AGREEMENT FOR EXTENDEDCARE CLOUD SERVICES

This Agreement for ExtendedCare Cloud Services (“Agreement”) governs all Order Forms entered into between Extended Care LLC, a Delaware limited liability company having a principal place of business at 222 S. Riverside Plaza, Suite 2800 Chicago, IL 60606, United States (“ExtendedCare”) and Customer (defined below). By using the Services (defined below) Customer agrees to be bound by the terms of this Agreement. If there is a separate signed Agreement between ExtendedCare and Customer concerning the subject matter of this Agreement, that separate agreement will govern the parties’ relationship instead of this Agreement.

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1.  Definitions

• 1.1. “Affiliate” means, as to any party, an entity that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such party.

• 1.2. “Authorized Reseller” means a reseller authorized by ExtendedCare to resell the Services.

• 1.3. “Cisco Webex” means each of Cisco Webex and Cisco Webex Teams.

• 1.4.  “Content” means the Customer or patient video and other information transmitted, displayed, uploaded or downloaded using the Services.

• 1.5. “Customer” means the entity that is a party to this Agreement with ExtendedCare.

• 1.6. “Documentation” means all user and admin guides made available by ExtendedCare that describe the technical, functional, operational or performance capabilities of the Services.

• 1.7.  “Order Form” means an order form, schedule, or other document (including an online registration page, online order form, or online “clickwrap”) entered into or accepted by Customer, or a purchase order issued by Customer (whether to ExtendedCare or an Authorized Reseller) and accepted by ExtendedCare, and that sets forth one or more Services being provided by ExtendedCare to Customer and specific terms applicable to such Services.

• 1.8.  “Services” means ExtendedCare’s cloud-based telehealth solution, currently known as Virtual Care Room (VCR), providing multi-party video visits, and other services as may be described on an Order Form.

• 1.9. “Users” means individual end users of the Services, including doctors, other healthcare personnel and administrative staff, patients and their representatives, third party contractors and any other users authorized to use the Services by Customer.

2. ExtendedCare Services

• 2.1. Framework. Customer and ExtendedCare may enter into one or more Order Forms under the terms of this Agreement. Each Order Form is incorporated into this Agreement by this reference. An Order Form will not modify this Agreement unless the Order Form expresses a clear intent to modify its terms.

• 2.2. Services. ExtendedCare will provide access to the Services for the benefit of Customer pursuant to the Agreement and each Order Form.

• 2.3. On-Boarding. Customer’s cooperation is required for ExtendedCare to efficiently and effectively onboard the Services. ExtendedCare will have no liability for any delays, deficiencies or failures that occur in the performance of onboarding of the Services attributable to unanticipated Customer requests, complications with Customer’s or its Users’ systems and equipment (including mobile devices) or third party providers (including Cisco Webex), Customer’s failure to cooperate and to comply with its obligations under this Agreement or otherwise due to Customer’s breach of the Agreement.

• 2.4. ExtendedCare Acceptable Use Policy. Neither Customer nor Users may use Services (a) in a way prohibited by law, regulation, governmental order or decree; (b) to violate the rights of others; (c) to try to gain unauthorized access to or disrupt any service, device, data, account or network; (d) to spam or distribute malware; (e) in a way that could harm the Services or impair anyone else’s use of it; (f) in a manner inconsistent with the Documentation; or (g) in any application or situation where failure of the Services could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage (collectively, the “AUP”).

• 2.5. Accounts, Password, and Security. ExtendedCare will issue a reasonable number of admin accounts for accessing the Services (“Accounts”), including usernames and passwords to access such accounts (“Credentials”). Customer’s employees, contractors and other persons authorized by Customer to use the Services may access the Accounts to use the Services in accordance with this Agreement and on behalf of Customer. Customer will be responsible for any other activity by its Users. Customer agrees to notify ExtendedCare promptly of any unauthorized use of its Credentials or Accounts or any other suspected breach of security relating to the Services or if it becomes aware of a breach of the AUP.

• 2.6. Integrations. If separately agreed by ExtendedCare, ExtendedCare may provide additional Services with respect to integrations with electronic health records or electronic medical records systems. In addition, ExtendedCare may make access points available to end users via desktop web browsers, mobile applications through the Apple App Store and Google Play, and Cisco collaboration end points, each as described in the Documentation.

• 2.7. Cisco Webex. The Services are deployed as an integration with Cisco Webex. Customer is required to obtain its own license to Cisco Webex to use the Services. ExtendedCare is not responsible for failures of the Services due to Cisco Webex, or any related software development kits, or for Customer’s failure to obtain an appropriate license to any of the foregoing.

• 2.8. System Requirements. Customer has sole responsibility for ordering, securing, installing and ensuring proper operation of Internet access and connectivity, equipment, software (including Cisco Webex) and services required to enable Customer to receive the Services. Third party fees may apply. The performance of these may affect Customer’s use of the Services, which are not the responsibility of ExtendedCare.

• 2.9. Changes to the Services. ExtendedCare may modify the Services by changing, adding or removing features, functionality, capabilities and/or services from time to time. If in ExtendedCare’s commercially reasonable judgment any such modification is reasonably expected to materially and adversely affect the Services, ExtendedCare will use reasonable efforts to provide at least thirty (30) days’ advance written notice to Customer of such material modification.

• 2.10. Customer Responsibilities. Customer will provide ExtendedCare with all information and cooperation that ExtendedCare reasonably requests as necessary, appropriate or desirable in performing the Services. Customer acknowledges that ExtendedCare’s performance may be dependent on Customer’s performance of its responsibilities and on timely decisions and approvals by Customer. ExtendedCare’s failure to perform will be excused to the extent its non-performance is caused by Customer. ExtendedCare will be entitled to rely upon the accuracy and completeness of information provided by, and upon the decisions and approvals of, Customer.

3. Security and Support

• 3.1. Content Security. Each party agrees to apply reasonable technical, organizational and administrative security measures to keep Content protected in accordance with industry standards. Each party will notify the other party if it becomes aware of unauthorized access to Content. ExtendedCare does not assume any responsibility for retention of Content.

• 3.2.  Support. ExtendedCare will provide support as provided in Exhibit A (Availability and Support).

4.  Proprietary Rights

• 4.1.  Ownership of Services. The Services, and all components thereof including any know-how, methodologies, processes, data, and information, including usage data, statistics and analytics, are and will remain the property of ExtendedCare.

• 4.2. Content. Customer retains all rights to the Content. ExtendedCare may use, modify, reproduce and distribute the Content in order to administer and improve the Services. Customer is responsible for obtaining, and for bearing all costs, obligations and liabilities associated with, any licenses, releases or waivers related to the Content required by any third party or any act or regulation of any government, and any necessary rebroadcast or retransmission rights or permissions, including ExtendedCare’s use of such Content for purposes under this Agreement.

• 4.3. Limited Rights. For the periods of Services prescribed by an Order Form, ExtendedCare grants to Customer a limited right to access the Services solely for Customer’s own internal business use in receiving the Services in accordance with the terms and conditions of this Agreement.  Customer may extend use of the Services to Customer Affiliates. Customer will remain responsible for compliance with the terms of this Agreement by its Affiliates. Any usage limitations will apply to Customer and its Affiliates collectively.

• 4.4. Restrictions. Customer may access and use the Services solely as permitted and required under the Agreement. Customer will not, except to the extent permitted by applicable law: (a) resell, license, lease, time-share, or otherwise transfer or distribute any of part of the Services, (b) reverse engineer, decompile, or disassemble any part of the Services, (c) modify, copy, or create derivative works of the Services, (d) use the Services to build a competitive product or service, (e) remove or destroy any proprietary marking, legends, notices, or license documents placed upon or contained with or within any portion of the Services, or (f) authorize or permit any third-party to do any of the acts described in (a) through (e). ExtendedCare reserves all rights not expressly granted hereunder.

5.  Representations and Warranties; Disclaimer

• 5.1. General Compliance with Laws. In its performance under this Agreement, each party will comply with federal, and local laws and regulations that pertain to each party’s operation of its business and specific industry.

• 5.2. Laws Applicable to the Content. Customer is solely responsible for the Content and for compliance with all laws pertaining to the Content. Recording functionality is provided by Cisco Webex. Customer is responsible for compliance with all laws pertaining to the recording of Content.

• 5.3. ExtendedCare’s Warranties. ExtendedCare warrants to Customer that the Services will perform substantially in accordance with the Documentation for such Services. This limited warranty will be void if: (a) the Services have been modified or altered by anyone other than ExtendedCare or ExtendedCare’s subcontractors or Affiliates, without ExtendedCare’s express, prior written approval; or (b) the Services are used in violation of this Agreement. ExtendedCare’s sole obligation and Customer’s sole and exclusive remedy if any of the Services fail to meet the foregoing warranty will be as set forth in Exhibit A (Availability and Support).

• 5.4. Warranty Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, (a) ALL SERVICES HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, (b) USE OF THE SERVICES IS AT CUSTOMER’S AND ITS USERS’ OWN RISK AND (c) EXTENDEDCARE DOES NOT (i) MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, (ii) WARRANT THAT THE SERVICES WILL PERFORM AT A PARTICULAR SPEED, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, (iii) GUARANTEE THAT ITS PROCEDURES AND SERVICES WILL PREVENT LOSS, ALTERATIONS OR UNAUTHORIZED ACCESS CONTENT DISTRIBUTED OR DELIVERED THROUGH ANY FACILITY EMPLOYED IN THE DELIVERY OF THE SERVICES OR IN THE PERFORMANCE OF THIS AGREEMENT; OR (iv) MAKE ANY ASSERTIONS ABOUT THE PERFORMANCE OF CISCO WEBEX. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EXTENDEDCARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. UNDER NO CIRCUMSTANCES WILL EXTENDEDCARE BE LIABLE IN ANY WAY FOR ANY (A) CONTENT, (B) ERRORS OR OMISSIONS IN THE CONTENT, OR (C) RECORDING OF THE CONTENT.

6. Limitation of Liability and EXCLUSIONS

• 6.1. INDIRECT DAMAGES WAIVER. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

• 6.2. DAMAGES CAP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EXTENDEDCARE’S AGGREGATE LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, EXCEED THE AGGREGATE AMOUNT ACTUALLY RECEIVED BY EXTENDEDCARE FOR THE SERVICES GIVING RISE TO THE CLAIM(S) IN THE TWELVE (12) MONTHS BEFORE THE FIRST CAUSE OF ACTION AROSE.

• 6.3. EXCLUSIONS. THE LIMITATIONS AND EXCLUSIONS ON LIABILITY SET FORTH IN SECTIONS 6.1 AND 6.2 WILL NOT APPLY TO: (A) BREACHES OF CONFIDENTIALITY, OR (B) INDEMNIFICATION OBLIGATIONS.

7. Price, Invoicing and Payment

• 7.1. Prices and Payment. Subject to Section 7.5, during the term of this Agreement, Customer will pay all applicable charges for the Services in accordance with prices set forth in the applicable Order Form, or if not in the Order Form then in ExtendedCare’s then-current price list.  Unless otherwise indicated on the Order Form, fees for the Services are invoiced in advance for the periods of Services prescribed by the Order Form. Usage of the Services in excess of what is permitted in an Order Form may result in additional fees.

• 7.2. Concurrent Usage of Virtual Care Rooms. Unless otherwise agreed on an Order Form, the fees for the Services are based on the maximum number of virtual care rooms that Customer may use concurrently (i.e. simultaneously) for the periods of Services prescribed by the Order Form. ExtendedCare will provide the system of record for the purpose of determining the number of virtual care rooms used. If at any time the number of concurrently used virtual care rooms exceeds this number, then a surcharge may be imposed.

• 7.3. Payment Terms. Customer will pay all invoices submitted by ExtendedCare within thirty (30) days of the date of the invoice. ExtendedCare reserves the right to impose a late payment charge of one and one half percent (1½%) per month, or the maximum allowed by law, whichever is less, on any invoice, that is not timely paid, until such invoice is paid in full.

• 7.4. Taxes. All prices exclude taxes. Except for taxes based on ExtendedCare’s net income, Customer will pay any applicable sales, use, excise, value added or other taxes, or amounts levied in lieu of such taxes, now or later imposed under the authority of any national, state or local taxing authority, based on sales of the Services to or by Customer. If Customer is required to withhold or deduct any taxes from any payment, then the gross amount payable by Customer to ExtendedCare will be increased so that, after any such deduction or withholding, the net amount received by ExtendedCare will not be less than the amount ExtendedCare would have received had there been no such deduction or withholding.

• 7.5. Purchases Made through Authorized Resellers.  Notwithstanding anything in this Agreement to the contrary, to the extent Customer has purchased Services through an Authorized Reseller, this Section 7.5 applies. Customer will pay all applicable charges directly to the Authorized Reseller under the terms of the agreement between Customer and the Authorized Reseller. However, ExtendedCare reserves the right to bill Customer directly for surcharges, additional fees permitted under this Agreement, and other Services that Customer purchases directly from ExtendedCare. The right to use the Services is expressly conditioned on Customer’s having paid the applicable charges to the Authorized Reseller. Unless otherwise agreed between the parties, the Authorized Reseller will collect and remit applicable taxes based on sales of the Services to Customer. If ExtendedCare provides a credit or refund for any portion of the Services (including Service Credits), ExtendedCare may provide the credit or refund directly to Customer or through the Authorized Reseller. Any Service Credit will be based on the amount paid by Customer to the Authorized Reseller, but only if the Authorized Reseller passes through its proportional share of the Service Credit. If the Authorized Reseller does not pass through its share of the Service Credit, the Service Credit will be based on amounts actually received by ExtendedCare. ExtendedCare will use commercially reasonable efforts to collect Authorized Reseller’s proportional share of the Service Credit.

8. Term and Termination; suspension

• 8.1. Term of Agreement. The Agreement will continue for as long as any Order Form is in effect. Either party may terminate this Agreement for any or no reason upon thirty (30) days’ written notice to the other party if no Order Forms are in effect between the parties at such time.

• 8.2. Term of Order Form. Each Order Form has the term specified therein. Termination of any individual Order Form will not affect any other Order Form in effect between the parties at the time of such termination.

• 8.3. Termination. Either party may terminate the Agreement and/or an affected Order Form immediately upon written notice at any time if the other party is in material breach of any provision of this Agreement or applicable Order Form and has failed to cure that breach within thirty (30) days after written notice from the nonbreaching party.

• 8.4. General Effect of Termination. Upon expiration or termination of the Agreement, each party will (a) delete any of the other party’s Confidential Information from computer storage or any other media including, but not limited to, online and off-line libraries and (b) return to the other party or, at the other party’s option, destroy, all physical copies of any the other party’s Confidential Information. Notwithstanding the foregoing, the receiving party may retain copies of the disclosing party’s Confidential Information (x) as part of archival records (including backup systems) that receiving party keeps in the ordinary course of its business, but only as required by receiving party’s records retention policies, (y) as may be required by law, or (z) if it is relevant to a dispute between the parties.

• 8.5. Suspension. ExtendedCare may suspend Customer’s access to or use of the Services if (a) Customer violates any provision of this Agreement, (b) in ExtendedCare’s reasonable judgment, the Services or any component thereof are about to suffer a threat to security or functionality, (c) ExtendedCare’s or Customer’s use of the Services (i) poses a security risk to the Services or any third party, (ii) risks adversely impacting ExtendedCare’s systems, the Services or the systems or content of any other customer, or (iii) risks subjecting or subjects ExtendedCare or its Affiliates to liability, (d) Customer or  Authorized Reseller is more than ten (10) days delinquent on an undisputed payment obligation for the Services, or (e) any payment dispute remains unresolved after thirty (30) days. ExtendedCare will provide advance notice to Customer of any such suspension in ExtendedCare’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. ExtendedCare will use reasonable efforts to re-establish the affected Services promptly after ExtendedCare determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured.

• 8.6. Payments. Any suspension or termination by ExtendedCare will not excuse Customer from Customer’s obligation to make payment(s) under this Agreement for Services rendered.

• 8.7. Survival. Any terms of this Agreement that expressly survive termination or expiration, or by their nature ought to survive termination or expiration, will survive, including but not limited to provisions regarding confidentiality, disclaimers, exclusions and limitation of liability, indemnification, effect of termination, records maintenance and audit, controlling law and jurisdiction, notices and other provisions of interpretation and enforcement.

9. Indemnification.

• 9.1. Indemnification. Each party will defend and indemnify the other party, its Affiliates and its and their directors, officers and employees from and against any third party damage, loss, deficiency, cost, liability and expenses and amounts paid pursuant to court order or in settlement resulting from or arising out of any claim, suit action or proceeding (each a “Claim”) made or brought by a third party against any of the indemnified parties in connection with: (a) in the case of Customer as the indemnifying party, a Claim (i) arising from or relating to a violation of the AUP, or (ii) that the Content infringes on the intellectual property or other rights of any third party or violates applicable law; and (b) in the case of ExtendedCare as the indemnifying party, a Claim that any authorized use of the Services infringes on the U.S. patent, copyright, or trade secret rights of any third party.

• 9.2. Infringement Exclusions. A party’s defense and indemnity obligations will not apply to infringement Claims, however, to the extent the infringement Claim relates to or arises from: (a) unauthorized modification of the allegedly infringing article; (b) failure to use modifications applicable to the allegedly infringing article made available by the indemnifying party; (c) use of the allegedly infringing article in combination with any product, technology, or information not provided by the indemnifying party; or (d) the indemnified party’s breach of the Agreement.

• 9.3. Indemnification Limitations. The indemnification obligations will be subject to the indemnified party providing the indemnifying party with prompt written notice of the Claim, the indemnified party giving the indemnifying party sole control and authority with respect to the defense or settlement of the Claim, and the indemnified party reasonably cooperating (at the indemnifying party’s expense) with the indemnifying party in the defense of the Claim. The indemnifying party will not enter any settlement that imposes liability or restrictions on the indemnified party (other than indemnified losses) without the prior written approval of the indemnified party.

• 9.4. Entire Obligation. The provisions of this Section 9 set forth the entire obligation of each of the parties with respect to any third party claim of intellectual property infringement.

10. Confidential Information

• 10.1. Definition. “Confidential Information” means information that (a) a party designates as confidential, or (b) under the circumstances surrounding disclosure, a reasonable person would regard as confidential. Confidential Information will not include information that: (x) is in or enters the public domain without breach of this Agreement; (y) the receiving party receives from a third party who is entitled to disclose such information to receiving party without restriction on disclosure and without breach of a nondisclosure obligation; or (z) the receiving party knew prior to receiving such information from the disclosing party or develops independently without reference to the disclosing party’s Confidential Information.

• 10.2. Obligations. The receiving party will use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither party will use the Confidential Information of the other party for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose the Confidential Information of the other party, without the prior written consent of the other party, except: (a) to the party’s and its Affiliates’ employees, officers, agents, professional advisors and counsel who have a legitimate need to know and are subject to obligations of confidentiality at least as restrictive as those contained herein; and (b) to the extent disclosure is required by law. If a party receives legal process that demands disclosure of the other party’s Confidential Information, such party will give sufficient notice to the other party to enable it to challenge the demand.

11. General

• 11.1. Notices. Notices under this Agreement must be in writing and must be sent to the intended recipient by prepaid registered letter or commercial courier (e.g., UPS), at its address specified by the party, or by email where such method of notice is specified, as may be changed by a party upon notice. Notices will be effective on the date received. Notices to Customer may also be posted on the website for the Services or by e-mail (to the address listed in Customer’s account contact information). Electronic notice will be effective as of the date of posting (for notice on the website) or as of the sent date (for e-mail notice). Physical notices to Customer will be sent to the physical address listed in Customer’s account contact information. Notices will be sent to ExtendedCare at the following address, provided ExtendedCare may change its address for purposes of this Section 11.1, which change of address notice will be effective on receipt by Customer:To ExtendedCare:Attention: Legal Department
  ExtendedCare LLC
  222 S. Riverside Plaza
  Suite 2800
  Chicago, IL 60606

• 11.2. Controlling Law and Jurisdiction. This Agreement and any action related to it (including actions for breach of confidentiality) are governed, controlled, interpreted and defined by and under the laws of the State of Illinois and the United States, without regard to conflict of law provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement are the state and federal courts located in Cook County, Illinois and each of the parties submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action.

• 11.3. Assignment. No party will assign any rights under this Agreement (including by operation of law or otherwise) without the prior written consent of the other party, which consent will not be unreasonably withheld. Despite the preceding sentence, this Agreement may be assigned in its entirety by a party, without obtaining the consent of the other party, to an entity into which the assigning party is merged, or to an acquirer of all or substantially all of the business or assets of the business unit of the assigning party to which this Agreement pertains, or as part of a business restructuring, sale of stock, or other recapitalization or reorganization. Any purported assignment of rights or transfer of obligations in violation of this paragraph is void.

• 11.4. Entire Agreement. This Agreement constitutes the entire and final agreement between the parties with respect to the subject matter hereof and merges all prior and contemporaneous communications.

• 11.5. Modifications. ExtendedCare may change the terms and conditions of this Agreement from time to time (“Modifications”) in its discretion. ExtendedCare will give Customer notice of the changes by posting an updated version of this Agreement online or by emailing Customer. Modifications will be effective as of the date ExtendedCare posts them or otherwise notifies Customer of them, unless ExtendedCare specifies a different effective date when it makes the Modifications. Customer is responsible for checking for updates to this Agreement. If Customer determines in its reasonable discretion that a Modification will have a material, adverse effect on Customer, then for a period of ten (10) business days after the date of notice to Customer (the “Termination Window”), Customer may, as its sole and exclusive remedy for any Modification, terminate without penalty any affected Order Form upon written notice to ExtendedCare. By continuing to access or use the Services after such Termination Window, Customer agrees to be bound by such Modification.

• 11.6. Export Control. This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States or other countries that may be imposed on the parties from time to time. No party will export, directly or indirectly, any technical information acquired from the other party under this Agreement or any products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with applicable law.

• 11.7. Amendments. Customer may not amend this Agreement without ExtendedCare’s prior written consent.

 

Miscellaneous. If for any reason a court of competent jurisdiction finds any term of this Agreement to be unenforceable, that term will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. No waiver of any breach of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach, and no waiver will be effective unless in writing and signed by the waiving party. No party will be liable for any delay or failure to perform its obligations hereunder, other than a payment obligation, due to any cause beyond its reasonable control. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against any party, including by reason of a party’s drafting or preparing the Agreement. Unless otherwise expressly provided, no provision of this Agreement is intended or will be construed to confer upon or give to any person or entity other than ExtendedCare and Customer any rights, remedies or other benefits under or by reason of this Agreement. Nothing in this Agreement is to be construed as creating an agency, partnership, joint venture, franchise, or employment relationship between the parties.