2021/07/28 Council Agenda Packet

rightway 55 Hudson Yards, Floor 29 New York, NY 10001 rightwayhealthcare.com EXHIBIT A TO ORDERING DOCUMENT - RIGHTWAY HEALTHCARE ENTERPRISE TERMS OF SERVICE These Terms of Service are incorporated by reference into the Ordering Document entered into by and between Rightway Healthcare, Inc. ("Rightway" or "Vendor") and the Customer as defined on the Ordering Document executed by Rightway and such Customer (collectively herein, the "Parties"). The Ordering Document and these Terms of Service, together with any exhibits thereto, are collectively referred to in these Terms of Service as the "Agreement." Capitalized terms used but not otherwise defined herein shall have the meanings ascribed thereto on Schedule A attached hereto. 1. SERVICES 1.1. Services. Subject to Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, during the Term, Vendor will use commercially reasonable efforts to provide to Customer and its Authorized Users the services described the Ordering Document (collectively, the "Services"). Customer agrees to pay Vendor the fees on the Ordering Document in accordance with the payment terms thereon. 1.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties: (a) Vendor will retain sole control over the operation, provision, and management of the Services and Vendor Materials, including the (i) Vendor Systems, (ii) selection, deployment, modification and replacement of the Service Software, and (iii) performance of Service maintenance, upgrades, corrections and repairs; and (b) Customer has and will retain sole control over the operation, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Services and Vendor Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any (i) information, instructions or materials provided by any of them to the Services or Vendor, (ii) results obtained from any use of the Services or Vendor Materials and (iii) conclusions, decisions or actions based on such use. Customer shall employ appropriate physical, administrative and technical controls, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data to Vendor. 1.3. Changes. Vendor reserves the right to make changes to the Services and Vendor Materials that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Vendor's services to its customers, the competitive strength of or market for Vendor's services or the Services' cost efficiency or performance; or (b) comply with applicable Law. Vendor may suspend, terminate or otherwise deny Customer's, any Authorized User's use of all or any part of the Services or Vendor Materials, without incurring any resulting obligation or liability, if: (a) Vendor receives a judicial or other governmental request that requires Vendor to do so; (b) Vendor believes that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or has accessed or used the Services beyond the scope of the rights granted; (ii) Customer or any Authorized User is, or has been involved in any fraudulent, misleading or unlawful activities; or (c) this Agreement expires or is terminated. 2. CONFIDENTIALITY; BAA; MATERIALS 2.1 Confidentiality. "Confidential Information" shall include any information that is clearly identified in writing at the time of disclosure as confidential such as vendor or supplier information, financial projections, business plans and information, client and Customer data, Personal Data (as defined below), sales and product plans and data, product and technical specifications. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the receiving party; or (4) the receiving party becomes aware of, from a third party not bound by non- disclosure obligations to the disclosing party and with the lawful right to disclose such information. 2.2. Each Party agrees: (a) to keep confidential all Confidential Information of the other Party; (b) not to use or disclose the other Party's Confidential Information except as reasonably necessary to perform under this Agreement; (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information).Notwithstanding the foregoing, this Section 3.a(2) will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law (including the Washington State Public Records Act) or order of a court or other governmental authority or regulation provided that the receiving party first provides the disclosing party with prompt written notice of such requirement (provided such notice is legally permissible) and reasonable cooperation to the disclosing party should it seek protective arrangements for the production of such Confidential Information. 2.3. Business Associate Agreement. The parties acknowledge and agree that the terms and conditions set forth in the Business Associate Agreement ("BAA") executed by the parties are incorporated by reference into this Agreement. In the event of any inconsistency between this Agreement and the BAA as it may relate to "Protected Health Information," as defined in 45 C.F.R. § 160.103, the provisions of the BAA shall govern.