2021/07/28 Council Agenda Packet

rightway WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD -PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD -PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD -PARTY OWNER OR DISTRIBUTOR OF THE THIRD -PARTY MATERIALS. 4.3. Limitation of Liability. IN NO EVENT WILL EITHER PARTY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUPPLIERS OR AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; OR (b) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL EITHER PARTY'S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF ALL FEES PAID OR OWED BY CUSTOMER TO VENDOR DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM (THE "DAMAGES CAP"); PROVIDED THAT, SOLELY WITH RESPECT TO CLAIMS ARISING OUT OF A BREACH OF CONFIDENTIALITY OR THE BAA, THE DAMAGES CAP SHALL BE DEEMED TO BE THE GREATER OF (A) THE SUM OF ALL FEES PAID BY CUSTOMER TO VENDOR DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM AND (B) $1,000,000 (OR SUCH GREATER AMOUNT AS MAY BE AVAILABLE UNDER VENDOR'S INSURANCE POLICIES FROM TIME TO TIME WITH RESPECT TO THE APPLICABLE CLAIMS). 5. MISCELLANEOUS 5.1. Survival. Notwithstanding the expiration or termination of this Agreement, the rights and obligations contained in any provision of this Agreement, which, by its nature would survive termination of this Agreement, including without limitation sections entitled Confidentiality, Vendor and Customer Materials, Effect of Termination, Disclaimer, Limitation of Liability, and Miscellaneous, shall survive the expiration or termination of this Agreement. 5.2. Notices. Any notice, request, instruction, or other document to be given hereunder by any Party to any other Party shall be in writing and shall be given by delivery in person, by electronic mail, by reputable overnight courier, or by registered or certified mail, postage prepaid. If to Customer, to the address first listed or otherwise designated in the Ordering Document. if to Vendor to: Rightway Healthcare, Inc. 55 Hudson Yards, 29th Fl New York, NY 10001 Attention: Jordan Feldman, CEO jordan@rightwayhealthc are. com 55 Hudson Yards, Floor 29 New York, NY 10001 rightwayhealthcare.com with a copy (which will not constitute notice) to: Gibson, Dunn a Crutcher LLP 200 Park Avenue New York, NY 10166 Attn: Stefan dePozsgay stefandepozsgay@gibson dun. com or at such other address for a Party as shall be specified by like notice. Any such notice shall be deemed given (i) on the date of delivery, if delivered personally; (ii) on the date of transmission if delivered via email transmission, with confirmation by return email of receipt by recipient, or if no such confirmation is received, then on the next business day of the recipient after such transmission; (iii) on the business day after the date of delivery to a reputable overnight courier; or (iv) three business days after being mailed by registered or certified mail. 5.3. Dispute Resolution; Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to conflicts of law principles. 5.4. Force Majeure. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligation) when and to the extent such failure or delay is caused by any circumstances beyond a Party's reasonable control including without limitation acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation (any such circumstance, a "Force Majeure Event"). Either Party may terminate this Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of thirty (30) days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. 5.5. Other. No amendment, modification, or alteration of the terms or provisions of this Agreement shall be binding unless the same shall be in writing and duly executed by Customer and Vendor; except that any of the terms or provisions of this Agreement may be waived in writing (including electronically) at any time by the Party that is entitled to the benefits of such waived terms. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provision hereof. No delay on the part of any Party in exercising any right hereunder shall operate as a waiver thereof.