RIGHTWAY HEALTHCARE SOFTWARE LICENSE AND SERVICES AGREEMENT

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THE RIGHTWAY HEALTHCARE SOFTWARE OR SERVICE.  YOUR USE OF THE RIGHTWAY HEALTHCARE SOFTWARE AND SERVICE IS SUBJECT TO THE TERMS OF THIS RIGHTWAY HEALTHCARE SOFTWARE LICENSE AND SERVICES AGREEMENT (THE “AGREEMENT”).

By using the Rightway software and service, you agree to the following terms and conditions:

  1. Software License; Limitations.
  1. Limited Software License. Provided you comply with the terms and restrictions in this Agreement, Rightway Healthcare, Inc. (“Company”) grants you a non-exclusive license to use the Rightway Healthcare Software on your smart phone for purposes of using the Rightway Healthcare Service, and to use the Rightway Healthcare Service when accessed via a web browser.  Company reserves the right to terminate this limited license at any time and for any reason.
  2. Limitations and Restrictions on Use.  You shall not: (a) post or otherwise make available the Rightway Healthcare Software, or any portion thereof, in any form, on the Internet; (b) use the Rightway Healthcare Software for any reason or purpose other than your own personal use, including without limitation using the Rightway Healthcare Software or Rightway Healthcare Service in connection with any service business; (c) reverse engineer, disassemble, or otherwise reduce the Rightway Healthcare Software to a human-perceivable form (and in connection with this, you recognize that the Software contains trade secret information); (d) reverse engineer the Rightway Healthcare Service; (e) MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN, RESELL FOR PROFIT, DISTRIBUTE, OR CREATE DERIVATIVE WORKS BASED UPON THE RIGHTWAY HEALTHCARE SOFTWARE, THE RIGHTWAY HEALTHCARE SERVICE, OR ANY PART THEREOF.
  3. Use of Company Recommended Equipment. The Rightway Healthcare Software was designed to work with iPhones running iOS versions 10.0 and higher.  You acknowledge that the Rightway Healthcare Software was not intended to operate on any other platform or device or older versions of operating systems.  To the extent you access the Rightway Healthcare Service through a web browser, Company may recommend computer hardware, software, operating systems or other equipment or services necessary to provide You with the best experience when using the Rightway Healthcare Service.  Company cannot guarantee what results you may obtain using the Rightway Healthcare Software or Service on any other platform or device, and Company shall not be responsible for problems associated with using the Rightway Healthcare Software or Service on platforms or equipment which have not been recommended.
  4. No Use of Rightway Healthcare Software by Children.  You acknowledge that the Rightway Healthcare Software 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 installing and using the Rightway Healthcare Software.  
  1. Use of Rightway Healthcare Service; Conditions; Restrictions.
  1. Use of Rightway Healthcare Service.  Subject to availability and the terms and conditions of this Agreement, you may use the Rightway Healthcare Service to look up health care and diagnostic services providers.  
  2. Service Fees.  The service fees for use of the Rightway Healthcare Software and Service have been paid by your employer or union.  In the event that your employer or union fails to pay for continued access to the Rightway Healthcare Service, we reserve the right to suspend and/or terminate your use of the Rightway Healthcare Software and Service.
  3. Provider Fees.  Your right to use the Rightway Healthcare Software and Service does not include any health care and diagnostic service providers’ fees (for which you and your health insurance may be responsible).  Likewise, we make no guarantee that all health care and diagnostic service providers who may be listed in the Rightway Healthcare Software and Service will be covered by any health insurance you may have, or that such providers will agree to accept you as a patient.  
  4. Appointments; Requirements; Limitations.  In order to schedule appointments on your behalf, we must have accurate information.  If you have not provided us with accurate information, it may not be possible to schedule appointments for you.  In addition, you acknowledge and agree that: (a) in the event you must present a prescription in order to schedule or confirm an appointment with a specialist or diagnostic service provider, you may be required to separately contact the specialist or diagnostic service provider in order to schedule or confirm the appointment (the Rightway Healthcare Service will not transmit any prescriptions when attempting to make appointments); (b) you will arrive to appointments we make on your behalf at least 30 minutes prior to the scheduled appointment; and (c) you may be required to provide the health care or diagnostic service provider with additional information once you arrive for such appointments.  You acknowledge that Company has no control over the health care and diagnostic services providers, and that Company cannot guarantee that such providers will be on time or otherwise timely honor appointments as scheduled.  You also acknowledge that any appointments made using the Rightway Healthcare Service will involve the transmission of certain personal data which could be considered “Protected Health Information” under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) as defined in 45 C.F.R. §160.103, including without limitation your name, date of birth, and health insurance information.  You further acknowledge that Company is not a “covered entity” or a “business associate,” as those terms are defined in HIPAA, and therefore, is not subject to the proscriptive requirements of HIPAA with respect to the privacy and security of Protected Health Information.  However, Company respects your privacy, and will exercise commercially reasonable efforts to protect the personal data you provide.  
  5. Modification of Service Fees.  Company reserves the right to modify the service fees imposed for the use of the Rightway Healthcare Service.
  6. Internet Access.  You shall be solely responsible, financially and otherwise, for providing your own Internet access.  You acknowledge that the Rightway Healthcare Service is an on-line system which can only be accessed via the Internet, and that the Rightway Healthcare Software must be able to connect to the Rightway Healthcare Service in order to operate properly.
  7. 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.  
  8. No Use of Rightway Healthcare Service by Children.  You acknowledge that the Rightway Healthcare 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 installing and using the Rightway Healthcare Service.
  1. Intellectual Property.
  1. Ownership of Software.  You acknowledge that Company is the sole and exclusive owner of the Rightway Healthcare Software and Service.  You further acknowledge that nothing in this Agreement shall constitute an assignment or other transfer of rights in the Rightway Healthcare Software or Service to you.  All rights associated with the Rightway Healthcare Software and Service, including without limitation all copyrights, patents, and trade secrets, shall remain the sole and exclusive property of Company.
  2. Confidentiality. You acknowledge that the Rightway Healthcare Software, Rightway Healthcare Service and the related algorithms, methods of implementation, methods of organizing and presenting health care and diagnostic service providers, ideas, and all other information relating to the Rightway Healthcare Software and Service (collectively, the “Rightway Trade Secrets”) are trade secrets as defined by Florida’s adoption of the Uniform Trade Secrets Act, Florida Statutes §688.001 et seq.  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 Company.  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.
  3. 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.
  4. Authorization to Use and Release Personal Data.  You acknowledge that any appointments made using the Rightway Healthcare Service will involve the transmission of certain personal data which could be considered “Protected Health Information” under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) as defined in 45 C.F.R. §160.103, including without limitation your name, date of birth, and health insurance information.  You further acknowledge that Company is not a “covered entity” or a “business associate,” as those terms are defined in HIPAA, and therefore, is not subject to the proscriptive requirements of HIPAA with respect to the privacy and security of Protected Health Information.  By using the Rightway Healthcare Service to schedule an appointment with a health care or diagnostic services provider, you are authorizing Company to use and disclose your personal data to such health care or diagnostic service providers.
  1. Indemnification and Defense.  You acknowledge that Company has no control over the health care and diagnostic service providers that you may elect to use, and that Company cannot be responsible for any injury or loss that you may suffer by virtue of receiving treatment or services from such providers.  Accordingly, you shall defend, indemnify and hold harmless Company, its subsidiaries, affiliates, officers, directors, employees, representatives, agents, customers and the like against any claim (including attorney’s fees and court costs at all court levels) relating in any way to any treatment or services that you may receive from health care and diagnostic service providers.  You shall further indemnify, defend and hold Company harmless against any loss or liability (including without limitation attorney’s fees and court costs) arising out of or otherwise related to this Agreement.
  2. Limitation of Liability.  You acknowledge that the Rightway Healthcare Service 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 Rightway Healthcare Service.  You further acknowledge that Company is not making any recommendations as to any particular health care or diagnostic services provider, but rather, is merely providing information about potential providers as that information was made available to Company. Company does not warrant the accuracy of information regarding health care and diagnostic service providers that you may receive through the Rightway Healthcare Service.  You agree that you will independently verify information about potential health care and diagnostic service providers prior to selecting and using such providers, and that you will not rely upon the information that may be provided through the Rightway Healthcare Service.  EXCEPT AS EXPRESSLY STATED HEREIN, THE RIGHTWAY HEALTHCARE SOFTWARE AND SERVICE ARE PROVIDED TO YOU ON AN AS-IS BASIS WITH NO WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTERHWISE, AND COMPANY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  COMPANY DOES NOT WARRANT THAT THE RIGHTWAY HEALTHCARE SOFTWARE AND SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DELAY AND SHALL NOT BE LIABLE FOR ANY LOSS OF DATA.  COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR PROGRAMS OR OTHER DATA) THAT ARE RELATED TO YOUR USE OF THE RIGHTWAY HEALTHCARE SOFTWARE OR SERVICE, EVEN IF COMPANY HAS BEEN EXPRESSLY ADVISED OF THE POSSIBLITY OF SUCH DAMAGE.
  3. Termination; Survival.
  1. Termination.  You may terminate this Agreement at any time by deleting the Rightway Healthcare Software off of your smart phone and by notifying Company that you wish to terminate your access to the Rightway Healthcare Service.  Company reserves the right to terminate this Agreement at any time and without prior notice to you.
  2. Survival.  Your obligations arising out of and the restrictions contained in Sections 1.2, 3, and 4 (where applicable) shall survive termination of this Agreement.
  1. Interpreting the Agreement.
  1. Entire Agreement; Construction; Modification.  This Agreement sets forth the entire agreement and understanding between the parties hereto and supersedes all prior understandings, agreements, and documentation relating to the subject matter hereof.  This Agreement cannot be amended, modified or changed orally.  If any provision of this Agreement is found to be contrary to law or otherwise invalid, void or unenforceable, it shall be deemed omitted and shall not affect the remaining terms of this Agreement, which shall remain in full force and effect.  This Agreement may not be altered or amended except by a written instrument signed by both parties.  Any written amendments or changes shall be effective only after signed by both parties.
  2. 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.
  3. 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.
  4. Notices; Non-Waiver.  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.  No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein.  All rights and remedies of Company under this Agreement and at law shall be deemed cumulative.
  5. 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.
  6. Neutral Construction.  You acknowledge and agree that this Agreement shall be deemed to have been jointly and equally drafted, and that the provisions of this Agreement therefore should not be construed against a party or parties on the grounds that the party or parties drafted or was/were more responsible than the other party, for drafting the provision(s).
  7. Governing Law; Disputes; Binding Arbitration.  This Agreement shall be construed and governed by the laws of the State of Florida (without regard to its principles regarding conflict of laws).  You hereby
  1. agree that any dispute arising out of or otherwise related to this Agreement or the parties shall be resolved exclusively through binding arbitration pursuant to JAMS Comprehensive Arbitration Rules & Procedures and administered by JAMS in Miami-Dade County, Florida.  In any such dispute, the parties shall bear their own attorney’s fees and costs.  A judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof;
  2. consent to the exclusive jurisdiction of JAMS in Miami-Dade County, Florida, in any such dispute, action or proceeding and expressly waive the right to proceed in any other jurisdiction, court, forum or venue;
  3. agree that notwithstanding the requirement that all disputes arising out of or otherwise related to this Agreement or the parties 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 the state or federal court for Miami-Dade County, Florida 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 acknowledges 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 7.7.  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;
  4. waive any objection which they may have the venue of any such dispute, suite, action or proceeding in Miami-Dade County, Florida;
  5. WAIVE THE RIGHT TO COMMENCE AN ACTION IN ANY WAY RELATING TO THIS AGREEMENT OR TO ANY OTHER DISPUTE BETWEEN THE PARTIES IN ANY JURISDICTION OTHER THAN MIAMI-DADE COUNTY, FLORIDA, AND WAIVE ANY OBJECTIONS THEY MAY HAVE RELATING TO PERSONAL JURISDICTION;
  6. WAIVE THE RIGHT TO TRIAL BY JURY OF ANY CLAIM, COUNTERCLAIM OR OTHER MATTER IN ANY SUIT, ACTION OR OTHER PROCEEDING ARISING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE PARITES.  FOR SUCH TIME AS THIS AGREEMENT REMAINS IN EFFECT, THE PARTIES IRREVOCABLY AGREE AND CONSENT THAT ANY SERVICE OF PROCESS MADE BY REGISTERED OR CERTIFIED MAIL TO THE ADDRESS PROVIDED FOR IN THIS AGREEMENT OR SUCH OTHER ADDRESSES AS MAY BE FURNISED BY EITHER PARTY TO EACH OTHER IN WRITING, SHALL BE TAKEN AND HELD TO BE VALID PERSONAL SERVICE UPON THE PARTIES AND THAT ANY SUCH SERVICE OF PROCESS WAS MADE UPON THE PARTIES ACCORDING TO THE LAWS GOVERNING THE VALIDITY AND REQUIREMENTS OF SUCH SERVICE IN SUCH STATE, AND WAIVE ALL CLAIM OF ERROR BY REASON OF ANY SUCH SERVICE.