ClinicallyAI Terms of Service CONTINUUM

These Terms of Service (“ToS”) are supplemental terms and conditions governing Customer’s access to and use of the Software Services (as defined below), a service offering and part of ContinuumCloud’s Services. The Software Services are provided by Clinical Notes AI, Inc. (dba Clinically AI), a Delaware corporation with its principal place of business at 17605 Via Del Campo, San Diego, California 92127 (“Company”). By signing an Order Form or Statement of Work that references the Master Services Agreement (“MSA”) and this ToS, or by using any of the Software Services, Customer accepts the terms and conditions of the MSA and any Terms of Service (located at www.continuumcloud.com/customeragreements/) associated with the services referenced in the Order Form or SOW executed by Customer. This ToS, the MSA, and any executed Order Forms and/or SOWs are collectively referred to herein as this “Agreement.” Capitalized terms have the definitions set forth in the MSA or herein. To the extent that a conflict arises between the terms and conditions of this ToS and the terms of the MSA, the terms and conditions of this ToS will govern. By executing an Order Form referencing this ToS, Customer represents that it has had the opportunity to review these terms and agrees to be bound by them.

1. THE SOFTWARE SERVICES

1.1. Service Description. The “Software Services” means the Company’s artificial intelligence–powered clinical documentation and workflow software services, including all related features, integrations, updates, and documentation (“Documentation”), made available to Customer as part of ContinuumCloud’s Services. The Software Services are designed to assist licensed healthcare professionals with clinical documentation, note generation, workflow automation, and related administrative tasks within the healthcare setting. Additional information is available at www.clinicalnotes.ai.

1.2. Integration with ContinuumCloud. The Software Services are made available to Customer as part of Customer’s ContinuumCloud subscription. Customer’s billing and commercial relationship for the Software Services is administered by ContinuumCloud under the MSA and applicable Order Forms. Company is directly responsible for all aspects of service delivery, including implementation, system configuration, onboarding and training of Authorized Users, ongoing technical support, and all service level and other obligations set forth in this ToS. For all service delivery, implementation, support, and technical matters relating to the Software Services, Customer’s primary point of contact is Company. Company and ContinuumCloud have entered into a separate commercial arrangement governing the distribution of the Software Services.

1.1. Order of Precedence. In the event of any conflict between this ToS and the MSA with respect to the Software Services, this ToS shall control. The Business Associate Agreement (“BAA”) executed between Company and Customer shall control over both this ToS and the MSA with respect to Protected Health Information, as defined under HIPAA.

2. LICENSE AND ACCESS

2.1. License Grant. Subject to the terms and conditions of this Agreement and Customer’s timely payment of all applicable Fees, Company grants Customer a non-exclusive, non-transferable, non-sublicensable license to access and use the Software Services solely for Customer’s internal business purposes during the term set forth in the applicable Order Form or as subsequently established pursuant to Section 12.2 (the “Subscription Term”). ContinuumCloud will provide Customer with the necessary credentials and technical access as may be necessary to allow Customer and its Authorized Users to access the Software Services.[BM1]

2.2. Authorized Users. Customer may permit its employees and authorized contractors (“Authorized Users”) to access and use the Software Services in accordance with this Agreement. Customer is responsible for all acts and omissions of its Authorized Users in connection with the Software Services. Customer shall ensure that each Authorized User completes any required orientation or acknowledgment presented within the Software Services prior to first use.

2.3. Restrictions. Customer will not, and will not permit any Authorized User or other party to:

(a) sublicense, sell, resell, transfer, distribute, or otherwise make the Software Services available to any third party other than Authorized Users;

(b) reverse engineer, decompile, disassemble, or attempt to derive or determine the source code, algorithms, or underlying ideas of the Software Services;

(c) modify, copy, or create derivative works based on the Software Services or its Documentation;

(d) access or use the Software Services to build, train, benchmark, or improve any artificial intelligence model, competing product, or competing service;

(e) use the Software Services in any manner inconsistent with applicable law or this Agreement;

(f) remove, obscure, or alter any proprietary notices or labels on the Software Services; or

(g) use the Software Services in connection with any time-critical or mission-critical function for which software failure could result in direct harm to individuals.

3. CLINICAL RESPONSIBILITY

3.1. AI Output Not a Substitute for Clinical Judgment. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE SERVICES USE ARTIFICIAL INTELLIGENCE TO ASSIST WITH CLINICAL DOCUMENTATION AND WORKFLOW AND THAT ALL AI-GENERATED OUTPUTS, SUGGESTIONS, SUMMARIES, AND CLINICAL NOTES (“AI OUTPUT”) ARE TOOLS TO SUPPORT, AND NOT REPLACE, THE INDEPENDENT CLINICAL JUDGMENT OF LICENSED HEALTHCARE PROFESSIONALS. COMPANY DOES NOT PRACTICE MEDICINE, DOES NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, AND DOES NOT INTERFERE WITH THE PRACTICE OF MEDICINE OR ANY OTHER LICENSED PROFESSION.

3.2. Clinician Responsibility. Customer accepts full responsibility for ensuring that all AI Output is reviewed, verified, and approved by a qualified, licensed clinical professional prior to inclusion in any patient record, submission to any payer, or use in any clinical decision. Customer acknowledges that:

(a) AI Output may contain errors, omissions, or inaccuracies and must be reviewed by a licensed clinician before use;

(b) the clinical professional reviewing and finalizing any documentation generated using the Software Services is solely responsible for the accuracy, completeness, and appropriateness of that documentation;

(c) the Software Services do not guarantee that AI Output will satisfy any specific clinical, regulatory, or payer documentation requirement;

(d) Customer is responsible for providing adequate training to all Authorized Users on the capabilities and limitations of the Software Services prior to clinical use; and

(e) Customer shall implement and maintain electronic health record (“EHR”) reconciliation procedures to verify that AI-generated notes and documentation are accurate and complete before finalization in the EHR.

3.3. Emergency Situations. THE SOFTWARE SERVICES ARE NOT DESIGNED, TESTED, OR INTENDED FOR USE IN MEDICAL EMERGENCIES OR OTHER TIME-CRITICAL CLINICAL SITUATIONS. CUSTOMER AGREES THAT THE SOFTWARE SERVICES WILL NOT BE USED AS A PRIMARY OR SOLE CLINICAL DECISION SUPPORT TOOL IN EMERGENCY SITUATIONS. CUSTOMER MUST ENSURE THAT ALL AUTHORIZED USERS RETAIN THE ABILITY TO OVERRIDE, DISREGARD, OR BYPASS AI OUTPUT AT ANY TIME IN THE EXERCISE OF THEIR INDEPENDENT CLINICAL JUDGMENT.

3.4. Regulatory Compliance. Customer is solely responsible for ensuring that its use of the Software Services complies with all applicable federal, state, and local laws and regulations governing the delivery of healthcare services, clinical documentation, medical recordkeeping, patient privacy, telehealth, and the use of artificial intelligence in clinical settings. Company makes no representation or warranty that the Software Services satisfy any specific federal, state, or local jurisdictional requirement for the provision of medical services or clinical documentation, except as expressly set forth in the applicable product Documentation for specific features of the Software Services.

4. CUSTOMER DATA AND PRIVACY

4.1. Customer Data Ownership. All right, title, and interest in Customer Data belongs to and is retained solely by Customer. “Customer Data” means all data, records, and information submitted to, processed by, or generated from the Software Services by Customer or its Authorized Users, including Protected Health Information. Nothing in this Agreement transfers any rights in Customer Data to Company except as expressly set forth herein.

4.2. License to Use Customer Data. Customer grants Company a limited, non-exclusive, non-transferable license to access, process, and use Customer Data solely as necessary to provide the Software Services and fulfill Company’s obligations under this Agreement and the BAA.

4.3. De-Identified and Aggregated Data. Notwithstanding Section 4.1, Company may generate, use, and commercialize De-Identified and Aggregated Data derived from Customer Data. “De-Identified and Aggregated Data” means data that (a) has been de-identified in accordance with the HIPAA Safe Harbor method (45 C.F.R. § 164.514(b)) or Expert Determination method (45 C.F.R. § 164.514(b)(1)) such that it cannot reasonably identify Customer, any Authorized User, or any individual, and (b) has been combined or aggregated with data from other sources. Company shall: (i) implement and maintain appropriate technical and organizational safeguards to prevent re-identification; (ii) not attempt to re-identify De-Identified and Aggregated Data; and (iii) not use De-Identified and Aggregated Data in any manner that violates applicable law. De-Identified and Aggregated Data may be used for analytics, benchmarking, research, product development, and other lawful commercial purposes.

4.4. Business Associate Agreement. The Software Services involve access to and processing of Protected Health Information. The Company's standard BAA is available at www.clinicalnotes.ai. Customer is required to execute the BAA prior to first accessing the Software Services or providing any PHI to Company. Company will provide the BAA for execution as part of the Order Form process. The BAA is incorporated into this Agreement by reference upon execution. Company may withhold or suspend access to the Software Services until a fully executed BAA is in place. In the event of a conflict between this ToS and the BAA with respect to Protected Health Information, the BAA shall control.

4.5. CCPA. With respect to the California Consumer Privacy Act (“CCPA”), Company is a Service Provider to Customer with respect to Personal Information. Company shall not (a) Sell Personal Information, or (b) retain, use, or disclose any Personal Information for any purpose other than the specific purpose of providing the Software Services, including retaining, using, or disclosing Personal Information for a Commercial Purpose outside the direct business relationship between Company and Customer. The terms “Commercial Purpose,” “Personal Information,” “Sell,” and “Service Provider” have the meanings set forth in the CCPA.

4.6. Publicity. Customer grants Company a limited, non-exclusive, non-transferable, royalty-free license to use Customer’s name and logo solely to identify Customer as a client in Company’s marketing and promotional materials. Company shall obtain Customer’s prior written approval before publishing any case study, testimonial, or press release that quotes or specifically attributes content to Customer. Customer may revoke general name/logo use at any time by written notice to Company, in which case Company will cease such use within thirty (30) days.

5. DATA SECURITY

5.1. Security Program. Company will maintain a comprehensive data security program that includes administrative, physical, and technical safeguards designed to ensure the confidentiality, integrity, security, and availability of Customer Data (“Security Program”). The Security Program shall comply with applicable HIPAA Security Rule requirements (45 C.F.R. Parts 160–164, Subpart C) and be consistent with industry-standard practices for healthcare software services. Without limiting the foregoing, the Security Program includes encryption of Customer Data using AES-256 or equivalent at rest and TLS 1.2 or higher in transit, multi-factor authentication for administrative and remote access to systems processing Customer Data, annual security awareness training for personnel with access to Customer Data, and annual testing of Company's incident response plan. Company shall not materially decrease the overall security of the Software Services during the Subscription Term.

5.2. Data Centers and Backup. Company shall ensure that all Customer Data is stored and processed on servers located within the United States, using commercially available cloud infrastructure that provides geographic redundancy and high availability in accordance with the provider's enterprise-grade service commitments.

5.3. Breach Notification. Company will notify Customer within seventy-two (72) hours of discovering a security incident that has resulted in, or may reasonably result in, unauthorized access to, use of, or disclosure of Customer Data. Such notification shall include, to the extent known at the time: (a) a description of the nature of the incident; (b) the categories of Customer Data affected; (c) measures taken or proposed to address the incident; and (d) a designated contact for further information. Company shall provide prompt supplemental notice as additional information becomes available. Notification under this Section is in addition to, and does not replace, any PHI breach notification obligations under the BAA.

5.4. Security Audit. Company will conduct formal information security risk assessments and network penetration tests at least bi-annually. Company will also engage an independent third party to conduct a security audit (SOC 2 Type II or equivalent) no less than annually. Company will provide Customer with a summary of audit findings upon written request, subject to reasonable confidentiality protections. Company will promptly remediate any material deficiencies identified.

6. INTELLECTUAL PROPERTY

6.1. Company Ownership. The Software Services, all underlying software, artificial intelligence models, training data, algorithms, Documentation, and all improvements, enhancements, modifications, and derivative works thereof are and remain the sole and exclusive property of Company (“Company IP”). This Agreement does not transfer any ownership interest in any Company IP to Customer. Customer’s rights are limited to the license expressly granted in Section 2.1.

6.2. Feedback License. Customer hereby grants Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license to use any feedback, suggestions, ideas, or evaluations provided by Customer or its Authorized Users regarding the Software Services (“Feedback”) for any purpose, including product development and improvement, without obligation of compensation or attribution.

6.3. Third-Party Components and Services. The Software Services may incorporate third-party or open-source software components, which are subject to their respective license terms. Company will make a list of material third-party components available to Customer upon written request. The Software Services also rely on or integrate with third-party service providers, including cloud infrastructure providers, artificial intelligence model providers, and EHR systems (“Third-Party Services”). Company does not control Third-Party Services and is not responsible for their availability, performance, accuracy, or security. Company will not be liable for any failure, interruption, degradation, or unavailability of the Software Services to the extent caused by a Third-Party Service. Company will use commercially reasonable efforts to select reputable Third-Party Service providers and to notify Customer of any material Third-Party Service disruption that affects the Software Services.

7. SERVICE LEVEL COMMITMENT

7.1. Uptime Target. During the Subscription Term, Company commits to providing 99.5% availability of the Software Services per calendar month, excluding scheduled and emergency maintenance (“Service Availability”). Service Availability is calculated as: ((total minutes in month − Unplanned Downtime) ÷ total minutes in month) × 100. “Unplanned Downtime” means any period during which the Software Services are not reasonably accessible, excluding maintenance and downtime caused by Customer’s or a third party’s equipment, software, or services outside of Company’s direct control.

7.2. Maintenance. Scheduled maintenance is communicated to Customer by email or through the platform at least forty-eight (48) hours in advance and does not count as Unplanned Downtime. Company may take the Software Services offline for emergency maintenance (“Emergency Maintenance”) to address critical security vulnerabilities, stability issues, or regulatory compliance requirements; Company will notify Customer as promptly as practicable. Emergency Maintenance outside of “Off-Peak Hours” (10:00 PM to 6:00 AM Customer’s local time, Monday through Friday, and all day Saturday and Sunday) will be minimized to the extent operationally feasible.

7.3. Response Times. Company will respond to and use commercially reasonable efforts to resolve reported defects in accordance with the following priority matrix:

1.1. Service Credits. If Service Availability falls below 99.5% in any calendar month and Customer was negatively impacted, Company will provide, as Customer’s sole and exclusive remedy for that failure, a Service Credit applied to Customer’s next invoice as follows: (a) less than 99.5% and at or above 99.0%: credit equal to 5% of the monthly fee for the Software Services; (b) below 99.0%: credit equal to 10% of the monthly fee; provided, however, that the Total Service Credits issued in any calendar month shall not exceed 25% of the monthly fee for the Software Services. To receive a Service Credit, Customer must submit a written request to Company within thirty (30) days of the end of the affected month with supporting detail. No Service Credit will be issued if Customer’s account is past due. Service Credits do not apply to downtime resulting from Customer’s acts, omissions, or third-party services outside Company’s control.

1.2. Suspension and Discontinuation. Company reserves the right to suspend or discontinue the Software Services, or any feature or component thereof, at any time (a) to comply with applicable law or regulatory requirements, (b) to address a material security vulnerability or risk to Company’s systems or other customers, or (c) upon at least ninety (90) days’ prior written notice for any other reason. In the event of a planned discontinuation, Company will use commercially reasonable efforts to provide Customer with an opportunity to export Customer Data prior to the effective date.

2. WARRANTIES AND DISCLAIMERS
2.1. Limited Warranty. Company warrants that during the Subscription Term: (a) this Agreement accurately describes the administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data; (b) Company will not materially decrease the overall security of the Software Services; (c) the Software Services will perform materially in accordance with the applicable Documentation; and (d) Company will not materially decrease the overall functionality of the Software Services without written notice to Customer.

2.2. Exclusive Remedy. If Company breaches the limited warranty in Section 8.1, Customer's sole and exclusive remedy is for Company to use commercially reasonable efforts to correct the non-conformity within thirty (30) days of receiving written notice describing the issue in reasonable detail. Nothing in this Section limits either party's right to terminate for material breach under Section 11.2.

2.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, THE SOFTWARE SERVICES AND ALL RELATED DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR COURSE OF DEALING. COMPANY DOES NOT WARRANT THAT THE SOFTWARE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS CAN BE CORRECTED, OR THAT AI OUTPUT WILL BE ACCURATE, COMPLETE, OR SUITABLE FOR ANY PARTICULAR CLINICAL PURPOSE.

2.4. Medical Practice Disclaimer. COMPANY DOES NOT PRACTICE MEDICINE, PROVIDE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, OR ENGAGE IN THE PRACTICE OF ANY OTHER LICENSED HEALTHCARE PROFESSION. THE SOFTWARE SERVICES ARE A TECHNOLOGY PLATFORM DESIGNED TO ASSIST LICENSED HEALTHCARE PROFESSIONALS WITH CLINICAL DOCUMENTATION AND WORKFLOW TASKS. COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT AI OUTPUT GENERATED BY THE SOFTWARE SERVICES WILL MEET ANY STATE OR FEDERAL CLINICAL DOCUMENTATION REQUIREMENT OR STANDARD OF CARE.

3. LIMITATION OF LIABILITY
3.1. Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY NOR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE, GOODWILL, BUSINESS INTERRUPTION, OR LOSS OR CORRUPTION OF DATA (EXCEPT TO THE EXTENT RESULTING FROM A PARTY’S BREACH OF ITS DATA SECURITY OR PRIVACY OBLIGATIONS UNDER THIS AGREEMENT), ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE SERVICES, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

3.2. General Liability Cap. EXCEPT AS SET FORTH IN SECTION 9.3, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE SERVICES WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE SOFTWARE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR THE AVOIDANCE OF DOUBT, LIABILITY UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES ONLY.

3.3. Super Cap. THE LIMITATION SET FORTH IN SECTION 9.2 WILL NOT APPLY TO THE FOLLOWING, FOR WHICH EACH PARTY’S TOTAL AGGREGATE LIABILITY WILL NOT THE GREATER OF (A) TWO (2) TIMES THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE SOFTWARE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) THE AMOUNTS RECOVERABLE UNDER COMPANY’S APPLICABLE CYBER LIABILITY INSURANCE POLICY: (a) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; (b) COMPANY’S BREACH OF ITS SECURITY AND PRIVACY OBLIGATIONS UNDER AN APPLICABLE BUSINESS ASSOCIATE AGREEMENT; (c) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.

3.4. Unlimited Liability. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE A PARTY’S LIABILITY FOR FRAUD OR WILLFUL MISCONDUCT.

3.5. Allocation of Risk. THE PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS SECTION 9 AND THAT THIS SECTION 9 IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

3.6. Insurance Alignment. Nothing in this Agreement requires Company to obtain or maintain insurance coverage in excess of commercially reasonable limits for companies of similar size and risk profile.

4. INDEMNIFICATION
4.1. By Company.
(a) IP Indemnity. Company will, at its expense, defend Customer and its affiliates and their respective officers, directors, and employees (“Customer Indemnified Parties”) from and against any third-party claim alleging that the Software Services, as provided by Company and used by Customer in accordance with this Agreement, directly infringe a United States copyright, patent, trademark, or misappropriate a trade secret, and will pay damages finally awarded or amounts agreed in settlement. Company’s obligations under this Section 10.1(a) are conditioned upon Customer promptly ceasing use of the allegedly infringing Software Services upon notice and complying with Company’s reasonable mitigation instructions.

(b) BAA Indemnity. Company will defend and indemnify Customer Indemnified Parties from and against third-party claims to the extent directly caused by Company’s material breach of its obligations under an applicable Business Associate Agreement to the extent directly caused by Company’s material breach. THIS SECTION 10.1(b) STATES COMPANY’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY WITH RESPECT TO CLAIMS ARISING FROM COMPANY’S BREACH OF AN APPLICABLE BUSINESS ASSOCIATE AGREEMENT.

(c) Exclusions. Company’s obligations under this Section 10.1 do not apply to claims arising from: (i) Customer Data, customer prompts, or other materials provided by Customer or Authorized Users; (ii) AI Output or the use of AI Output, except to the extent the alleged infringement is caused solely by Company Materials and not by Customer Data, prompts, or instructions; (iii) use of the Software Services in combination with software, hardware, systems, or data not provided by Company, where the alleged infringement relates to such combination; (iv) modification of the Software Services other than by Company; (v) use of the Software Services other than as authorized by this Agreement or the Documentation; (vi) failure to implement Updates made available by Company; (vii) clinical decisions, medical judgments, documentation determinations, coding decisions, reimbursement submissions, or other professional determinations made by Customer or its personnel; or (viii) Customer’s violation of applicable law.

(d) Mitigation. If the Software Services become, or in Company’s reasonable determination are likely to become, the subject of a claim described in Section 10.1(a), Company may, at its option and expense: (i) obtain the right for Customer to continue using the Software Services; (ii) modify or replace the affected portion of the Software Services to make them non-infringing while maintaining materially equivalent functionality; or (iii) if neither option is reasonably available, terminate the affected portion of the Software Services and refund prepaid fees for the unused portion of the applicable Subscription Term.

(e) Sole Remedy. THIS SECTION 10.1 STATES COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD-PARTY INTELLECTUAL PROPERTY CLAIMS.

4.2. By Customer. Customer will defend, indemnify, and hold harmless Company and its affiliates and their respective officers, directors, and employees (“Company Indemnified Parties”) from and against any third-party claims to the extent arising from: (a) Customer Data or customer prompts, except to the extent such claim is caused by Company’s breach of this Agreement or the BAA; (b) Customer’s use of AI Output; (c) Clinical decisions, medical judgments, documentation determinations, coding decisions, reimbursement submissions, or other professional determinations made by Customer or its personnel; (d) Customer’s violation of applicable federal, state, or local law or regulatory requirements; or (e) Customer’s use of the Software Services other than in accordance with this Agreement or the Documentation.

4.3. Procedures. The indemnified party must promptly notify the indemnifying party in writing of any claim for which indemnification is sought, provided that failure to provide prompt notice will relieve the indemnifying party of its obligations only to the extent materially prejudiced. The indemnifying party will have sole control of the defense and settlement of the claim, provided that the indemnifying party may not settle any claim in a manner that: (a) admits liability on behalf of the indemnified party; (b) imposes injunctive or other non-monetary relief on the indemnified party; or (c) requires payment by the indemnified party, without the indemnified party’s prior written consent, not to be unreasonably withheld. The indemnified party may participate in the defense at its own expense.

5. TERM AND TERMINATION
5.1. Term. This ToS is effective as of the date of Customer’s execution of the applicable Order Form and continues for the Subscription Term set forth therein (or as otherwise modified by Section 12.2).

5.2. Termination for Cause. Either party may terminate this ToS upon written notice if the other party materially breaches this ToS and fails to cure such breach within thirty (30) days after receiving written notice specifying the breach in reasonable detail; provided, however, that if a breach is not capable of cure, termination may be effective upon notice. Company may also terminate this ToS immediately upon notice if Customer uses the Software Services (a) in a manner that poses a material security risk or legal liability to Company or its other customers, or (b) in violation of applicable law or regulation governing the use of artificial intelligence in clinical settings.[BM1]

5.3. Effect of Termination. Upon expiration or termination of this ToS: (a) all licenses granted hereunder immediately terminate and Customer will cease all use of the Software Services; (b) each party will securely erase or return the other party’s Confidential Information within thirty (30) days; and (c) Company will make Customer Data available for export in an industry-standard format for a period of thirty (30) days following termination, after which Company may delete Customer Data in accordance with the BAA and applicable law.

5.4. Survival. Sections 1.3 (Order of Precedence), 3 (Clinical Responsibility), 4.3 (De-Identified Data), 4.5 (CCPA), 6 (Intellectual Property), 9 (Limitation of Liability), 10 (Indemnification), 11.3 (Effect of Termination), and 12 (Miscellaneous) survive expiration or termination of this ToS.

5.5. EHR Changes and Migration.
(a) Continuation of Services. Customer's subscription to the Software Services continues independently of any change to Customer's EHR, including any migration to a new EHR or termination of any separate agreement with ContinuumCloud. Neither an EHR change nor the termination of Customer's ContinuumCloud subscription will automatically terminate this ToS or relieve Customer of its payment obligations hereunder.

(b) EHR Incompatibility. If the Software Services cease to function with Customer's then-current EHR due to changes made by the EHR vendor, Company will use commercially reasonable efforts to restore functionality within ninety (90) days following Customer's written notice describing the incompatibility in reasonable detail. If the Software Services are materially impaired during this cure period, Customer will receive a Service Credit equal to 10% of the monthly fee for each calendar month in which the impairment continues, subject to the monthly cap in Section 7.4.

(c) EHR Migration. If Customer migrates to a new EHR, Company will use commercially reasonable efforts to support the Software Services with the new EHR within one hundred twenty (120) days following Customer's written notice of the migration, provided that Customer gives Company reasonable advance notice and provides necessary access, cooperation, and technical information. If the Software Services are materially impaired during this cure period, Customer will receive a Service Credit equal to 10% of the monthly fee for each calendar month of impairment, subject to the monthly cap in Section 7.4.

(d) Termination After Cure Period. If Company is unable to restore material functionality within the applicable cure period after using commercially reasonable efforts, Customer may terminate this ToS upon written notice and will receive a pro rata refund of any prepaid fees for the unused portion of the Subscription Term. The remedies in this Section 11.5 are Customer's sole and exclusive remedies for EHR incompatibility or migration-related service impairment.

6. FEES
6.1. ContinuumCloud-Administered Billing. Fees for the Software Services are set forth in the applicable Order Form executed between Customer and ContinuumCloud. All payment obligations, billing mechanics, invoicing, overdue charges, suspension for non-payment, and payment dispute procedures are governed exclusively by Customer’s MSA with ContinuumCloud. Company’s right to suspend or terminate Customer’s access to the Software Services for non-payment shall be co-extensive with ContinuumCloud’s right to suspend under the MSA, and Company may exercise such right upon notice from ContinuumCloud that Customer’s account is subject to suspension.

6.2. Direct Billing Upon ContinuumCloud Termination. If Customer's MSA with ContinuumCloud is terminated or expires and Customer elects to continue using the Software Services, Company and Customer will execute a direct order form on Company paper (the “Company Order Form”) governing the continued subscription. The Company Order Form will set forth applicable fees, billing frequency, and payment terms. Unless otherwise agreed in the Company Order Form, fees will be billed annually in advance. Invoices are due within thirty (30) days of issuance. Overdue amounts accrue interest at 1.5% per month or the maximum rate permitted by law, whichever is lower. Company may suspend access to the Software Services upon ten (10) days' written notice if any invoice remains unpaid past its due date.

7. MISCELLANEOUS
7.1. Governing Law and Dispute Resolution. This ToS is governed by the laws of the State of Delaware, without regard to its conflict of laws principles. Any dispute arising under or relating to this ToS shall be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, at a location mutually agreed by the parties or, absent agreement, at the AAA regional office nearest to Customer’s principal place of business. An arbitration award may be confirmed in any court of competent jurisdiction.

7.2. Changes to Terms. Company may update or modify this ToS from time to time to reflect changes in applicable law, Company’s services, or industry practices. Company will provide at least thirty (30) days’ advance notice of material changes by email, through the Software Services, or by posting the updated ToS at www.continuumcloud.com/customeragreements/. Continued use of the Software Services after the effective date of any change constitutes Customer’s acceptance of the updated ToS. If Customer reasonably believes a change materially and adversely affects its rights, Customer may notify Company in writing within the thirty (30)-day notice period and the parties will work in good faith to resolve the concern.

7.3. Taxes. Fees for the Software Services are exclusive of all taxes, levies, duties, tariffs, and similar governmental assessments, including sales, use, and value-added taxes (“Taxes”). Customer is responsible for all Taxes associated with its use of the Software Services, except for taxes assessed on Company’s net income. Tax obligations are administered through Customer’s Order Form and MSA with ContinuumCloud.

7.4. Assignment. Neither party may assign, subcontract, delegate, or otherwise transfer its rights or obligations under this ToS without the prior written consent of the other party; provided, however, that either party may assign this ToS without consent in connection with a merger, acquisition, or sale of all or substantially all of its assets to a non-competitor, provided the assignee assumes all obligations hereunder. Any purported assignment in violation of this Section is null and void. This ToS binds and inures to the benefit of the parties and their respective permitted successors and assigns.

7.5. Non-Solicitation. During the Subscription Term and for a period of twelve (12) months following expiration or termination of this ToS, neither party will, directly or indirectly, solicit for employment or engagement any employee or contractor of the other party who was involved in the performance or receipt of services under this Agreement, without prior written consent. This restriction does not apply to individuals who respond to a general advertisement or job posting not specifically targeted at the other party’s personnel.

7.6. Export Control. The Software Services may be subject to U.S. export control laws, including the Export Administration Act and its associated regulations. Customer will not use or export the Software Services in violation of any applicable U.S. export laws or regulations, including to any individual or entity on a restricted party list or in any embargoed or sanctioned jurisdiction. Customer will comply with all applicable export control laws and will obtain any required licenses or government approvals prior to exporting or re-exporting the Software Services.

7.7. Force Majeure. Neither party will be in breach of this ToS for any delay or failure in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, pandemic, governmental orders, labor disputes, or failures of third-party telecommunications or cloud infrastructure, provided that the affected party (a) provides prompt written notice to the other party and (b) uses reasonable efforts to resume performance as soon as practicable. Payment obligations are not excused by force majeure events.

7.8. Notices. Notices under this ToS may be delivered by email (with confirmation of receipt) for routine matters. Notices relating to breach, termination, or indemnification must be delivered in writing by nationally recognized overnight courier or certified mail (return receipt requested) to the address set forth in the applicable Order Form, or to: Clinical Notes AI, Inc. dba Clinically AI, 17605 Via Del Campo, San Diego, California 92127, Attn: Legal.

7.9. Severability and Waiver. If any provision of this ToS is held invalid or unenforceable, the remaining provisions remain in full force and effect, and the invalid provision will be modified to the minimum extent necessary to make it valid and enforceable. Any waiver of a provision of this ToS must be in writing. Failure to enforce any provision on one occasion does not constitute a waiver of that provision or any other provision.


Entire Agreement. This ToS, together with the MSA, any executed Order Forms and SOWs, and the BAA (if applicable), constitutes the entire agreement between Company and Customer with respect to the Software Services and supersedes all prior discussions, negotiations, representations, or agreements relating to the subject matter hereof. No modification of this ToS is effective unless in writing and agreed by both parties, except as provided in Section 13.2.