignment, transfer or conveyance by you in violation of this Agreement shall be of no power or effect.

F.             Contact Information. Should you wish to contact us with any questions, complaints or claims with respect to the Software or the Service, please email us at cwaccountsupport@clearwaveinc.com.

20.           INCORPORATION OF APPLE. INC. LICENSED SOFTWARE END USER LICENSE AGREEMENT

The following terms of this Section 20 shall apply to the Mobile App for users of Apple-manufactured devices.

A.            This Agreement incorporates by reference the Licensed Software End User License Agreement (the “LSEULA”) published by Apple, Inc. (located online at http://www.apple.com/legal/itunes/appstore/dev/stdeula/). For purposes of this Agreement, the “Mobile App” is considered the “Licensed Software” as defined in the LSEULA and we are considered the “Software Provider” as defined in the LSEULA. If any terms of this Agreement conflict with the terms of the LSEULA, the terms of this Agreement shall control.

B.             Acknowledgement. We and you, the end-user of the Mobile App, acknowledge that the Agreement is entered into by and between us and you, and is not with Apple, Inc. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this Agreement and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this Agreement. We are solely responsible for the Mobile App and any content contained therein. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the Mobile App. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) you are not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce.