Terms & Services

These Terms of Service (this ”Agreement”) is a binding agreement between you (“End User” or “you”) and Rightway Healthcare, Inc. (“we,” “us,” “our,”Company,” or “Rightway”). This Agreement governs your use of (i) the RightwayRx mobile application (the “App”) and (ii) the RightwayRx pharmacy benefits management service (“RightwayRx” or the “Service”).

BY ACCESSING THE APP OR THE SERVICE IN ANY CAPACITY, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE PROHIBITED FROM ACCESSING THE APP OR THE SERVICE IN ANY CAPACITY AND ANY LICENSES RELATED THERETO SHALL IMMEDIATELY TERMINATE.

THIS AGREEMENT includes a provision waiving the right to pursue any class, group, or representative claim and requiring you to pursue certain disputes through individual arbitration unless you opt-out within the specified time frame.PLEASE SEE SECTION 12 BELOW FOR MORE DETAIL.

To the extent that this Agreement conflicts with Rightway’s Services Agreement (or any related agreement) (a “Customer Agreement”) between Rightway and your plan sponsor (or the plan sponsor of the Rightway member, as applicable), that Customer Agreement shall control other than with respect to any content from third party licensors that is included in or otherwise made available by or through the App or Service (“Third Party Content”). With respect to Third Party Content, this Agreement shall control in all respects.

1. License; Limitations.

Limited License. Subject to the terms of this Agreement, Rightway grants you a limited, revocable, non-exclusive, and non-transferable license to:

(a) access and otherwise use the Service; and

(b) download, install, and use the App for your personal, non-commercial use on a mobile device owned or otherwise controlled by you (each, a “Mobile Device”) strictly in accordance with the App’s documentation.

This is not a sale of the App or Service, or of any Third Party Content. Any use or attempted use of the App or Service or any Thirty Party Content other than in accordance with this Agreement is prohibited.Company reserves the right to terminate this limited license at any time and for any reason, with or without notice to you.

Limitations and Restrictions on Use. You shall not:

(a) copy the App or Service or any Third Party Content, except as expressly permitted by this license;

(b) print any of the content on the App or Service or any Third Party Content;

(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App or Service or any Third Party Content;

(d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or Service or any Third Party Content, or any parts thereof;

(e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App or Service or any Third Party Content, including any copy thereof;

(f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App or Service or any Third Party Content, or any features or functionality of the App or Service or any Third Party Content, to any third party for any reason, including by making the App or Service or any Third Party Content available on a network where it is capable of being accessed by more than one device at any time; or

(g) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App or Service or any Third Party Content.

No Competition. Under no circumstances shall you use the App or Service or any Third Party Content, any portion thereof or any information derived therefrom, to develop or to assist any third party in developing any content, product(s) or service(s) in any format similar to, or which could be competitive with, the App or Service or any Third Party Content.

Additional Restrictions for Third Party Content. Please seeAppendix Afor additional terms and conditions that apply to the use of Third Party Content. In the event of changes in this Agreement related to the incorporation of Third Party Content, such changes and additional terms and conditions shall be presented in writing to you in advance. Rightway reserves the right to terminate access to the Third Party Content, modify the Third Party Content accessible hereunder, or add additional terms and conditions applicable to the Third Party Content, in each case effective immediately upon notice being made reasonably available to you.

2. Use of RightwayRx; Conditions; Restrictions.

Use of RightwayRx. Subject to availability and the terms and conditions of this Agreement, you may use the Service to view a recent history of your (or your dependents’) filled prescriptions; check the prices of your (or your dependents’) active prescriptions at nearby retail pharmacies; access a digital version of your (or your dependents’) Prescription ID Card; and receive updates on pending prescriptions undergoing clinical request processes. The Service and any content provided thereby, including the Medi-Span drug data owned by Wolters Kluwer Clinical Drug Information (“Medi-Span Content”) and any other Third Party Content:

  1. is intended and presented only for general educational purposes and is used solely at the risk of the user;
  2. is not intended as, and may not be used as, a substitute for the diagnosis, expertise, treatment, advice, and judgment of a physician, nurse, pharmacist or other healthcare professional (a health care professional should be consulted before taking or discontinuing a drug mentioned in the information presented or before relying on the information);
  3. is subject to change without notice;
  4. is not comprehensive and does not cover all uses, precautions, side effects, warnings, and interactions related to pharmaceuticals or treatments;
  5. may not apply to any specific medical condition;
  6. does not take into account personal circumstances and should not be relied upon or construed to indicate that a use of a drug or treatment is safe, appropriate, or effective for a given individual;
  7. is only applicable to use in the United States and its territories and to pharmaceuticals legally available in the United States and its territories;
  8. does not constitute medical advice or professional advice of any kind; and
  9. has not been reviewed for compliance with federal or state pharmaceutical marketing, advertising, and disclosure statutes or regulations.

Service Fees. The service fees for use of the Service have been paid by your plan sponsor(or the plan sponsor of the Rightway member, as applicable). In the event that your (or the member’s) plan sponsor fails to pay for continued access to the Service, we reserve the right to suspend or terminate your use of the Service.

Modification of Service Fees. Company reserves the right to modify the service fees imposed for the use of the Service.

Other Fees or Costs. Your right to use the Service, including the App, does not include any health care providers’ fees or the cost of any prescriptions (for which you and your health insurance may be responsible). Likewise, we make no guarantee that health care providers’ fees or the cost of prescriptions will be covered, in full or in part, by any health insurance you may have.

Internet Access. You shall be solely responsible, financially and otherwise, for providing your own Internet access. You acknowledge that the Service is an on-line system that can only be accessed via the Internet.

No Agency. Nothing in this Agreement shall create a joint venture or shall authorize you to enter into any contract or commitment on behalf of Company.

No Use of RightwayRx by Children. You acknowledge that the Service is not intended for use by children under the age of eighteen (18) years old. Children under the age of eighteen (18) years old are prohibited from using the Service or accessing or using any content provided thereby, including any Third Party Content.

3. HIPAA Compliance.

You acknowledge that using the Service will involve the transmission of certain personal data which could be considered Protected Health Information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended, including, without limitation, your name, contact information, date of birth, social security number, your health plan(s) and provider(s) (e.g., medical, dental, and vision), and information about your medical diagnoses, treatment, prescriptions, and claims, as well as the name, contact information, date of birth, social security number, health plan(s) and provider(s), and medical diagnosis, treatment, prescriptions, and claims information about your spouse and dependent(s).

Employees of Self-Insured Employers

The Company acts as a “business associate,” as defined by HIPAA, with respect to self-insured employers, which are subject to HIPAA as “covered entities.” As required by HIPAA, the Company executes a business associate agreement with self-insured employers, which governs such employers’ disclosure of PHI to the Company.

Employees of Employers That Are Not Self-Insured

You acknowledge that the Company is neither a covered entity nor a business associate, as defined under HIPAA, with respect to employers that insure their employees through third-party insurers. Employees of those employers must therefore explicitly authorize the Company to receive and use their PHI in order for Rightway to be able to provide the full Service. The Company presents employees in this category the opportunity to submit an electronic HIPAA authorization form upon enrollment in the Service. In the event that a health insurer or health care provider requires the employee to sign an additional authorization form before such insurer or provider will disclose employee PHI to the Company, the employee will need to sign this additional form before the Company is able to provide the applicable Service.

4. Intellectual Property.

Ownership of App and Service. As between you and the Company, you acknowledge that Company is the sole and exclusive owner of the App and the Service, except for any Third Party Content, which is the proprietary content of Rightway’s licensors. You further acknowledge that nothing in this Agreement shall constitute an assignment or other transfer of rights in the App or Service or any Third Party Content to you. All rights associated with the App and Service, including without limitation all copyrights, patents, and trade secrets, shall remain the sole and exclusive property of Company or its licensors.

Title. To the extent that you acquire any rights to the App or the Service or any Third Party Content, or any portion thereof, in a manner not set forth herein, you agree to execute, and to cause your representatives to execute, any assignment agreements or other instruments assigning, transferring and conveying to Rightway or its third party licensors, as applicable, all right,title, and interest in and to the App or the Service or any Third Party Content, including copyrights and other intellectual property, or to the extent such assignments are invalid, granting to Rightway or its third party licensors the exclusive and perpetual license to such rights without any duty of attribution or accounting.

Confidentiality. You acknowledge that the App, the Service, and the related algorithms, methods of implementation, methods of organizing and presenting prescription drug information, ideas, and all other information relating to the App and Service (collectively, the “Rightway Trade Secrets”) are trade secrets. You shall maintain the confidentiality of the Rightway Trade Secrets, shall hold the Rightway Trade Secrets in strict confidence, and shall not disclose the Rightway Trade Secrets to any third party, nor use for any purpose other than as expressly permitted by this Agreement. The obligation to maintain the confidentiality of the Rightway Trade Secrets is a fiduciary obligation that shall survive termination of this Agreement and continue for so long as the relevant information remains confidential and/or a trade secret.

Trademarks. You acknowledge that Company is the owner of various trademarks, including RIGHTWAY HEALTHCARE™, and such additional marks as Company may adopt in the future (collectively, the “Company Trademarks”). You may not use any of the Company Trademarks without Company’s express written permission (which may be withheld). Under no circumstances shall you adopt or use any trademarks that are confusingly similar to any of the Company Trademarks.

5. Updates.

Company may from time to time in its sole discretion develop and provide updates to the App or Service, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (a) the App will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates.You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so.

You further agree that all Updates will be deemed part of the App or Service and be subject to all terms and conditions of this Agreement.

6. Third-Party Materials

The App or Service may display, include, or make available Third Party Content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (collectively, “Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

7. Termination; Survival.

Termination. The term of Agreement commences when you access the App or enroll in the Service and will continue in effect until terminated by you or Company as set forth in this Section.

With respect to the Service, you may terminate this Agreement at any time by deleting the App and all copies thereof from your Mobile Device and by notifying Company that you wish to terminate your access to the Service. Company reserves the right to terminate this Agreement at any time and without prior notice to you; in addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

Upon termination, all rights granted to you under this Agreement will also terminate; and you must cease all use of the Service, including the App and all Third Party Content and delete all copies of the App from your Mobile Device.

Termination will not limit any of Company’s rights or remedies in this Agreement or otherwise by law or in equity.

Survival. Your obligations arising out of and the restrictions contained in Sections 1, 3, 4, 8, 9, 10, 11, and 12 shall survive termination of this Agreement.

8. Disclaimer of Warranties.

You acknowledge that the Service or App, including any Third Party Content, may not always be available, either by virtue of Company’s actions or conditions entirely beyond Company’s control and Company shall not be liable to you for any loss relating to the unavailability of the Service. Company does not warrant the accuracy or completeness of information that may be provided through the Service or App, including Third Party Content. You agree not to rely upon the Service or App, or any Third Party Content, as a substitute for the diagnosis, expertise, treatment, advice, and judgment of a physician, nurse, pharmacist or other healthcare professionals. Please see Appendix A for additional disclaimers that apply to the use of certain Third Party Content.

THE APP AND SERVICE ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APP OR SERVICE, INCLUDING 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, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP OR SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

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.

9. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE ANY OR ALL PORTIONS OF THE APP OR SERVICE FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR FOR (B)DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

Please see Appendix A for additional limitations of liability that apply to the use of certain Third Party Content.

10. Indemnification.

You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns, as well as the Company’s licensors and suppliers, 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 attorneys’ fees and court costs, arising from or relating to:

  1. any diagnosis, expertise, treatment, advice, or other services that you may receive from healthcare professionals, including physicians, nurses, and pharmacists; or
  2. your use or misuse of the Service or App or Third Party Materials or your breach of this Agreement, including but not limited to the content you submit or make available through the Service or App.

11. Interpreting the Agreement.

Severability. 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.

Force Majeure. Except with respect to payment obligations, neither party shall be liable for any failure or delay in its performance or equipment due to causes beyond such party’s reasonable control, including without limitation: acts of God, fire, flood, hurricanes, or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties; or failure of the Internet.

Entire Agreement. This Agreement constitutes the entire agreement and understanding between you and Company with respect to the App or Service, and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the App or Service.

Waiver. 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.

Notice. All notices hereunder shall be effective if delivered personally or sent by certified mail, postage prepaid, to: Rightway Healthcare, Inc., 422 West Broadway, Suite 3F, New York, New York 10012.

Assignment. Company may, in its sole discretion, assign any or all rights under this Agreement to a third party without any additional notice to or consent from you. You may not assign any or all of your rights under this Agreement to a third party without Company’s prior written approval and Company shall have sole discretion to determine whether to provide or withhold such approval.

Third-Party Beneficiary. You acknowledge and agree that, except as otherwise provided in this Agreement, there shall be no third party beneficiaries to this Agreement.

Governing Law and Judicial Forum. This Agreement will be interpreted in accordance with the laws of the State of New York without regard to conflict- or choice-of-law principles. In the event that you have opted out of arbitration (as set out below) or that the agreement to arbitrate is otherwise found not to apply to you or your claim, you and Rightway agree that any judicial proceeding (other than as described above) may only be brought in a court of competent jurisdiction in New York. Both you and Rightway consent to venue and personal jurisdiction there. Notwithstanding the foregoing, you and Rightway may bring an action in any court of competent jurisdiction (i) to compel arbitration pursuant to Section 12 below or (ii) to enforce an arbitral award issued thereunder.

12. Dispute Resolution and Agreement to Arbitrate on an Individual Basis.

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND RIGHTWAY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU AND RIGHTWAY CAN SEEK RELIEF FROM EACH OTHER.

You agree that any and all past, present and future disputes, claims or causes of action between you and Rightway arising out of or relating to this Agreement, the App or Service, the formation of this Agreement, or any other dispute between you and Rightway or any of Rightway’s licensors, distributors, suppliers or agents (including any application store or platform from which the Service is accessed or downloaded), and whether arising prior to or after your agreement to this Section, (collectively, “Dispute(s)”) will be governed by the procedure outlined below. You and Rightway further agree that any arbitration pursuant to this Section shall not proceed as a class, group, or representative action.

(a) Informal Dispute Resolution. Rightway wants to address your concerns without the need for a formal legal dispute. Before filing a claim against Rightway, you agree to try to resolve the Dispute informally by contacting info@rightwayhealthcare.com. Similarly, if you have provided an email address to us as part of your enrollment in the Service, Rightway agrees to do the same. If a dispute is not resolved within 30 days after the email noting the Dispute is sent, you or Rightway may initiate an arbitration proceeding as described below.

(b) We Both Agree To Arbitrate. By agreeing to these Terms, you and Rightway each and both agree to resolve any Disputes—including any Dispute concerning the enforceability, validity, scope, or severability of this agreement to arbitrate—through final and binding arbitration as discussed herein, except as set forth below.

(c) Opt-out of Agreement to Arbitrate. You may decline this agreement to arbitrate by contacting info@rightwayhealthcare.com within 30 days of first accepting these Terms and stating that you (include your first and last name, and email address) decline this arbitration agreement. By opting out of the agreement to arbitrate, you will not be precluded from using the Service, but you and Rightway will not permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.

(d) Arbitration Procedures and Fees.You and Rightway agree that JAMS in New York, New York will administer the arbitration under its JAMS Comprehensive Arbitration Rules & Procedures (“JAMS Rules”). Those rules are available at https://www.jamsadr.com/rules-comprehensive-arbitration/. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules.The arbitration proceeding and any award shall be confidential. You and Rightway further agree that the arbitration will be held in New York, New York, or, at your election, will be conducted telephonically or via other remote electronic means. The JAMS Rules will govern payment of all arbitration fees. This Section 12 shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.

(e) Arbitration Shall Proceed Individually. You and Rightway agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Rightway may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Rightway will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.

(f) Class Action and Collective Arbitration Waiver.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR RIGHTWAY SHALL BE ENTITLED TO CONSOLIDATE, JOIN, OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION (AS DEFINED ABOVE) OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN THE EVENT ALL OR ANY PORTION OF SUBSECTIONS (E) OR (F) OF THIS SECTION ARE FOUND TO BE INVALID OR LESS THAN FULLY ENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION MAY BE DEEMED VOID AND AS HAVING NO EFFECT UPON EITHER PARTY’S ELECTION.

(g) Intellectual Property Claims. You agree that notwithstanding the requirement that all Disputes be resolved through binding arbitration, in the event Company has a claim against you relating to copyright infringement, trademark infringement, patent infringement, actual or threatened misappropriation of trade secrets, or actual or threatened breach of the confidentiality provisions in this Agreement, Company may commence an action in state or federal court in New York, New York to obtain a temporary or preliminary injunction to prevent any or all such acts from continuing, with or without notice to you. Under such circumstances, you acknowledge that any such violation will result in irreparable harm to Company, and therefore you consent to the immediate issuance of a temporary or preliminary injunction. You further agree that such an injunction shall be conditioned upon Company posting an injunction bond in the amount of $5,000.00. Immediately following the entry of a temporary or preliminary injunction, the court that issued the injunction shall issue a stay of the proceedings pending resolution of binding arbitration consistent with the rest of this section. In the event Company prevails in the binding arbitration as to the issues or claims that resulted in the issuance of the temporary or preliminary injunction, the arbitrator in its decision shall convert the preliminary or temporary injunction to a permanent injunction.

APPENDIX A

The following additional terms apply to Medi-Span Content:

Disclaimer of Warranties

THE MEDI-SPAN CONTENT INCLUDES DATA AND INFORMATION FROM MANY INDEPENDENT SOURCES, INCLUDING DRUG MANUFACTURERS, RESEARCH INSTITUTIONS, AND GOVERNMENT AGENCIES. RIGHTWAY AND ITS LICENSORS CANNOT, AND DO NOT, INDEPENDENTLY REVIEW, VERIFY, TEST, INVESTIGATE OR SUBSTANTIATE ANY OF THE CONTENT FOR CORRECTNESS, ACCURACY, TIMELINESS OR COMPLETENESS, INCLUDING WITH RESPECT TO ANY CONTENT DESCRIPTIONS, PRICES OR INFORMATION CONCERNING MEDICAL DEVICES, AND DISCLAIM ALL RESPONSIBILITY FOR ANY ERRORS THEREIN AND FOR ANY ADVERSE CONSEQUENCES RESULTING THEREFROM. IN ADDITION, THE MEDI-SPAN CONTENT MAY NOT NECESSARILY COVER ALL POSSIBLE USES, DIAGNOSES, TREATMENT OPTIONS, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, DOSAGE LIMITATIONS, LOCAL PRACTICES OR ADVERSE EFFECTS APPLICABLE TO A PARTICULAR DRUG OR TREATMENT OR A PARTICULAR PATIENT. ALTHOUGH THE CONTENT COVERS A WIDE RANGE OF PRESCRIPTION AND NON-PRESCRIPTION DRUGS, IT DOES NOT INCLUDE ALL DRUGS, VACCINES, DEVICES AND DIAGNOSTIC AGENTS. ACCORDINGLY, AND WITHOUT LIMITING THE FOREGOING, THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION IS NOT AN INDICATION THAT THE DRUG, DOSAGE OR DRUG COMBINATION IS SAFE, APPROPRIATE OR EFFECTIVE FOR ANY PARTICULAR PATIENT.

THE MEDI-SPAN CONTENT MAY PROVIDE INFORMATION ABOUT MEDICATIONS, BUT IT IS LIMITED, INTENDED TO BE JUST ONE OF MANY SOURCES OF REFERENTIAL MATERIAL USED BY A LICENSED PROFESSIONAL, AND MAY BE CONFUSING TO CERTAIN PATIENTS WHEN NOT INTERPRETED BY A HEALTHCARE PROFESSIONAL. THE MEDI-SPAN CONTENT IS NOT INTENDED, AND YOU AGREE NOT TO RELY ON THE LICENSED CONTENT AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION OF AN ADMINISTRATION TECHNIQUE, OR JUDGMENT OF PHARMACISTS, PHYSICIANS, OR OTHER HEALTHCARE PROFESSIONALS.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RIGHTWAY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE ANY OR ALL PORTIONS OF THE MEDI-SPAN CONTENT FOR ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN EXCESS OF THE LICENSE FEES PAID BY RIGHTWAY TO WOLTERS KLUWER CLINICAL DRUG INFORMATION DURING THE TWELVE (12) MONTHS PRECEDING THE EARLIEST EVENT GIVING RISE TO SUCH LIABILITY.




Terms & Services

These Terms of Service (this ”Agreement”) is a binding agreement between you (“End User” or “you”) and Rightway Healthcare, Inc. (“we,” “us,” “our,”Company,” or “Rightway”). This Agreement governs your use of (i) the RightwayRx mobile application (the “App”) and (ii) the RightwayRx pharmacy benefits management service (“RightwayRx” or the “Service”).

BY ACCESSING THE APP OR THE SERVICE IN ANY CAPACITY, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE PROHIBITED FROM ACCESSING THE APP OR THE SERVICE IN ANY CAPACITY AND ANY LICENSES RELATED THERETO SHALL IMMEDIATELY TERMINATE.

THIS AGREEMENT includes a provision waiving the right to pursue any class, group, or representative claim and requiring you to pursue certain disputes through individual arbitration unless you opt-out within the specified time frame.PLEASE SEE SECTION 12 BELOW FOR MORE DETAIL.

To the extent that this Agreement conflicts with Rightway’s Services Agreement (or any related agreement) (a “Customer Agreement”) between Rightway and your plan sponsor (or the plan sponsor of the Rightway member, as applicable), that Customer Agreement shall control other than with respect to any content from third party licensors that is included in or otherwise made available by or through the App or Service (“Third Party Content”). With respect to Third Party Content, this Agreement shall control in all respects.

1. License; Limitations.

Limited License. Subject to the terms of this Agreement, Rightway grants you a limited, revocable, non-exclusive, and non-transferable license to:

(a) access and otherwise use the Service; and

(b) download, install, and use the App for your personal, non-commercial use on a mobile device owned or otherwise controlled by you (each, a “Mobile Device”) strictly in accordance with the App’s documentation.

This is not a sale of the App or Service, or of any Third Party Content. Any use or attempted use of the App or Service or any Thirty Party Content other than in accordance with this Agreement is prohibited.Company reserves the right to terminate this limited license at any time and for any reason, with or without notice to you.

Limitations and Restrictions on Use. You shall not:

(a) copy the App or Service or any Third Party Content, except as expressly permitted by this license;

(b) print any of the content on the App or Service or any Third Party Content;

(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App or Service or any Third Party Content;

(d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or Service or any Third Party Content, or any parts thereof;

(e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App or Service or any Third Party Content, including any copy thereof;

(f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App or Service or any Third Party Content, or any features or functionality of the App or Service or any Third Party Content, to any third party for any reason, including by making the App or Service or any Third Party Content available on a network where it is capable of being accessed by more than one device at any time; or

(g) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App or Service or any Third Party Content.

No Competition. Under no circumstances shall you use the App or Service or any Third Party Content, any portion thereof or any information derived therefrom, to develop or to assist any third party in developing any content, product(s) or service(s) in any format similar to, or which could be competitive with, the App or Service or any Third Party Content.

Additional Restrictions for Third Party Content. Please seeAppendix Afor additional terms and conditions that apply to the use of Third Party Content. In the event of changes in this Agreement related to the incorporation of Third Party Content, such changes and additional terms and conditions shall be presented in writing to you in advance. Rightway reserves the right to terminate access to the Third Party Content, modify the Third Party Content accessible hereunder, or add additional terms and conditions applicable to the Third Party Content, in each case effective immediately upon notice being made reasonably available to you.

2. Use of RightwayRx; Conditions; Restrictions.

Use of RightwayRx. Subject to availability and the terms and conditions of this Agreement, you may use the Service to view a recent history of your (or your dependents’) filled prescriptions; check the prices of your (or your dependents’) active prescriptions at nearby retail pharmacies; access a digital version of your (or your dependents’) Prescription ID Card; and receive updates on pending prescriptions undergoing clinical request processes. The Service and any content provided thereby, including the Medi-Span drug data owned by Wolters Kluwer Clinical Drug Information (“Medi-Span Content”) and any other Third Party Content:

  1. is intended and presented only for general educational purposes and is used solely at the risk of the user;
  2. is not intended as, and may not be used as, a substitute for the diagnosis, expertise, treatment, advice, and judgment of a physician, nurse, pharmacist or other healthcare professional (a health care professional should be consulted before taking or discontinuing a drug mentioned in the information presented or before relying on the information);
  3. is subject to change without notice;
  4. is not comprehensive and does not cover all uses, precautions, side effects, warnings, and interactions related to pharmaceuticals or treatments;
  5. may not apply to any specific medical condition;
  6. does not take into account personal circumstances and should not be relied upon or construed to indicate that a use of a drug or treatment is safe, appropriate, or effective for a given individual;
  7. is only applicable to use in the United States and its territories and to pharmaceuticals legally available in the United States and its territories;
  8. does not constitute medical advice or professional advice of any kind; and
  9. has not been reviewed for compliance with federal or state pharmaceutical marketing, advertising, and disclosure statutes or regulations.

Service Fees. The service fees for use of the Service have been paid by your plan sponsor(or the plan sponsor of the Rightway member, as applicable). In the event that your (or the member’s) plan sponsor fails to pay for continued access to the Service, we reserve the right to suspend or terminate your use of the Service.

Modification of Service Fees. Company reserves the right to modify the service fees imposed for the use of the Service.

Other Fees or Costs. Your right to use the Service, including the App, does not include any health care providers’ fees or the cost of any prescriptions (for which you and your health insurance may be responsible). Likewise, we make no guarantee that health care providers’ fees or the cost of prescriptions will be covered, in full or in part, by any health insurance you may have.

Internet Access. You shall be solely responsible, financially and otherwise, for providing your own Internet access. You acknowledge that the Service is an on-line system that can only be accessed via the Internet.

No Agency. Nothing in this Agreement shall create a joint venture or shall authorize you to enter into any contract or commitment on behalf of Company.

No Use of RightwayRx by Children. You acknowledge that the Service is not intended for use by children under the age of eighteen (18) years old. Children under the age of eighteen (18) years old are prohibited from using the Service or accessing or using any content provided thereby, including any Third Party Content.

3. HIPAA Compliance.

You acknowledge that using the Service will involve the transmission of certain personal data which could be considered Protected Health Information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended, including, without limitation, your name, contact information, date of birth, social security number, your health plan(s) and provider(s) (e.g., medical, dental, and vision), and information about your medical diagnoses, treatment, prescriptions, and claims, as well as the name, contact information, date of birth, social security number, health plan(s) and provider(s), and medical diagnosis, treatment, prescriptions, and claims information about your spouse and dependent(s).

Employees of Self-Insured Employers

The Company acts as a “business associate,” as defined by HIPAA, with respect to self-insured employers, which are subject to HIPAA as “covered entities.” As required by HIPAA, the Company executes a business associate agreement with self-insured employers, which governs such employers’ disclosure of PHI to the Company.

Employees of Employers That Are Not Self-Insured

You acknowledge that the Company is neither a covered entity nor a business associate, as defined under HIPAA, with respect to employers that insure their employees through third-party insurers. Employees of those employers must therefore explicitly authorize the Company to receive and use their PHI in order for Rightway to be able to provide the full Service. The Company presents employees in this category the opportunity to submit an electronic HIPAA authorization form upon enrollment in the Service. In the event that a health insurer or health care provider requires the employee to sign an additional authorization form before such insurer or provider will disclose employee PHI to the Company, the employee will need to sign this additional form before the Company is able to provide the applicable Service.

4. Intellectual Property.

Ownership of App and Service. As between you and the Company, you acknowledge that Company is the sole and exclusive owner of the App and the Service, except for any Third Party Content, which is the proprietary content of Rightway’s licensors. You further acknowledge that nothing in this Agreement shall constitute an assignment or other transfer of rights in the App or Service or any Third Party Content to you. All rights associated with the App and Service, including without limitation all copyrights, patents, and trade secrets, shall remain the sole and exclusive property of Company or its licensors.

Title. To the extent that you acquire any rights to the App or the Service or any Third Party Content, or any portion thereof, in a manner not set forth herein, you agree to execute, and to cause your representatives to execute, any assignment agreements or other instruments assigning, transferring and conveying to Rightway or its third party licensors, as applicable, all right,title, and interest in and to the App or the Service or any Third Party Content, including copyrights and other intellectual property, or to the extent such assignments are invalid, granting to Rightway or its third party licensors the exclusive and perpetual license to such rights without any duty of attribution or accounting.

Confidentiality. You acknowledge that the App, the Service, and the related algorithms, methods of implementation, methods of organizing and presenting prescription drug information, ideas, and all other information relating to the App and Service (collectively, the “Rightway Trade Secrets”) are trade secrets. You shall maintain the confidentiality of the Rightway Trade Secrets, shall hold the Rightway Trade Secrets in strict confidence, and shall not disclose the Rightway Trade Secrets to any third party, nor use for any purpose other than as expressly permitted by this Agreement. The obligation to maintain the confidentiality of the Rightway Trade Secrets is a fiduciary obligation that shall survive termination of this Agreement and continue for so long as the relevant information remains confidential and/or a trade secret.

Trademarks. You acknowledge that Company is the owner of various trademarks, including RIGHTWAY HEALTHCARE™, and such additional marks as Company may adopt in the future (collectively, the “Company Trademarks”). You may not use any of the Company Trademarks without Company’s express written permission (which may be withheld). Under no circumstances shall you adopt or use any trademarks that are confusingly similar to any of the Company Trademarks.

5. Updates.

Company may from time to time in its sole discretion develop and provide updates to the App or Service, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (a) the App will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates.You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so.

You further agree that all Updates will be deemed part of the App or Service and be subject to all terms and conditions of this Agreement.

6. Third-Party Materials

The App or Service may display, include, or make available Third Party Content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (collectively, “Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

7. Termination; Survival.

Termination. The term of Agreement commences when you access the App or enroll in the Service and will continue in effect until terminated by you or Company as set forth in this Section.

With respect to the Service, you may terminate this Agreement at any time by deleting the App and all copies thereof from your Mobile Device and by notifying Company that you wish to terminate your access to the Service. Company reserves the right to terminate this Agreement at any time and without prior notice to you; in addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

Upon termination, all rights granted to you under this Agreement will also terminate; and you must cease all use of the Service, including the App and all Third Party Content and delete all copies of the App from your Mobile Device.

Termination will not limit any of Company’s rights or remedies in this Agreement or otherwise by law or in equity.

Survival. Your obligations arising out of and the restrictions contained in Sections 1, 3, 4, 8, 9, 10, 11, and 12 shall survive termination of this Agreement.

8. Disclaimer of Warranties.

You acknowledge that the Service or App, including any Third Party Content, may not always be available, either by virtue of Company’s actions or conditions entirely beyond Company’s control and Company shall not be liable to you for any loss relating to the unavailability of the Service. Company does not warrant the accuracy or completeness of information that may be provided through the Service or App, including Third Party Content. You agree not to rely upon the Service or App, or any Third Party Content, as a substitute for the diagnosis, expertise, treatment, advice, and judgment of a physician, nurse, pharmacist or other healthcare professionals. Please see Appendix A for additional disclaimers that apply to the use of certain Third Party Content.

THE APP AND SERVICE ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APP OR SERVICE, INCLUDING 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, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP OR SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

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.

9. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE ANY OR ALL PORTIONS OF THE APP OR SERVICE FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR FOR (B)DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

Please see Appendix A for additional limitations of liability that apply to the use of certain Third Party Content.

10. Indemnification.

You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns, as well as the Company’s licensors and suppliers, 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 attorneys’ fees and court costs, arising from or relating to:

  1. any diagnosis, expertise, treatment, advice, or other services that you may receive from healthcare professionals, including physicians, nurses, and pharmacists; or
  2. your use or misuse of the Service or App or Third Party Materials or your breach of this Agreement, including but not limited to the content you submit or make available through the Service or App.

11. Interpreting the Agreement.

Severability. 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.

Force Majeure. Except with respect to payment obligations, neither party shall be liable for any failure or delay in its performance or equipment due to causes beyond such party’s reasonable control, including without limitation: acts of God, fire, flood, hurricanes, or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties; or failure of the Internet.

Entire Agreement. This Agreement constitutes the entire agreement and understanding between you and Company with respect to the App or Service, and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the App or Service.

Waiver. 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.

Notice. All notices hereunder shall be effective if delivered personally or sent by certified mail, postage prepaid, to: Rightway Healthcare, Inc., 422 West Broadway, Suite 3F, New York, New York 10012.

Assignment. Company may, in its sole discretion, assign any or all rights under this Agreement to a third party without any additional notice to or consent from you. You may not assign any or all of your rights under this Agreement to a third party without Company’s prior written approval and Company shall have sole discretion to determine whether to provide or withhold such approval.

Third-Party Beneficiary. You acknowledge and agree that, except as otherwise provided in this Agreement, there shall be no third party beneficiaries to this Agreement.

Governing Law and Judicial Forum. This Agreement will be interpreted in accordance with the laws of the State of New York without regard to conflict- or choice-of-law principles. In the event that you have opted out of arbitration (as set out below) or that the agreement to arbitrate is otherwise found not to apply to you or your claim, you and Rightway agree that any judicial proceeding (other than as described above) may only be brought in a court of competent jurisdiction in New York. Both you and Rightway consent to venue and personal jurisdiction there. Notwithstanding the foregoing, you and Rightway may bring an action in any court of competent jurisdiction (i) to compel arbitration pursuant to Section 12 below or (ii) to enforce an arbitral award issued thereunder.

12. Dispute Resolution and Agreement to Arbitrate on an Individual Basis.

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND RIGHTWAY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU AND RIGHTWAY CAN SEEK RELIEF FROM EACH OTHER.

You agree that any and all past, present and future disputes, claims or causes of action between you and Rightway arising out of or relating to this Agreement, the App or Service, the formation of this Agreement, or any other dispute between you and Rightway or any of Rightway’s licensors, distributors, suppliers or agents (including any application store or platform from which the Service is accessed or downloaded), and whether arising prior to or after your agreement to this Section, (collectively, “Dispute(s)”) will be governed by the procedure outlined below. You and Rightway further agree that any arbitration pursuant to this Section shall not proceed as a class, group, or representative action.

(a) Informal Dispute Resolution. Rightway wants to address your concerns without the need for a formal legal dispute. Before filing a claim against Rightway, you agree to try to resolve the Dispute informally by contacting info@rightwayhealthcare.com. Similarly, if you have provided an email address to us as part of your enrollment in the Service, Rightway agrees to do the same. If a dispute is not resolved within 30 days after the email noting the Dispute is sent, you or Rightway may initiate an arbitration proceeding as described below.

(b) We Both Agree To Arbitrate. By agreeing to these Terms, you and Rightway each and both agree to resolve any Disputes—including any Dispute concerning the enforceability, validity, scope, or severability of this agreement to arbitrate—through final and binding arbitration as discussed herein, except as set forth below.

(c) Opt-out of Agreement to Arbitrate. You may decline this agreement to arbitrate by contacting info@rightwayhealthcare.com within 30 days of first accepting these Terms and stating that you (include your first and last name, and email address) decline this arbitration agreement. By opting out of the agreement to arbitrate, you will not be precluded from using the Service, but you and Rightway will not permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.

(d) Arbitration Procedures and Fees.You and Rightway agree that JAMS in New York, New York will administer the arbitration under its JAMS Comprehensive Arbitration Rules & Procedures (“JAMS Rules”). Those rules are available at https://www.jamsadr.com/rules-comprehensive-arbitration/. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules.The arbitration proceeding and any award shall be confidential. You and Rightway further agree that the arbitration will be held in New York, New York, or, at your election, will be conducted telephonically or via other remote electronic means. The JAMS Rules will govern payment of all arbitration fees. This Section 12 shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.

(e) Arbitration Shall Proceed Individually. You and Rightway agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Rightway may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Rightway will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.

(f) Class Action and Collective Arbitration Waiver.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR RIGHTWAY SHALL BE ENTITLED TO CONSOLIDATE, JOIN, OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION (AS DEFINED ABOVE) OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN THE EVENT ALL OR ANY PORTION OF SUBSECTIONS (E) OR (F) OF THIS SECTION ARE FOUND TO BE INVALID OR LESS THAN FULLY ENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION MAY BE DEEMED VOID AND AS HAVING NO EFFECT UPON EITHER PARTY’S ELECTION.

(g) Intellectual Property Claims. You agree that notwithstanding the requirement that all Disputes be resolved through binding arbitration, in the event Company has a claim against you relating to copyright infringement, trademark infringement, patent infringement, actual or threatened misappropriation of trade secrets, or actual or threatened breach of the confidentiality provisions in this Agreement, Company may commence an action in state or federal court in New York, New York to obtain a temporary or preliminary injunction to prevent any or all such acts from continuing, with or without notice to you. Under such circumstances, you acknowledge that any such violation will result in irreparable harm to Company, and therefore you consent to the immediate issuance of a temporary or preliminary injunction. You further agree that such an injunction shall be conditioned upon Company posting an injunction bond in the amount of $5,000.00. Immediately following the entry of a temporary or preliminary injunction, the court that issued the injunction shall issue a stay of the proceedings pending resolution of binding arbitration consistent with the rest of this section. In the event Company prevails in the binding arbitration as to the issues or claims that resulted in the issuance of the temporary or preliminary injunction, the arbitrator in its decision shall convert the preliminary or temporary injunction to a permanent injunction.

APPENDIX A

The following additional terms apply to Medi-Span Content:

Disclaimer of Warranties

THE MEDI-SPAN CONTENT INCLUDES DATA AND INFORMATION FROM MANY INDEPENDENT SOURCES, INCLUDING DRUG MANUFACTURERS, RESEARCH INSTITUTIONS, AND GOVERNMENT AGENCIES. RIGHTWAY AND ITS LICENSORS CANNOT, AND DO NOT, INDEPENDENTLY REVIEW, VERIFY, TEST, INVESTIGATE OR SUBSTANTIATE ANY OF THE CONTENT FOR CORRECTNESS, ACCURACY, TIMELINESS OR COMPLETENESS, INCLUDING WITH RESPECT TO ANY CONTENT DESCRIPTIONS, PRICES OR INFORMATION CONCERNING MEDICAL DEVICES, AND DISCLAIM ALL RESPONSIBILITY FOR ANY ERRORS THEREIN AND FOR ANY ADVERSE CONSEQUENCES RESULTING THEREFROM. IN ADDITION, THE MEDI-SPAN CONTENT MAY NOT NECESSARILY COVER ALL POSSIBLE USES, DIAGNOSES, TREATMENT OPTIONS, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, DOSAGE LIMITATIONS, LOCAL PRACTICES OR ADVERSE EFFECTS APPLICABLE TO A PARTICULAR DRUG OR TREATMENT OR A PARTICULAR PATIENT. ALTHOUGH THE CONTENT COVERS A WIDE RANGE OF PRESCRIPTION AND NON-PRESCRIPTION DRUGS, IT DOES NOT INCLUDE ALL DRUGS, VACCINES, DEVICES AND DIAGNOSTIC AGENTS. ACCORDINGLY, AND WITHOUT LIMITING THE FOREGOING, THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION IS NOT AN INDICATION THAT THE DRUG, DOSAGE OR DRUG COMBINATION IS SAFE, APPROPRIATE OR EFFECTIVE FOR ANY PARTICULAR PATIENT.

THE MEDI-SPAN CONTENT MAY PROVIDE INFORMATION ABOUT MEDICATIONS, BUT IT IS LIMITED, INTENDED TO BE JUST ONE OF MANY SOURCES OF REFERENTIAL MATERIAL USED BY A LICENSED PROFESSIONAL, AND MAY BE CONFUSING TO CERTAIN PATIENTS WHEN NOT INTERPRETED BY A HEALTHCARE PROFESSIONAL. THE MEDI-SPAN CONTENT IS NOT INTENDED, AND YOU AGREE NOT TO RELY ON THE LICENSED CONTENT AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION OF AN ADMINISTRATION TECHNIQUE, OR JUDGMENT OF PHARMACISTS, PHYSICIANS, OR OTHER HEALTHCARE PROFESSIONALS.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RIGHTWAY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE ANY OR ALL PORTIONS OF THE MEDI-SPAN CONTENT FOR ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN EXCESS OF THE LICENSE FEES PAID BY RIGHTWAY TO WOLTERS KLUWER CLINICAL DRUG INFORMATION DURING THE TWELVE (12) MONTHS PRECEDING THE EARLIEST EVENT GIVING RISE TO SUCH LIABILITY.




Terms & Services

These Terms of Service (this ”Agreement”) is a binding agreement between you (“End User” or “you”) and Rightway Healthcare, Inc. (“we,” “us,” “our,”Company,” or “Rightway”). This Agreement governs your use of (i) the RightwayRx mobile application (the “App”) and (ii) the RightwayRx pharmacy benefits management service (“RightwayRx” or the “Service”).

BY ACCESSING THE APP OR THE SERVICE IN ANY CAPACITY, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE PROHIBITED FROM ACCESSING THE APP OR THE SERVICE IN ANY CAPACITY AND ANY LICENSES RELATED THERETO SHALL IMMEDIATELY TERMINATE.

THIS AGREEMENT includes a provision waiving the right to pursue any class, group, or representative claim and requiring you to pursue certain disputes through individual arbitration unless you opt-out within the specified time frame.PLEASE SEE SECTION 12 BELOW FOR MORE DETAIL.

To the extent that this Agreement conflicts with Rightway’s Services Agreement (or any related agreement) (a “Customer Agreement”) between Rightway and your plan sponsor (or the plan sponsor of the Rightway member, as applicable), that Customer Agreement shall control other than with respect to any content from third party licensors that is included in or otherwise made available by or through the App or Service (“Third Party Content”). With respect to Third Party Content, this Agreement shall control in all respects.

1. License; Limitations.

Limited License. Subject to the terms of this Agreement, Rightway grants you a limited, revocable, non-exclusive, and non-transferable license to:

(a) access and otherwise use the Service; and

(b) download, install, and use the App for your personal, non-commercial use on a mobile device owned or otherwise controlled by you (each, a “Mobile Device”) strictly in accordance with the App’s documentation.

This is not a sale of the App or Service, or of any Third Party Content. Any use or attempted use of the App or Service or any Thirty Party Content other than in accordance with this Agreement is prohibited.Company reserves the right to terminate this limited license at any time and for any reason, with or without notice to you.

Limitations and Restrictions on Use. You shall not:

(a) copy the App or Service or any Third Party Content, except as expressly permitted by this license;

(b) print any of the content on the App or Service or any Third Party Content;

(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the App or Service or any Third Party Content;

(d) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the App or Service or any Third Party Content, or any parts thereof;

(e) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App or Service or any Third Party Content, including any copy thereof;

(f) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App or Service or any Third Party Content, or any features or functionality of the App or Service or any Third Party Content, to any third party for any reason, including by making the App or Service or any Third Party Content available on a network where it is capable of being accessed by more than one device at any time; or

(g) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App or Service or any Third Party Content.

No Competition. Under no circumstances shall you use the App or Service or any Third Party Content, any portion thereof or any information derived therefrom, to develop or to assist any third party in developing any content, product(s) or service(s) in any format similar to, or which could be competitive with, the App or Service or any Third Party Content.

Additional Restrictions for Third Party Content. Please seeAppendix Afor additional terms and conditions that apply to the use of Third Party Content. In the event of changes in this Agreement related to the incorporation of Third Party Content, such changes and additional terms and conditions shall be presented in writing to you in advance. Rightway reserves the right to terminate access to the Third Party Content, modify the Third Party Content accessible hereunder, or add additional terms and conditions applicable to the Third Party Content, in each case effective immediately upon notice being made reasonably available to you.

2. Use of RightwayRx; Conditions; Restrictions.

Use of RightwayRx. Subject to availability and the terms and conditions of this Agreement, you may use the Service to view a recent history of your (or your dependents’) filled prescriptions; check the prices of your (or your dependents’) active prescriptions at nearby retail pharmacies; access a digital version of your (or your dependents’) Prescription ID Card; and receive updates on pending prescriptions undergoing clinical request processes. The Service and any content provided thereby, including the Medi-Span drug data owned by Wolters Kluwer Clinical Drug Information (“Medi-Span Content”) and any other Third Party Content:

  1. is intended and presented only for general educational purposes and is used solely at the risk of the user;
  2. is not intended as, and may not be used as, a substitute for the diagnosis, expertise, treatment, advice, and judgment of a physician, nurse, pharmacist or other healthcare professional (a health care professional should be consulted before taking or discontinuing a drug mentioned in the information presented or before relying on the information);
  3. is subject to change without notice;
  4. is not comprehensive and does not cover all uses, precautions, side effects, warnings, and interactions related to pharmaceuticals or treatments;
  5. may not apply to any specific medical condition;
  6. does not take into account personal circumstances and should not be relied upon or construed to indicate that a use of a drug or treatment is safe, appropriate, or effective for a given individual;
  7. is only applicable to use in the United States and its territories and to pharmaceuticals legally available in the United States and its territories;
  8. does not constitute medical advice or professional advice of any kind; and
  9. has not been reviewed for compliance with federal or state pharmaceutical marketing, advertising, and disclosure statutes or regulations.

Service Fees. The service fees for use of the Service have been paid by your plan sponsor(or the plan sponsor of the Rightway member, as applicable). In the event that your (or the member’s) plan sponsor fails to pay for continued access to the Service, we reserve the right to suspend or terminate your use of the Service.

Modification of Service Fees. Company reserves the right to modify the service fees imposed for the use of the Service.

Other Fees or Costs. Your right to use the Service, including the App, does not include any health care providers’ fees or the cost of any prescriptions (for which you and your health insurance may be responsible). Likewise, we make no guarantee that health care providers’ fees or the cost of prescriptions will be covered, in full or in part, by any health insurance you may have.

Internet Access. You shall be solely responsible, financially and otherwise, for providing your own Internet access. You acknowledge that the Service is an on-line system that can only be accessed via the Internet.

No Agency. Nothing in this Agreement shall create a joint venture or shall authorize you to enter into any contract or commitment on behalf of Company.

No Use of RightwayRx by Children. You acknowledge that the Service is not intended for use by children under the age of eighteen (18) years old. Children under the age of eighteen (18) years old are prohibited from using the Service or accessing or using any content provided thereby, including any Third Party Content.

3. HIPAA Compliance.

You acknowledge that using the Service will involve the transmission of certain personal data which could be considered Protected Health Information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended, including, without limitation, your name, contact information, date of birth, social security number, your health plan(s) and provider(s) (e.g., medical, dental, and vision), and information about your medical diagnoses, treatment, prescriptions, and claims, as well as the name, contact information, date of birth, social security number, health plan(s) and provider(s), and medical diagnosis, treatment, prescriptions, and claims information about your spouse and dependent(s).

Employees of Self-Insured Employers

The Company acts as a “business associate,” as defined by HIPAA, with respect to self-insured employers, which are subject to HIPAA as “covered entities.” As required by HIPAA, the Company executes a business associate agreement with self-insured employers, which governs such employers’ disclosure of PHI to the Company.

Employees of Employers That Are Not Self-Insured

You acknowledge that the Company is neither a covered entity nor a business associate, as defined under HIPAA, with respect to employers that insure their employees through third-party insurers. Employees of those employers must therefore explicitly authorize the Company to receive and use their PHI in order for Rightway to be able to provide the full Service. The Company presents employees in this category the opportunity to submit an electronic HIPAA authorization form upon enrollment in the Service. In the event that a health insurer or health care provider requires the employee to sign an additional authorization form before such insurer or provider will disclose employee PHI to the Company, the employee will need to sign this additional form before the Company is able to provide the applicable Service.

4. Intellectual Property.

Ownership of App and Service. As between you and the Company, you acknowledge that Company is the sole and exclusive owner of the App and the Service, except for any Third Party Content, which is the proprietary content of Rightway’s licensors. You further acknowledge that nothing in this Agreement shall constitute an assignment or other transfer of rights in the App or Service or any Third Party Content to you. All rights associated with the App and Service, including without limitation all copyrights, patents, and trade secrets, shall remain the sole and exclusive property of Company or its licensors.

Title. To the extent that you acquire any rights to the App or the Service or any Third Party Content, or any portion thereof, in a manner not set forth herein, you agree to execute, and to cause your representatives to execute, any assignment agreements or other instruments assigning, transferring and conveying to Rightway or its third party licensors, as applicable, all right,title, and interest in and to the App or the Service or any Third Party Content, including copyrights and other intellectual property, or to the extent such assignments are invalid, granting to Rightway or its third party licensors the exclusive and perpetual license to such rights without any duty of attribution or accounting.

Confidentiality. You acknowledge that the App, the Service, and the related algorithms, methods of implementation, methods of organizing and presenting prescription drug information, ideas, and all other information relating to the App and Service (collectively, the “Rightway Trade Secrets”) are trade secrets. You shall maintain the confidentiality of the Rightway Trade Secrets, shall hold the Rightway Trade Secrets in strict confidence, and shall not disclose the Rightway Trade Secrets to any third party, nor use for any purpose other than as expressly permitted by this Agreement. The obligation to maintain the confidentiality of the Rightway Trade Secrets is a fiduciary obligation that shall survive termination of this Agreement and continue for so long as the relevant information remains confidential and/or a trade secret.

Trademarks. You acknowledge that Company is the owner of various trademarks, including RIGHTWAY HEALTHCARE™, and such additional marks as Company may adopt in the future (collectively, the “Company Trademarks”). You may not use any of the Company Trademarks without Company’s express written permission (which may be withheld). Under no circumstances shall you adopt or use any trademarks that are confusingly similar to any of the Company Trademarks.

5. Updates.

Company may from time to time in its sole discretion develop and provide updates to the App or Service, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality.

Based on your Mobile Device settings, when your Mobile Device is connected to the internet either: (a) the App will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates.You shall promptly download and install all Updates and acknowledge and agree that the App or portions thereof may not properly operate should you fail to do so.

You further agree that all Updates will be deemed part of the App or Service and be subject to all terms and conditions of this Agreement.

6. Third-Party Materials

The App or Service may display, include, or make available Third Party Content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (collectively, “Third-Party Materials”). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

7. Termination; Survival.

Termination. The term of Agreement commences when you access the App or enroll in the Service and will continue in effect until terminated by you or Company as set forth in this Section.

With respect to the Service, you may terminate this Agreement at any time by deleting the App and all copies thereof from your Mobile Device and by notifying Company that you wish to terminate your access to the Service. Company reserves the right to terminate this Agreement at any time and without prior notice to you; in addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

Upon termination, all rights granted to you under this Agreement will also terminate; and you must cease all use of the Service, including the App and all Third Party Content and delete all copies of the App from your Mobile Device.

Termination will not limit any of Company’s rights or remedies in this Agreement or otherwise by law or in equity.

Survival. Your obligations arising out of and the restrictions contained in Sections 1, 3, 4, 8, 9, 10, 11, and 12 shall survive termination of this Agreement.

8. Disclaimer of Warranties.

You acknowledge that the Service or App, including any Third Party Content, may not always be available, either by virtue of Company’s actions or conditions entirely beyond Company’s control and Company shall not be liable to you for any loss relating to the unavailability of the Service. Company does not warrant the accuracy or completeness of information that may be provided through the Service or App, including Third Party Content. You agree not to rely upon the Service or App, or any Third Party Content, as a substitute for the diagnosis, expertise, treatment, advice, and judgment of a physician, nurse, pharmacist or other healthcare professionals. Please see Appendix A for additional disclaimers that apply to the use of certain Third Party Content.

THE APP AND SERVICE ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APP OR SERVICE, INCLUDING 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, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP OR SERVICE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

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.

9. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE ANY OR ALL PORTIONS OF THE APP OR SERVICE FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; OR FOR (B)DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE.

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

Please see Appendix A for additional limitations of liability that apply to the use of certain Third Party Content.

10. Indemnification.

You agree to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns, as well as the Company’s licensors and suppliers, 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 attorneys’ fees and court costs, arising from or relating to:

  1. any diagnosis, expertise, treatment, advice, or other services that you may receive from healthcare professionals, including physicians, nurses, and pharmacists; or
  2. your use or misuse of the Service or App or Third Party Materials or your breach of this Agreement, including but not limited to the content you submit or make available through the Service or App.

11. Interpreting the Agreement.

Severability. 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.

Force Majeure. Except with respect to payment obligations, neither party shall be liable for any failure or delay in its performance or equipment due to causes beyond such party’s reasonable control, including without limitation: acts of God, fire, flood, hurricanes, or other catastrophes; any law, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; national emergencies, insurrections, riots, wars; unavailability of rights-of-way or materials; or strikes, lock-outs, work stoppages, or other labor difficulties; or failure of the Internet.

Entire Agreement. This Agreement constitutes the entire agreement and understanding between you and Company with respect to the App or Service, and supersedes all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the App or Service.

Waiver. 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.

Notice. All notices hereunder shall be effective if delivered personally or sent by certified mail, postage prepaid, to: Rightway Healthcare, Inc., 422 West Broadway, Suite 3F, New York, New York 10012.

Assignment. Company may, in its sole discretion, assign any or all rights under this Agreement to a third party without any additional notice to or consent from you. You may not assign any or all of your rights under this Agreement to a third party without Company’s prior written approval and Company shall have sole discretion to determine whether to provide or withhold such approval.

Third-Party Beneficiary. You acknowledge and agree that, except as otherwise provided in this Agreement, there shall be no third party beneficiaries to this Agreement.

Governing Law and Judicial Forum. This Agreement will be interpreted in accordance with the laws of the State of New York without regard to conflict- or choice-of-law principles. In the event that you have opted out of arbitration (as set out below) or that the agreement to arbitrate is otherwise found not to apply to you or your claim, you and Rightway agree that any judicial proceeding (other than as described above) may only be brought in a court of competent jurisdiction in New York. Both you and Rightway consent to venue and personal jurisdiction there. Notwithstanding the foregoing, you and Rightway may bring an action in any court of competent jurisdiction (i) to compel arbitration pursuant to Section 12 below or (ii) to enforce an arbitral award issued thereunder.

12. Dispute Resolution and Agreement to Arbitrate on an Individual Basis.

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND RIGHTWAY TO ARBITRATE CERTAIN DISPUTES AND CLAIMS ON AN INDIVIDUAL BASIS AND LIMITS THE MANNER IN WHICH YOU AND RIGHTWAY CAN SEEK RELIEF FROM EACH OTHER.

You agree that any and all past, present and future disputes, claims or causes of action between you and Rightway arising out of or relating to this Agreement, the App or Service, the formation of this Agreement, or any other dispute between you and Rightway or any of Rightway’s licensors, distributors, suppliers or agents (including any application store or platform from which the Service is accessed or downloaded), and whether arising prior to or after your agreement to this Section, (collectively, “Dispute(s)”) will be governed by the procedure outlined below. You and Rightway further agree that any arbitration pursuant to this Section shall not proceed as a class, group, or representative action.

(a) Informal Dispute Resolution. Rightway wants to address your concerns without the need for a formal legal dispute. Before filing a claim against Rightway, you agree to try to resolve the Dispute informally by contacting info@rightwayhealthcare.com. Similarly, if you have provided an email address to us as part of your enrollment in the Service, Rightway agrees to do the same. If a dispute is not resolved within 30 days after the email noting the Dispute is sent, you or Rightway may initiate an arbitration proceeding as described below.

(b) We Both Agree To Arbitrate. By agreeing to these Terms, you and Rightway each and both agree to resolve any Disputes—including any Dispute concerning the enforceability, validity, scope, or severability of this agreement to arbitrate—through final and binding arbitration as discussed herein, except as set forth below.

(c) Opt-out of Agreement to Arbitrate. You may decline this agreement to arbitrate by contacting info@rightwayhealthcare.com within 30 days of first accepting these Terms and stating that you (include your first and last name, and email address) decline this arbitration agreement. By opting out of the agreement to arbitrate, you will not be precluded from using the Service, but you and Rightway will not permitted to invoke the mutual agreement to arbitrate to resolve Disputes under the terms otherwise provided herein.

(d) Arbitration Procedures and Fees.You and Rightway agree that JAMS in New York, New York will administer the arbitration under its JAMS Comprehensive Arbitration Rules & Procedures (“JAMS Rules”). Those rules are available at https://www.jamsadr.com/rules-comprehensive-arbitration/. Arbitration will proceed on an individual basis and will be handled by a sole arbitrator in accordance with those rules.The arbitration proceeding and any award shall be confidential. You and Rightway further agree that the arbitration will be held in New York, New York, or, at your election, will be conducted telephonically or via other remote electronic means. The JAMS Rules will govern payment of all arbitration fees. This Section 12 shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.

(e) Arbitration Shall Proceed Individually. You and Rightway agree that the arbitration of any Dispute shall proceed on an individual basis, and neither you nor Rightway may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”). Without limiting the generality of the foregoing, a claim to resolve any Dispute against Rightway will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.

(f) Class Action and Collective Arbitration Waiver.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU NOR RIGHTWAY SHALL BE ENTITLED TO CONSOLIDATE, JOIN, OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR PARTICIPATE IN ANY COLLECTIVE ARBITRATION (AS DEFINED ABOVE) OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE (AS DEFINED ABOVE), ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, IN THE EVENT ALL OR ANY PORTION OF SUBSECTIONS (E) OR (F) OF THIS SECTION ARE FOUND TO BE INVALID OR LESS THAN FULLY ENFORCEABLE, THEN THE ENTIRETY OF THIS SECTION MAY BE DEEMED VOID AND AS HAVING NO EFFECT UPON EITHER PARTY’S ELECTION.

(g) Intellectual Property Claims. You agree that notwithstanding the requirement that all Disputes be resolved through binding arbitration, in the event Company has a claim against you relating to copyright infringement, trademark infringement, patent infringement, actual or threatened misappropriation of trade secrets, or actual or threatened breach of the confidentiality provisions in this Agreement, Company may commence an action in state or federal court in New York, New York to obtain a temporary or preliminary injunction to prevent any or all such acts from continuing, with or without notice to you. Under such circumstances, you acknowledge that any such violation will result in irreparable harm to Company, and therefore you consent to the immediate issuance of a temporary or preliminary injunction. You further agree that such an injunction shall be conditioned upon Company posting an injunction bond in the amount of $5,000.00. Immediately following the entry of a temporary or preliminary injunction, the court that issued the injunction shall issue a stay of the proceedings pending resolution of binding arbitration consistent with the rest of this section. In the event Company prevails in the binding arbitration as to the issues or claims that resulted in the issuance of the temporary or preliminary injunction, the arbitrator in its decision shall convert the preliminary or temporary injunction to a permanent injunction.

APPENDIX A

The following additional terms apply to Medi-Span Content:

Disclaimer of Warranties

THE MEDI-SPAN CONTENT INCLUDES DATA AND INFORMATION FROM MANY INDEPENDENT SOURCES, INCLUDING DRUG MANUFACTURERS, RESEARCH INSTITUTIONS, AND GOVERNMENT AGENCIES. RIGHTWAY AND ITS LICENSORS CANNOT, AND DO NOT, INDEPENDENTLY REVIEW, VERIFY, TEST, INVESTIGATE OR SUBSTANTIATE ANY OF THE CONTENT FOR CORRECTNESS, ACCURACY, TIMELINESS OR COMPLETENESS, INCLUDING WITH RESPECT TO ANY CONTENT DESCRIPTIONS, PRICES OR INFORMATION CONCERNING MEDICAL DEVICES, AND DISCLAIM ALL RESPONSIBILITY FOR ANY ERRORS THEREIN AND FOR ANY ADVERSE CONSEQUENCES RESULTING THEREFROM. IN ADDITION, THE MEDI-SPAN CONTENT MAY NOT NECESSARILY COVER ALL POSSIBLE USES, DIAGNOSES, TREATMENT OPTIONS, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, DOSAGE LIMITATIONS, LOCAL PRACTICES OR ADVERSE EFFECTS APPLICABLE TO A PARTICULAR DRUG OR TREATMENT OR A PARTICULAR PATIENT. ALTHOUGH THE CONTENT COVERS A WIDE RANGE OF PRESCRIPTION AND NON-PRESCRIPTION DRUGS, IT DOES NOT INCLUDE ALL DRUGS, VACCINES, DEVICES AND DIAGNOSTIC AGENTS. ACCORDINGLY, AND WITHOUT LIMITING THE FOREGOING, THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION IS NOT AN INDICATION THAT THE DRUG, DOSAGE OR DRUG COMBINATION IS SAFE, APPROPRIATE OR EFFECTIVE FOR ANY PARTICULAR PATIENT.

THE MEDI-SPAN CONTENT MAY PROVIDE INFORMATION ABOUT MEDICATIONS, BUT IT IS LIMITED, INTENDED TO BE JUST ONE OF MANY SOURCES OF REFERENTIAL MATERIAL USED BY A LICENSED PROFESSIONAL, AND MAY BE CONFUSING TO CERTAIN PATIENTS WHEN NOT INTERPRETED BY A HEALTHCARE PROFESSIONAL. THE MEDI-SPAN CONTENT IS NOT INTENDED, AND YOU AGREE NOT TO RELY ON THE LICENSED CONTENT AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION OF AN ADMINISTRATION TECHNIQUE, OR JUDGMENT OF PHARMACISTS, PHYSICIANS, OR OTHER HEALTHCARE PROFESSIONALS.

Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RIGHTWAY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE ANY OR ALL PORTIONS OF THE MEDI-SPAN CONTENT FOR ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN EXCESS OF THE LICENSE FEES PAID BY RIGHTWAY TO WOLTERS KLUWER CLINICAL DRUG INFORMATION DURING THE TWELVE (12) MONTHS PRECEDING THE EARLIEST EVENT GIVING RISE TO SUCH LIABILITY.