Master License Subscription Agreement

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v1.1March 18, 2024This URL

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR PROGRAM AND SERVICES. BY ENTERING INTO THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING THOSE ADDITIONAL TERMS AND CONDITIONS AND POLICIES REFERENCED HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PROGRAM AND SERVICES.

Definitions

  • “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
  • “Agreement” means this Master License Subscription Agreement and the terms contained herein.
  • “Authorized User” means an individual who is authorized by You to use the Program and Services, for whom You have ordered the Program, and to whom You (or We at Your request) have supplied a user identification and password. Authorized Users may include, for example, Your employees, consultants, contractors and agents.
  • “End User” means an individual whose device contacts Your HHMC platform. End Users may include, for example, individuals who enter Your location with their phone or tablets and those who log onto the platform, or those who interact with your platform via web or mobile device virtually.
  • “End User Data” means the electronic data and information (in any format or media) entered, submitted by or otherwise made accessible to Us by an End User or an End User’s device that is collected and processed by Us in connection with provision of the Program. For the avoidance of doubt, Your Data does not include any Public Data.
  • “Fees” include Program Subscription Fees, Credit Card Processing Fees, Service Fees, Sales Commissions, and other fees as specified in the Program Services Order Form or this Agreement.
  • “Licensee” means the entity entering into this Agreement and its representatives.
  • “Licensee Locations” means the unique business registered address location(s) specified in the Program Services Order Form for which the Purchased Program and Services will be used.
  • “Marketplace Transactions” means the purchases, refunds, and other transactions on the platform, which are subject to Credit Card Processing Fees, Service Fees, and other applicable taxes, fees, etc. facilitated by the Merchant of Record.
  • “Merchant of Record” or “MoR”, for the Purchased Program and Services is HHMC.
  • “Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through your account with a third party.
  • “Personal Information” means information provided by an End User that does or can identify a specific natural person or by or from which a specific natural person may be identified, contacted, or located.
  • “Program Administrator” means the duly authorized individual(s) of Licensee to make decisions on behalf of Licensee. Platform Administrators shall be the individual that signed this Agreement on behalf of Licensee, unless otherwise specified in the applicable Program Services Order Form.
  • “Setup Down Payment” means the upfront amount paid by the Licensee to HHMC to set up the Purchased Program and Services, including provisioning and configuring Licensee’s platform, marketing funnel, allocation of onboarding resources, to set up the Purchased Program and Services. 
  • “Program Subscription” means Your subscription to the Purchased Program and Services through the pricing plan for Your access and use of the Program and Services as specified in the Program Services Order Form.
  • “Program Subscription Fee” means the fee payable by You to Us for access to the Purchased Program and Services under these terms and any relevant Program Services Order Forms.
  • “Portal Terms of Use” means the terms of use of the online training center for the Program and Services.
  • “Public Data” shall mean data (in any format or media) that is generally available and in the public domain (through no act or omission of a party), and that is not proprietary to, or subject to exclusive ownership by, any party.
  • “Purchased Program and Services” means Our products and services and related products and marketing services that You subscribe to, and/or any new services or features that We may introduce as a service to which You may subscribe to and any updates to the services, including individually and collectively, any software, mobile applications, or related products or services. These Purchased Program and Services include but are not limited to End User engagement offerings which assist in rewarding an End User for visiting, educating End Users on treatments, helping to drive referrals, facilitating the purchasing and financing of End User treatments, and assisting with automating End User retention, among others.
  • “Purchased Service Data” means all electronic data, information, text, messages or other materials, including of Licensee uses and End Users, submitted to the Purchased Program and Services in connection with Your access and use of the Purchased Program and Services.
  • “Healthy Habits Management Company,” “HHMC,” “We,” “Us” “Company” or “Our” means Healthy Habits Management Company, Inc., an Idaho Corporation, and its Affiliates.
  • “HHMC Privacy Policy” means the privacy policy for HHMC available at https://healthyhabitsmc.com/privacy-policy
  • “HHMC Business Associate Addendum” means the Business Associate Addendum for HHMC available at https://healthyhabitsmc.com/business-associate-addendum.
  • “Program Service Order Form” means an order form referencing this Agreement and executed or approved by You and Us with respect to Your Program Subscription, which may detail, among other things, the associated Fees and other details of the Program Subscription.
  • “You,” “Your,” or “Client” means the Licensee.
  • “Your Data” means electronic data and information submitted by or for You to the Program and Services or collected and processed by or for You using the Program and Services.

II. Right to Use the Purchased Program and Services.

  1. Provision of Purchased Program and Services. Following Your payment of the Setup Down Payment or other upfront amounts due as specified in the Program Services Order Form, we agree to use commercially reasonable efforts to make the Purchased Program and Services available to You pursuant to this Agreement and the applicable Program Services Order Form.
  2. Applicability. These terms govern Your right to access and use the Purchased Program and Services during the Term.
  3. Right to Use the Purchased Program and Services. Subject to Your compliance with the terms included herein and solely during the Term, We grant You a non-exclusive, non-transferable, non-assignable (except to the extent expressly permitted in this Agreement), worldwider (subject to applicable law) and revocable right to access and use the Purchased Program and Services that You have subscribed to for Your own internal business purposes.
  4. Program Subscriptions. Unless otherwise provided in the applicable Program Services Order Form, (a) Purchased Program and Services are purchased as subscriptions, (b) additional subscriptions may be added during a subscription term at the same pricing set forth in the Subscription Terms in the Order, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions, as set forth in the Order.
  5. End User Privacy. In connection with the Program and Services, We may collect End User Data or other information about or related to End Users, and We may share certain data regarding End Users with You. You represent and warrant that You will (a) use the End User Data or any derivatives thereof in accordance with all applicable laws, including privacy, data protection, and data security laws, and (b) upon request, You will direct any End User to the full text of the then-current Portal Privacy Policy. You understand that (1) the Portal Privacy Policy may be revised periodically by Us and (2) You are responsible for reviewing the Portal Privacy Policy to check for changes. You acknowledge and agree that You will comply in all respects with the then-current Portal Privacy Policy, and that You are solely responsible for any noncompliance with Your obligations in the Portal Privacy Policy.
  6. End User Terms of Use. Upon request, You agree to direct any End User to the full text of the then-current Portal Terms of Use. You understand that (a) the Portal Terms of Use may be revised periodically by Us in our sole discretion; (b) You are responsible for reviewing the Portal of Use to check for changes; and (c) You agree to abide by the terms of the then-current Portal Terms of Use.
  7. Usage Restrictions. You acknowledge and agree that We have no obligation to monitor or police the content of communications or data of You or End Users, and that We are not responsible for the content of any such communications or transmissions. You will not (a) make the Program and Services available to, or use the Program and Services for the benefit of, anyone other than You or Your Authorized Users, (b) sell, resell, license, sublicense, distribute, rent or lease the Program and Services, or include the Program and Services in a service bureau or outsourcing offering, (c) store or transmit infringing, libelous, or otherwise unlawful or tortious material through the Program and Services, (d) store or transmit material in violation of third-party intellectual property, proprietary, privacy, or similar rights through the Program and Services, (e) store or transmit malicious code through the Program and Services, (f) interfere with or disrupt the integrity or performance of the Program and Services or third-party data contained therein, (g) attempt to gain unauthorized access to the Program and Services or their related systems or networks, (h) permit direct or indirect access to or use of the Program and Services in a way that circumvents a contractual usage limit, (i) copy the Program and Services or any part, feature, function or user interface thereof, (j) frame or mirror any part of the Program and Services, other than framing on Your own intranets or otherwise for Your own internal business purposes, (k) access the Program and Services in order to build a competitive product or service, (l) reverse engineer the Program and Services or any part thereof, (m) modify, translate, or otherwise create derivative works of the Program and Services; (n) allow the removal, alteration, covering, or obscuring of any HHMC Trademarks or Servicemark that appear on the Program and Services, or (o) promote, market, or sell any products or services that are competitive with the Program and Services (p) use the Program and Services at any business locations other than the Licensee Locations.

III. Fees and Payment for Purchased Program and Services.

  1. Fees. You agree to pay all fees specified in the Program Services Order form for the entirety of the Term.
  2. Payment for Program Subscription Fee. You agree to maintain a valid payment method on file for the duration of the Term. We will charge this payment on and on the monthly anniversary day of the Monthly Payment Start Date (e.g., if you signed up on the 17th of a month, you will be charged monthly on the 17th) for the Program Subscription Fee specified in the Program Services Order Form. Payment is made in advance for the following month’s use of the Purchased Program and Services. If you do not maintain an active, valid payment method, if a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, You will be considered in breach of this Agreement and will be subject to the terms outlined in Section 9, ‘Term, Termination, and Suspension’ hereto and You remain responsible for any uncollected amounts.
  3. Payment for Credit Card Processing Fees and Service Fees. For Marketplace Transactions on the platform, Clients will receive the amount charged to the End User, net of the Fees outlined in this Agreement or the Program Services Order Form.
  4. Client Marketplace Transaction Payout Account. All Clients with an Initial Subscription Term beginning after the effective date of this Agreement will be required as a condition of onboarding, to complete a direct deposit form and IRS W9 form to facilitate normal course duties consistent with Our role as Merchant of Record related to Marketplace Transactions, including but not limited to Client payouts, End User refunds and sales tax reversals. You acknowledge that these transactions and adjustments will be processed automatically through the platform as part of the normal course of the Purchased Program and Services throughout the Term. In addition, in the event of nonpayment of the Platform Subscription Fee, amounts may be withheld at Our sole discretion, and Your use of the Purchased Program and Services may be impacted or suspended until such breach is cured. Please refer to Section 9, ‘Term, Termination, and Suspension’. 
  5. For Clients with an Initial Subscription Term beginning before the effective date of this Agreement and without a Marketplace Transaction Payout Account, you shall be paid by the fifteenth (15th) of the following month the Program Subscription Fee is collected by Us and will be invoiced for any refunds or transaction reversals as necessary based on End User.
  6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 3.6, these amounts will be collected from your Program Subscription Fee and Marketplace Transactions unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. As a marketplace facilitator, We are obligated to collect sales tax on taxable transactions on your behalf, and remit these amounts to the applicable U.S. tax jurisdiction. Our Clients in the following jurisdictions are subject to sales tax collection on certain End User transactions: CT, HI, IA, KY, NM, NY, OH. As a result, We may collect sales tax on those transactions to fulfill this obligation based on the type of End User service offered. You may elect to explicitly opt out of this on an item-level basis, however if You choose to do so, You hereby agree to indemnify Us for any sales tax liability arising from this explicit opt out and represent that You will pay the applicable sales tax directly to the jurisdiction. For more information on this topic, please visit this resource: State-by-state guide to marketplace facilitator laws (avalara.com)
  7. Future Functionality. You agree that Your purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.

IV. Proprietary Rights and Licenses.

  1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all of Our right, title and interest in and to the Purchased Program and Services, including all of Our related intellectual property rights. Our intellectual property rights include, without limitation, all rights associated with the Purchased Program and Services and, and the online, web-based applications and platform provided by Us. No rights are granted to You hereunder other than as expressly set forth herein.
  2. License by You to Host Your Data. You grant Us and Our Affiliates a worldwide, limited-term license to host, copy, transmit and display Your Data and End User Data created by or for You using the Purchased Program and Services, as necessary for Us to provide the Purchased Program and Services in accordance with this Agreement. In addition, You grant Us a perpetual, irrevocable right to maintain, access, and use Your Data and End User Data in order to improve Our services and in accordance with the HHMC Privacy Policy, which may be updated from time to time. It is Your obligation to review the HHMC Privacy Policy from time to time to check for changes. All updates to the HHMC Privacy Policy will be effective on the date they are posted without prior notice to You. Without limiting the foregoing, We may (i) disclose Your Data and End User Data to Our service providers to process and supplement End User Data for the purpose of providing the Purchased Program and Services in accordance with this Agreement, (ii) use or disclose End User Data to help our clients learn more about their current and prospective customers, and to assist them in communications and marketing activities; and/or (iii) use or disclose without restriction End User Data that has been de-identified or aggregated for any purpose.
  3. Limits on Your Use and Disclosure of End User Data. End User Data for purposes of competing against Us such as by establishing a competing business venture. In the event you do so, you explicitly waive Section 10 and Section 11 in this agreement and personally consent to jurisdiction of and venue in the State or Federal Courts of Ada County, Idaho. Additionally, you acknowledge that a breach of this Section would damage HHMC in a way that could not be adequately compensated by monetary damages and therefore agree that any breach or threatened breach of this Section may appropriately be restrained by an injunctive order granted by a court of competent jurisdiction. Upon agreement you may be able to receive your customer list including cell phone numbers and other platform data given our “release of data” is signed. We will not use any End User Data for any other purposes than your specific promotional platform unless agreed upon by both parties first.
  4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Program and Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Authorized Users or End Users relating to the operation of the Program and Services.
  5. License by You for Us to Disclose Business Relationship. You grant to Us and Our Affiliates a worldwide, royalty-free license to use any of Your trademarks, brand names, and/or logos for the limited purpose of disclosing that HHMC provides services to You including any marketing materials such as print, media, public relations, and advertising. The license set forth in this Section 4.5 shall be valid only during the period of time in which HHMC provides Program and Services to You and shall expire at the termination of this Agreement.
  6. License to Send Marketing Communications on Behalf of Client. As part of the Purchased Program and Services, We help run promotions for You. You grant us the right to send automated messaging, including by text/SMS and email to End Users as part of the Purchased Program and Services.
  7. Remedies for Infringement Claims Related to the Program and Services. If We receive information about an infringement or misappropriation claim related to the Program and Services, We may in Our discretion and at no cost to You (i) modify the Program and Services so that they no longer infringe or misappropriate, without breaching Our warranties under Section 6, (ii) obtain a license for Your continued use of the Program and Services in accordance with this Agreement, or (iii) terminate Your subscriptions for the Purchased Program and Services upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. Notwithstanding any contrary provision in this Agreement, if We provide any of the remedies set forth in this Section 4.6, You agree that such action satisfies Our obligations under this Agreement, and You are not eligible for further relief.

V. Confidentiality.

  1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as otherwise specifically provided in this Agreement, Your Confidential Information includes Your Data; Our Confidential Information includes the Program and Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, business processes, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements, patents, copyrights, trade secrets or other intellectual property of any kind of nature, plans for future development and new product concepts, contemplated products, research, development, and strategies disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party who rightfully possess the information without confidential or proprietary restrictions, or (iv) was independently developed by the Receiving Party.
  2. Protection of Confidential Information. Except as otherwise specifically provided in this Agreement, each Party covenants and agrees that it will not publish, communicate, divulge, or disclose to any person, firm, or corporation any Confidential Information of any other Party, except as necessary in the performance of the terms of this Agreement. Each Party covenants and agrees that it will not use any Confidential Information of any other Party except as necessary to fulfill its obligations or exercise its rights under this Agreement, and only for such purposes and only for the time that it is necessary to do so. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, service providers and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Liability for damages due to disclosure of the Confidential Information by any such third party shall be with the Party that disclosed the Confidential Information to the third party. Neither party will disclose the terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 5.2.
  3. Compelled Disclosure. In the event that the recipient of Confidential Information is requested or becomes legally compelled to disclose any Confidential Information of the other Party, it is agreed that the Receiving Party will provide the Disclosing Party with prompt written notice of such request(s) to enable the Disclosing Party, at its sole cost and expense, to seek a protective order or take other lawful steps to protect and preserve the confidential nature of the Confidential Information, and the Receiving Party will cooperate with such efforts by the Disclosing Party, including by delaying the disclosure to the extent lawfully permitted to do so to permit the Disclosing Party the opportunity to engage in such efforts. Each Party agrees that it will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information and other information which is being disclosed. Each Party shall immediately notify the other upon discovery of any loss or unauthorized disclosure or other processing of the Confidential Information of the other Party. The Parties agree that to the extent any of their respective regulators have the right to examine the relationship between the Parties described in this Agreement, along with the records associated with such relationship, subject to any privacy requirements applicable to either Party or its Affiliates, or to the individual customers of either Party, the Parties shall (i) provide advance notice of such examination; and (ii) cooperate with each other in making relevant records available.
  4. Return or Destruction. As requested by the Disclosing Party during the Term, upon expiration or any termination of this Agreement, or completion of the obligations of the Receiving Party, as applicable, the Receiving Party shall (a) return or destroy, as the Disclosing Party may direct, and in the manner reasonably directed by the Disclosing Party, all material in any medium that contains, refers to, or relates to the Disclosing Party’s Confidential Information, and (b) retain no copies except one copy solely to the extent, if any, required compliance with record retention requirements under applicable law; provided, however, that no Party will be obligated to erase Confidential Information subject to a license granted herein or contained in an archived computer system backup made in accordance with such Party’s security and/or disaster recovery procedures, provided that such archived copy will (a) eventually be erased or destroyed in the ordinary course of such Party’s data processing procedures and (b) will remain fully subject to the obligations of confidentiality and security stated herein.
  5. Misuse. In the event of any actual or suspected misuse, disclosure or loss of, or inability to account for, any Confidential Information of the Disclosing Party, the Receiving Party promptly shall (a) (and in any event within three business days) notify the Disclosing Party upon becoming aware thereof; (b) furnish to the Disclosing Party full details of the unauthorized possession, use or knowledge, or attempt thereof, and use reasonable efforts to assist the Disclosing Party in investigating or preventing the recurrence of any unauthorized possession, use, or knowledge, or attempt thereof, of Confidential Information; (c) take such actions as may be necessary or reasonably requested by the Disclosing Party to minimize the violation; and (d) cooperate in all reasonable respects with the Disclosing Party to minimize the violation and any damage resulting therefrom. In the event the HHMC deems it necessary to protect its Confidential Information, you explicitly waive the Mediation, Arbitration and Class Waiver Section in this agreement and personally consent to jurisdiction of and venue in the State or Federal Courts of Ada County, Idaho. Additionally, you acknowledge that a breach of this Section would damage HHMC in a way that could not be adequately compensated by monetary damages and therefore agree that any breach or threatened breach of this Section may appropriately be restrained by an injunctive order granted by a court of competent jurisdiction.

VI. Representations, Warranties, Exclusive Remedies and Disclaimers.

  1. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
  2. You warrant that (a) at all times during the term of this Agreement, You shall comply with all applicable federal, state, and local laws, and the terms of this Agreement and (b) Your use of the Program and Services or execution of this Agreement does not and will not conflict with Your obligations to any third parties.
  3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT; IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; CLAIM OF INFRINGEMENT; OR CLAIM IN TORT (WHETHER BASED ON NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY OR OTHER THEORY). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PURCHASED PROGRAM AND SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES.

VII. Indemnification.

  1. You will defend Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, against any claim, demand, suit or proceeding made or brought against Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, by a third party alleging that Your Program and Services provided to anyone referred to by Us, Your care to any End User that subscribed to your services and care through Us, End User data that You accessed from a referral by Us, Your Data, or Your breach of this Agreement, Your or any of Your subcontractor’s access, use, storage, or processing of any PHI or Personal Information or any actual or reasonably suspected unauthorized access to or disclosure, loss or use of, PHI or Personal Information in Your, an End User’s or a subcontractor’s possession or control or arising from Your, an End User’s or a subcontractor’s access or use, or any conduct arising out of Your breach of this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, from any damages, attorney fees and costs finally awarded against Us, our agents, employees, officers, attorneys, shareholders, members, and partners, as a result of, or for any amounts paid by Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, under a court-approved settlement of, a Claim Against Us, provided We promptly give You written notice of the Claim Against Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, (provided that failure to so notify will not remove Your obligation except to the extent You are materially prejudiced thereby). For a Claim Against Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, We control the defense and settlement of the Claim Against Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, and You agree to give Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, all reasonable assistance, at Your expense. You will not settle, compromise, or otherwise enter into any agreement regarding the disposition of any Claim Against Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, without the prior written consent and approval of Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, unless such settlement (a) is solely for a cash payment, (b) requires no admission of liability or wrongdoing on the part of Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, (c) imposes no affirmative obligation on Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, (d) imposes no restriction on Our business, (e) provides that the parties to such settlement shall keep the terms of the settlement confidential, and (f) provides for a full and complete release of Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners. You shall reimburse Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, upon demand for any losses incurred by Us, our agents, employees, officers, attorneys, shareholders, members, and/or partners, that is subject to an indemnification obligation as set forth in this Section 7.2.
  2. Exclusive Remedy. This Section 7 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 7.

VIII. Limitation of Liability.

  1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY LICENSEE HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT APPLY TO: (A) LICENSEE’S RECKLESS OR NEGLIGENT ACTS OR OMISSIONS; (B) LICENSEE’S PAYMENT OBLIGATIONS UNDER SECTION 3 (FEES AND PAYMENT FOR PURCHASED PROGRAM AND SERVICES); (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7; (D) EITHER PARTY’S LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5; OR (E) EITHER PARTY’S LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY.
  2. Exclusion of Consequential and Related Damages. EXCEPT FOR (A) LICENSEE’S RECKLESS OR NEGLIGENT ACTS OF OMISSIONS; (B) LICENSEE’S PAYMENT OBLIGATIONS UNDER SECTION 3; (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7; (D) EITHER PARTY’S LIABILITY FOR ANY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5; OR (E) EITHER PARTY’S LIABILITY FOR ITS INFRINGEMENT OR MISAPPROPRIATION OF ANY PROPRIETARY RIGHTS OF THE OTHER PARTY, NEITHER PARTY WILL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

IX. Term, Termination, and Suspension.

  1. Unless otherwise contained in a Program Services Order Form, a Program Subscription is valid for a period of three (3) months from the Monthly Payment Start Date set forth in a Program Services Order Form (“Initial Subscription Term”) and shall automatically renew month to month (“Renewal Subscription Term”) unless terminated earlier by either Party in accordance with this Agreement. For the purposes of this Agreement, “Term” shall mean the Initial Subscription Term and any Renewal Subscription Term(s).
  2. Unless otherwise contained in a Program Services Order Form, to discontinue renewal of or otherwise modify a Program Subscription, either Party must notify the other Party in writing thirty (30) days prior to the expiration of the subsisting Term. You may terminate a Subscription at any time after the Initial Subscription Term by submitting a request in writing from an approved Platform Administrator and ceasing all use of the Program and Services (including those provided to End Users). For avoidance of doubt, such discontinuation or modification will not have any effect on the subsisting Term and the associated payment obligations. Additionally, for avoidance of doubt, a request from any Client representative other than an approved Platform Administrator will not be approved, and attempts will be made by Company to get in contact with a Platform Administrator to verify and approve the request. If no contact is made with a Platform Administrator, the request will not be approved.
  3. Either Party may terminate the relevant Subscription(s) or this Agreement for the other Party’s material breach of this Agreement where such material breach has not been cured within thirty (30) days of notice by the aggrieved Party to the defaulting Party. Where the aggrieved Party reasonably believes a material breach cannot be cured, this Agreement may be terminated with immediate effect.
  4. Notwithstanding anything contained herein, either Party may terminate this Agreement without notice if the other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies which are dismissed within sixty (60) days), or has a receiver or trustee appointed for substantially all of its property.
  5. In the event of Your actual or threatened breach of this Agreement, including any suspected unauthorized activity or non-payment of Program Subscription Fees, We have the right to suspend all or part of Your Subscription(s). You agree to cooperate with Us in any investigation into any unauthorized activity and where Your breach remains uncured for fifteen (15) days following written notice, We reserve the right to terminate the Program Subscription and/or this Agreement with immediate effect.
  6. Remaining Program Subscription Fees. Unless waived by Us. If this Agreement is terminated for any reason (including but not limited to nonpayment or other default) before the conclusion of Term, You agree to pay Us the remainder of the amounts due under the Program Services Order Form. 
  7. Surviving Provisions. The following provisions shall survive termination of this Agreement: Sections 3 (Fees and Payment for Purchased Program and Services), 4 (Proprietary Rights and Licenses), 5 (Confidentiality), 6 (Representations, Warranties, Exclusive Remedies and Disclaimers), 7 (Indemnification), 8 (Limitation of Liability), this 9.7 (Surviving Provisions), 10 (Notices, Governing Law and Jurisdiction), 11 (Mediation, Arbitration and Class Action Waiver), 12 (General Provisions), and 13 (Data and Privacy).
  8. Program Subscription Fee Adjustments. We reserve the right to adjust the Program Subscription Fee for the subsequent Renewal Subscription Term and will provide You with a thirty (30) day notice preceding the end of the prior Subscription Term.

X. Notices, Governing Law and Jurisdiction.

  1. Notices. All notices, permissions, approvals, and other communications which are required or permitted under this Agreement shall be in writing and shall be deemed to have been given upon: (i) the day of personal delivery, (ii) the third business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the Licensee Billing Info contact on the Order. All other notices shall be addressed respectively (a) to HHMC at the contact information on the Program Services Order From under Licensor and (b) to You at the contact information on the Program Services Order Form under Licensee.
  2. Governing Law and Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of Idaho without regard to its conflict of laws rules. Except for matters which must be arbitrated in accordance with Section 11, the parties specifically consent and agree that the courts of the State of Idaho and/or the Federal Courts located in the State of Idaho will have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings. Additionally, subject to the limitation of liability set forth in Section 8, the party that loses any such proceeding will pay all costs and expenses incurred by the other party(s) in connection therewith, including all attorneys’ and other professional fees and expenses. Exclusive venue for any litigation shall be in the state courts of Ada County, Idaho or in the United States District Court for the District of Idaho. The Parties to this agreement waive any personal jurisdiction or venue (including, without limitation, a challenge based on inconvenience) argument or issue with regards to suits in the aforementioned courts and personally consents to the jurisdiction of the aforementioned courts.

XI. Mediation, Arbitration and Class Action Waiver.

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

  1. Initial Dispute Resolution. Most disputes can be resolved without resorting to arbitration. If You have any dispute with Us, You agree that before taking any formal action, You will contact Us at Support@healthyhabitsmc.com, and provide a brief, written description of the dispute and Your contact information. The parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with one another, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration. If such good faith negotiations cannot resolve the dispute within thirty (30) days, such dispute shall be submitted to a mutually agreed upon mediator in Boise, Idaho. Mediation shall be a condition precedent to either party initiating a lawsuit or arbitration except in the event HHMC, Inc. is seeking injunctive relief.
  2. Binding Arbitration. Except for the collection of fees due under this Agreement or any Service Order(s) as described in Section 3 above or as provided in Section 11.4, if we cannot resolve a dispute informally or through mediation, any dispute will be resolved only by binding arbitration in Boise, Idaho, or another location that we have both agreed to, and not in courts of general jurisdiction. The arbitration will be conducted under the rules of JAMS that are in effect at the time the arbitration is initiated (referred to as the “JAMS Rules”) and under the rules set forth in this Agreement. If there is a conflict between JAMS Rules and the rules set forth in this Agreement, the rules set forth in this Agreement will govern. ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. You may, in arbitration, seek any and all remedies otherwise available to You pursuant to Idaho law.
  3. If You decide to initiate arbitration on behalf of the company or legal entity You represent, You will be required to pay the arbitration initiation fee as well as any additional deposit required by JAMS to initiate Your arbitration. You also agree to pay the costs of the arbitration proceeding. Other fees, such as attorney’s fees and expenses of travel to the arbitration, will be paid in accordance with JAMS Rules. To start an arbitration, You or We must do the following things:
  4. Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to Your use of the Program and Services and the interpretation, applicability, enforceability, or formation of this Agreement including but not limited to any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
  5. Exceptions. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Further, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction or HHMC may seek injunctive relief to enforce the terms of this Agreement in a court of competent jurisdiction pursuant to the venue provisions in Section 10.
  6. Class Action Waiver. Both parties agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither You nor We can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). Furthermore, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Clients, and cannot be used to decide other disputes with other Clients.

XII. General Provisions.

  1. Export Compliance. The Program and Services and other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Authorized Users to access or use the Program and Services or Content in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
  2. Anti-Corruption. Where anti-corruption laws are applicable, You acknowledge that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify us at Support@healthyhabitsmc.com.
  3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Program and Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Program Services Order Form as defined herein) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Program Services Order Form, and (2) this Agreement. Notwithstanding any other provision of this Agreement, in no event shall any terms or conditions in this Agreement or any other document be agreed, accepted, waived or modified via a “Void Contracting Method.” A “Void Contracting Method” is one in which an agreement or acceptance purportedly takes place within or through products or services or an application, website, or portal operated by or for Us through Your action (such as electronic signature, checking a box, or clicking to accept) or inaction, even if You are informed that such action or inaction will constitute agreement or acceptance. Any terms or conditions purportedly accepted or agreed via a Void Contracting Method shall be void and of no legal consequence.
  4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Program Services Order Forms), without the other party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that such party assumes or is otherwise fully bound by all of the obligations of the assigning Party under the Agreement. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
  5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The parties expressly waive any claim that either party is a fiduciary to the other party.
  6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
  7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
  8. Construction. This Agreement has been prepared with the participation of each Party and will not be strictly construed against either Party. Each party acknowledges that it has consulted with or had the opportunity to consult with counsel of its choice, and that in executing this Agreement it has not relied upon any statements, representations or agreements other than those expressly contained herein.
  9. No Third-Party Beneficiaries. No End User nor any other third party, other than as expressly set forth in this Agreement, is a third-party beneficiary to this Agreement (except that the specified indemnified parties are third-party beneficiaries of the indemnification and defense provisions).
  10. Force Majeure. If the performance of this Agreement or any obligations hereunder is prevented or interfered with by reason of any force majeure act or condition beyond the reasonable control of a Party hereto, that Party upon giving prompt notice to the other Party shall be excused from such performance during such occurrence.
  11. Headings. The headings used in this Agreement are for reference only and do not define, limit, or otherwise affect the meaning of any provisions hereof.
  12. Rewards and Benefits. HHMC is not responsible for the redemption of any reward or benefit provided by You to the End User. You are solely responsible for the redemption of any offer, reward, or benefit to the End User.

XIII. Data and Privacy.

  1. Protection of Your Data. You are responsible for ensuring that You disclose, provide and otherwise make available to Us and our vendors, contractors, and employees any and all protected health information (as defined under HIPAA) (“PHI”) and other Personal Information (including as part of Your Data) in compliance with any and all applicable laws, regulation, rules, orders, decrees, mandates and resolutions regarding the collection, maintenance, use, processing, disclosure, privacy and/or security of Personal Information and/or PHI. You are responsible for complying with all applicable local, state and federal laws and regulations in connection with Your activities related to this Agreement. You, hereby authorize Us to share Your Data, including any PHI and Personal Information contained therein, with any of Our vendors, subcontractors, contractors, or employees to carry out its duties in this Agreement in accordance with applicable law. However, no amount of safeguards, protection or security may be 100% secure and You acknowledge Your Data and End User Data may be compromised. You agree to hold Us harmless of any claims relating to loss or damages resulting from any data breach or loss of protection of Your Data and/or End User Data.
  2. Privacy Policy. The provision of Program and Services is subject to HHMC’s Privacy Policy and by agreeing to this Agreement you are also agreeing to the HHMC Privacy Policy.
  3. Business Associate Addendum. If You are a covered entity under HIPAA, the HHMC Business Associate Addendum is incorporated into this Agreement and the Parties agree to abide by the terms set forth therein. If You are not a covered entity under HIPAA, the HHMC Business Associate Addendum is not incorporated into this Agreement and therefore the terms therein will not be applicable to the Parties.
  4. Data Retention. Following termination or expiration of a Subscription, We will retain Your data for one hundred twenty (120) days from such date of termination or expiration (“Data Retention Period”). Upon the expiration of the Data Retention Period, We will no longer have an obligation to maintain or provide You or End Users access to Service Data. Thereafter, unless required for compliance with applicable laws and regulations, or as necessary to protect, defend or establish Our rights, or defend against potential claims, We reserve the right to destroy all data in Our possession; provided, however, that We may retain Service Data to the extent required for compliance with applicable laws and regulations, or as necessary to protect, defend or establish Our rights, or defend against potential claim. You agree that You are solely responsible for exporting Service Data prior to termination of a Subscription, and if You require Our assistance for exporting Service Data during the Data Retention Period, You may be required to pay a reasonable fee to Us.

Appendix A: Fee Schedule

CategorySubcategoryCostFrequency
Payment Processing Fees*Credit Card Processing Fee2.99% + $0.30Per Transaction
Payment Processing Fees*Financing9.99% + $0.30Per Transaction
Sales CommissionCommission15%Per Transaction

*Note: Payment Processing fees are determined based on payment type used by the End User. Only one fee applies to each transaction depending on the Payment Method selected.

Appendix B: Marketing Services further defined and explained.

Patient Coordinators:  Patient coordinators will reach out to leads, pre-schedule, pre-qualify, and pre-qualify the potential patients, and ensure patients complete paperwork. The patient coordinators will ensure they bring a spouse if needed.

Custom Marketing Funnel:  Custom digital funnel for You. From the initial stages, when someone learns about Your business, becomes a lead, books an appointment, and shows up ready to purchase.

HIPAA Compliant CRM Platform: An “all-in-one” sales & marketing platform built for medical practices. Everything from Email Marketing, SMS Marketing, Call Tracking, Surveys, Booking and appointments, Payment Processors, CRM and opportunities Pipeline. Management, Tracking and Analytics, Chat Widgets, Live Conversations & AI Automation, and Reputation Management.

Facebook, Instagram, and Google Advertising: Including Facebook/Google Ad Account and page setup, pixel integration, API conversions, strategy, copywriting, creative assets, lead generation, retargeting, social proof, brand awareness, and ongoing management & optimization.

Video Sales Letter: A templated outline for a Video Sales Letter (VSL) to effectively combine video, audio, and storytelling elements to create a compelling sales pitch. We utilize visuals such as graphics, animations, live footage, and audio, like voiceovers or music, to engage the viewer. It follows a structured narrative, highlighting a problem or need, introducing the product or service as a solution, and then detailing its benefits and features.

Reporting: We will report the number of scheduled appointment opportunities generated by the patient coordinator; You must track leads, lead status, showups, and sales (closes) into the Our sales tracker. You must join weekly sales training & bi-weekly coaching calls.

Performance Guarantee: You will gross $30,000.00 in 3 months or HHMC will continue marketing services until You do. This performance guarantee to You is only guaranteed if You spend a minimum of $3000.00 per month ($100/day) in ad spend. If You do not spend the required ad spend minimum, then any performance guarantee is null and void.