Current as of: June 25, 2021
As a precondition of Rightway Healthcare, Inc. (“Rightway”) providing services to you as a customer (“Customer”) of Rightway’s partner (“Partner”), Customer hereby agrees to these Pass-Through Terms (“Terms”). Subject to these Terms, Customer may access and use Rightway’s services, including and the Rightway Materials and Rightway Systems (collectively, the “Services”) during the term of and solely for the uses permitted under Customer’s’ agreement with Partner (“Permitted Use”) by and through Customer’s employees and other individuals eligible to use the Services (“Authorized Users”). The use of, access to, and provision of Services under these Terms creates an obligation between Rightway and Customer, and if Customer fails to perform its obligations, Rightway will have a direct cause of action against Customer.
1. Customer shall pay Partner applicable fees as specified in Customer’s agreement with Partner covering the Services.
2. Neither Partner nor Rightway shall be responsible for results obtained by Authorized Users from any use of the Services or for conclusions, decisions, or actions based on such use. As between Rightway and Customer, Customer bears sole responsibility for: all data, information, and other materials provided by or on behalf of Customer or an Authorized User hereunder to the Services (“Customer Data”); Customer systems; the security and use of access credentials; and all access to and use of the Services by or through Customer systems or access credential with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
3. Rightway has and will retain sole control over the operation, of the Services (including the Rightway Materials and Rightway Systems), including: the location where any of the Services are performed; selection, deployment, modification, and replacement of the Service; and performance of Service maintenance, upgrades, corrections and repairs. Rightway and the respective rights holders in third party materials, as applicable, have all right, title, and interest in and to the Services, and nothing in these Terms grants Customer any such right, title, or interest to any Intellectual Property Rights in or relating to the 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. Rightway may make any changes to the Services that it deems necessary or useful to comply with applicable Law or maintain or enhance the quality or delivery of the Services, the competitive strength of the Services or the Services’ cost efficiency or performance. “Rightway Materials” means the Services, Rightway Systems (defined below), or other 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 Rightway 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.
4. Rightway may suspend, terminate or otherwise deny Customer’s, any Authorized User’s or any other person’s access to or use of all or any part of the Services without incurring any resulting obligation or liability, if: (a) Rightway receives a judicial or other governmental request that expressly or by reasonable implication requires Rightway to do so; (b) Rightway believes, in its reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term in these Terms, or has accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms; (ii) Customer or any Authorized User is, has been, or Rightway reasonably determines is likely to be involved in any fraudulent, misleading or unlawful activities (but such suspension, termination or denial shall, to the extent reasonably feasible, be limited solely to the offending party if committed by an Authorized User); or (iii) Partner’s agreement with Rightway expires or is terminated.
5. Customer shall not and shall not permit any other person or entity to, access or use the Services except for the Permitted Use as expressly authorized by these Terms and, in the case of any third-party materials, as expressly permitted by the applicable third-party license agreement. Customer shall notify Partner and Rightway if Customer becomes aware of any actual or threatened activity prohibited by these Terms and shall, and shall require Authorized Users to, immediately take all reasonable and lawful measures necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Rightway Materials and permanently erasing from Customer’s or Authorized Users’ systems and destroying any data to which Customer or Authorized Users have gained unauthorized access). Customer shall employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all of Customer’s Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
6. IN NO EVENT WILL RIGHTWAY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUPPLIERS OR AFFILIATES BE LIABLE TO CUSTOMER OR ITS AUTHORIZED USERS OR ANY THIRD PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; OR (b) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL EITHER PARTY'S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF ALL FEES PAID OR OWED BY CUSTOMER FOR RIGHTWAY SERVICES HEREUNDER DURING THE 12 MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
7. ALL SERVICES AND RIGHTWAY MATERIALS ARE PROVIDED BY RIGHTWAY “AS IS” AND RIGHTWAY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.