Current as of: June 25, 2021
These Partnering Terms and the details agreed by you (“Company”) in an ordering document that incorporates these terms combine to form the Partner Services Agreement (“Agreement”) between Rightway Healthcare, Inc. and Company.
1.1. Services. Subject to the Agreement, including payment of applicable fees, Rightway will use commercially reasonable efforts to provide the Services to Customers and Authorized Users.
1.2. Changes. Rightway may from time to time make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Rightway’s Services, the competitive strength of or market for Rightway’s services and the Services’ efficiency or performance; or (b) comply with applicable law. Subject to the foregoing, Rightway shall use commercially reasonable efforts not to discontinue any Services prior to 30 days after written notice to Company and not to discontinue any Services during the term of any Rightway-Customer Terms of Service. Rightway may suspend, terminate or otherwise deny Company’s, any Customers’ or Authorized User’s access to or use of the Services, without incurring any resulting obligation or liability, if: (a) Rightway receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Rightway to do so; (b) Rightway believes, in its sole discretion, that: (i) Company or any Customer, or Authorized User has failed to comply with any term of this Agreement; (ii) Company or any Customer or Authorized User has been or is likely to be involved in any fraudulent, misleading or unlawful activities; or (c) this Agreement terminates.
2.1. Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly authorized, executed and delivered by it, and that it has the full power and authority and is free to enter into this Agreement and to perform its obligations hereunder and (b) it will perform its respective responsibilities under the Agreement in compliance with all applicable federal, state and local laws, rules, and regulations, including, without limitation, HIPAA and other applicable state or federal privacy and security regulations.
2.2. Disclaimer. OTHER THAN THE LIMITED WARRANTY MADE TO CUSTOMERS IN THE RIGHTWAY-CUSTOMER TERMS OF SERVICE (IF ANY), ALL SERVICES, RIGHTWAY MATERIALS AND THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”, AND RIGHTWAY MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT. RIGHTWAY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERRUPTION OF USE, AND NON-INFRINGEMENT.
2.3. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL OR (B) DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE TOTAL FEES PAID OR OWED BY COMPANY TO RIGHTWAY PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
“Confidential Information” shall include the terms of this Agreement, and any information that is clearly identified in writing at the time of disclosure as confidential or which, given the circumstances of disclosure, would reasonably be understood to be confidential, including but not limited to, vendor or supplier information, terms and conditions of supplier agreements, financial projections, business plans and information, client and Customer data, personal data, sales and product plans and data, product and technical specifications. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the receiving party; or (d) the receiving party becomes aware of, from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information. Each party agrees: (a) to keep confidential all Confidential Information of the other party; (b) not to use or disclose the other party’s Confidential Information except as reasonably necessary to perform under this Agreement; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information), and to make Confidential Information available to authorized persons only on a “need to know” basis. All such authorized persons who have access to the other party’s Confidential Information must have a written confidentiality agreement with the receiving party that is no less restrictive than the terms contained herein. This section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation provided that the receiving party first provides the disclosing party with prompt written notice of such requirement (provided such notice is legally permissible) and reasonable cooperation to the disclosing party should it seek protective arrangements for the production of such Confidential Information.
4.1. Rightway Materials. All right, title, and interest in and to the Rightway Materials, including all modifications, derivative works and improvements thereof and thereto and all Intellectual Property Rights therein, are and will remain the exclusive property of Rightway and, where applicable, the respective rights holders in the third-party materials and all such items shall be deemed and treated as the Confidential Information of Rightway. “Rightway Materials” means the Services, Rightway Systems, manuals, instructions or other documents or materials that Rightway provides or makes available and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Rightway or any subcontractor in connection with the Services or otherwise comprise or relate to the Services or Rightway Systems. “Rightway Systems” means the information technology infrastructure used by or on behalf of Rightway in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Rightway or through use of third-party services. “Intellectual Property Rights” means all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. Company has no right, license or authorization with respect to any of the Rightway Materials (including third-party materials) except as expressly set forth in this Agreement. All other rights in and to the Rightway Materials (including third-party materials) are expressly reserved by Rightway and the respective third-party licensors).
4.2. Restrictions. Company shall ensure that neither it nor its Customers nor any of their Authorized Users access or use the Services or Rightway Materials except as expressly permitted by this Agreement, including without limitation the following prohibitions: (a) copying, modifying or creating derivative works or improvements of the Services or Rightway Materials; (b) renting, leasing, selling, sublicensing, assigning, distributing, publishing, or otherwise making available any Services or Rightway Materials to any person or entity, including on or in connection with the internet or any service bureau, software as a service, cloud or other technology or service; (c) reverse engineering, disassembling, decompiling, decoding, adapting or otherwise attempting to derive or gain access to all or part of the source code of the Services or Rightway Materials; (d) bypassing or breaching any security device or protection used by the Services or Rightway Materials or accessing the Services or Rightway Materials other than by an Authorized User through the use of his or her own then-valid Access Credentials; (e) inputting, uploading, transmitting or otherwise providing to or through the Services or Rightway Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damaging, destroying, disrupting, disabling, impairing, interfering with or otherwise impeding in any manner the Services or Rightway Systems; (g) removing, altering or obscuring any Licensed Marks of Rightway or other proprietary rights notices from any Services or Rightway Materials; (h) accessing or using the Services or Rightway Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third-party, or that violates any applicable law.
Each party agrees that it shall not use any trade names, trademarks, service marks, logos, or other identifying marks of the other party (the “Licensed Marks”) except as stated herein, without the prior consent of the party whose Licensed Marks are being used. During the term of this Agreement and until termination of this agreement or request from the licensing party, each party grants to the other a nonexclusive, nontransferable, non-sublicensable license and right to use the other party’s Licensed Marks in connection with that party’s performance hereunder and in connection with listing the party as a customer and/or vendor in marketing materials. Each party acknowledges that the other party is the sole owner of the Licensed Marks and agrees that all goodwill arising out of its use of the Licensed Marks shall inure to the sole benefit of the licensing party.
Each party will indemnify, defend, and hold harmless the other party and its officers, directors, employees and agents from and against any and all claims, demands, liabilities, losses, damages, actions, causes of action, costs, or expenses of any kind or nature, including reasonable attorneys’ fees and costs (collectively, “Claims”), arising out of any allegation, suit, or claim made by any third party against any indemnified party based upon or arising out of: (a) a claim alleging that any of the indemnifying party’s services or products infringes a United States patent, copyright or trade secret or (b) violation by the indemnifying party of any law, rule or regulation applicable to such indemnifying party’s performance under this Agreement, including, without limitation, HIPAA and similar privacy laws; provided that: (i) the indemnified party gives reasonably prompt written notice to the indemnifying party of any Claims (to the extent known); (ii) the indemnified party provides the indemnifying party with reasonable assistance and cooperation with respect to the Claim; and (iii) the indemnifying party shall be entitled to assume sole control over the defense and negotiations for a settlement or compromise (provided that the indemnified party may, at its own expense, participate in any such defense, settlement, or negotiations through counsel of its choice). The indemnifying party shall not consent to, and the indemnified party shall not be required to agree to, any settlement or compromise of, any claim, demand, or suit if such settlement or compromise does not unconditionally release the indemnified party without requiring any payment by, and without imposing any material adverse conditions on, the indemnified party.
7.1. Term. The “Term” or purposes of determining the initial service period and any renewal periods hereunder shall begin on the Effective Date or, if later, the applicable Service Start Date. After the initial Term, the Agreement shall automatically renew for successive terms of one year each unless one party provides the other with 90 days written notice prior to the end of the current term of its intent not to renew. Upon nonrenewal of the Agreement by either party, and conditioned upon Company’s continued compliance with the terms of this Agreement, Services will continue for each Customer existing at the date of termination of this Agreement until the end of their benefit plan year in effect as of that termination date (provided that full payment has been made to Rightway hereunder for such period), but in no event shall Rightway be obligated to provide the Services hereunder more than 12 months after the Agreement’s termination date. Company will notify Rightway within 60 days prior to the expiration of all such benefit plan years. Company is not permitted to withdraw Customers during an applicable benefit plan year occurring during the term hereof, nor shall Company add Customers to the Agreement after notice of nonrenewal or termination has been provided by a party.
7.2. Termination. In the event of a material breach by a party, the non-breaching party may terminate this Agreement to the extent that such breach is not cured within 30 days after the non-breaching party provides written notice of its intent to terminate the Agreement due to the breach. If a federal, state, or local law or regulation is enacted, or the parties are otherwise directed by a federal, state, or local agency with regulatory authority over the parties ("Regulatory Action"), which prohibits the relationship of the parties or the provision of Services as presently structured under this Agreement, the parties will make a good faith effort to alter their relationship and modify this Agreement to the minimum extent necessary to comply with such directive, law or regulation. If, after diligent good faith efforts, the parties are unable to mutually agree within 90 days upon such modification, or if such modification is not legally possible, and the failure to modify the Agreement would have a material adverse effect on a party 's benefits or obligations hereunder, then this Agreement may be terminated by either party.
7.3. Survival. Notwithstanding the expiration or termination of this Agreement, the rights and obligations contained in any provision of this Agreement, which, by its nature would survive termination of this Agreement, including without limitation sections Confidentiality, Rightway Materials, Term & Termination, Disclaimer, Limitation of Liability, and Miscellaneous, shall survive the expiration or termination of this Agreement.
8.1. Notices. Any notice, request, instruction, or other document to be given hereunder by any party to any other party shall be in writing and shall be given by delivery in person, by electronic mail, by reputable overnight courier, or by registered or certified mail, postage prepaid to the following to the name and address listed under the signatures on the first page of the Agreement or at such other address for a party as shall be specified by like notice. Any such notice shall be deemed given (a) on the date of delivery, if delivered personally; (b) on the date of transmission if delivered via email transmission, with confirmation by return email of receipt by recipient, or if no such confirmation is received, then on the next business day of the recipient after such transmission; (c) on the business day after the date of delivery to a reputable overnight courier; or (d) three business days after being mailed by registered or certified mail.
8.2. Independent Contractors. Company and Rightway are independent contractors. Nothing in this Agreement shall be construed to constitute the parties to be or deemed to be Rightway’s, agents, legal representatives, joint venturers, or employees or employers of the other. Company has no authority to bind Rightway to any agreement or commitment of any kind and will take no action which has the effect of creating an appearance of its having authority to do so.
8.3. Dispute Resolution; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to conflicts of law principles. The parties agree that any and all actions or proceedings seeking to enforce any provision of, or based on any right arising out of, or to resolve any other dispute arising under, this Agreement in connection with such dispute shall be brought and finally resolved by confidential arbitration in New York, New York under the Commercial Arbitration Rules of the American Arbitration Association and conducted in English by a panel of three arbitrators appointed in accordance with such rules. Judgments upon final decisions rendered by the arbitrators may be entered in any court of competent jurisdiction.
8.4. Force Majeure. Neither party will be liable for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond a party’s reasonable control including without limitation acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, national or regional emergency, industrial disturbances, passage of law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation (any such circumstance, a “Force Majeure Event”). Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
8.5. Other. No amendment, modification, or alteration of the terms or provisions of this Agreement shall be binding unless the same shall be in writing and duly executed by Company and Rightway; except that any of the terms or provisions of this Agreement may be waived in writing (including electronically) at any time by the party that is entitled to the benefits of such waived terms. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provision hereof. No delay on the part of any party in exercising any right hereunder shall operate as a waiver thereof. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties; provided, however, that this Agreement may not be assigned by a party without the prior written consent of the other party, which shall not be unreasonably withheld; provided, further, that notwithstanding the foregoing, this Agreement may be assigned by Rightway to an acquirer of all or substantially all of the assets of Rightway, without the prior written consent of Company. This Agreement is intended to be solely for the benefit of the parties, and no other party shall be entitled to rely on this Agreement or accrue any benefit or right of any kind pursuant to or under this Agreement. This Agreement may be executed in the original, by any generally accepted electronic means (including transmission of a pdf file containing an executed signature page), in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. This Agreement (including the Exhibits attached hereto and the Business Associate Agreement executed by the parties) constitute the sole understanding of the parties with respect to the subject matter hereof. This Agreement supersedes all prior and contemporaneous understandings between the parties with respect to the subject matter hereof.