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ARTICLE 1. DEFINITIONS
1.1.Additional Services has the meaning specified in Section 3.3.
1.2.Additional Services Compensation has the meaning specified in Section 8.2.
1.3.Affiliate means a Person that directly or indirectly controls, is controlled by, or is under common control with, the first Person.For purposes of this definition, “Control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlling” and “Controlled” have meanings correlative to the foregoing.
1.4.Change in Laws means (a) any adoption, rescission or change of Law, or in the judicial or administrative interpretation of any Law by a Governmental Authority, after the Effective Date (excluding any Law relating to net income taxes), which is inconsistent or at variance with any Law in effect on the Effective Date; (b) the imposition after the Effective Date of any requirement for a new governmental authorization; or (c) the imposition after the Effective Date of any condition or requirement for a governmental authorization and which condition or requirement was not required as of the Effective Date affecting the issuance, renewal or extension of any governmental authorizations, that in any such case impacts the Services.
1.5.Claim(s) has the meaning specified in Section 15.1.
1.6.Compensation means, collectively, the Product Procurement and Fulfillment Fee, and applicable Additional Services Compensation.
1.7.Confidential Information has the meaning specified in Section 10.1.
1.8.Designated Territories means, collectively, the Initial Designated Territory and any additional geographic areas added to the scope of this Agreement pursuant to Section 6.2.
1.9.Discloser has the meaning specified in Section 10.1.
1.10.Dispute has the meaning specified in Section 17.1.
1.11.Effective Date has the meaning specified in the preamble to this Agreement.
1.12.Force Majeure means any occurrence, non-occurrence or set of circumstances that is beyond the reasonable control of such Party, is not caused by such Party’s negligence or lack of due diligence and could not have been prevented or mitigated using commercially reasonable efforts.
1.13.Governmental Authority means any federal, state, local, or foreign government or governmental, quasi-governmental, administrative or regulatory authority, agency, body, or entity, including any court or other tribunal.
1.14.Healthcare Laws has the meaning specified in Section 11.1.
1.15.HIPAA has the meaning specified in Section 10.5
1.16.Indemnified Person has the meaning specified in Section 15.1.
1.17.Initial Designated Territory shall be those geographic areas identified and set forth in Exhibit B.
1.18.Initial Term has the meaning specified in Section 2.1.
1.19.Law(s) means (a) and any statute, regulation, rule, order or other requirement of any competent Governmental Authority, (b) the Healthcare Laws, or (c) the enforceable decision of any court interpreting any statute, regulation, rule, order or other requirement of any competent Governmental Authority.
1.20.Lead means a phone call or contact, in any form, including electronic, from a person or entity interested in services from Client, provided, however, that solicitors or existing patients of Client shall not be tallied as a Lead.
1.21.Lead Fee has the meaning specified in Section 8.1.3.
1.22.Licensee has the meaning specified in Section 5.1.
1.23.Licensor has the meaning specified in Section 5.1.
1.24.Marks has the meaning specified in Section 5.1.
1.25.Parties means collectively, Client and R3.
1.26.Party means either Client or R3.
1.27.Person means an individual, corporation, partnership, limited liability company, joint venture, trust, association, or other entity of any kind or nature; or a Governmental Authority.
1.28.Recipient has the meaning specific in Section 10.1.
1.29.Records has the meaning specified in Section 9.1.1.
1.30.Renewal Term has the meaning specified in Section 2.2.
1.31.Required Products has the meaning specified in Section 4.1.1.
1.32.Product(s) means the regenerative medicine products, including amniotic stem cells, bone marrow stem cells, platelet rich plasma, adipose (fat-derived stem cells), placenta derived regenerative products, any other regenerative medicine products that may become commercially available during the Term, and any related kits or supplies required for related procedures.
1.33.Product Procurement and Fulfillment Fee has the meaning set forth in Section 8.1.4.
1.34.Services has the meaning specified in Section 3.1.
1.35.Term has the meaning specified in Section 2.2.
2.1.Initial Term. Subject to the termination rights set forth herein, after the first three month term (RVP), this Agreement shall be effective and shall continue in effect for a period of one year. (the “Initial Term”).
2.2.Renewal Term. The RVP does not renew, but shifts into the Initial Term. Unless either Party gives the other Party notice of non-renewal at least 60 days prior to the end of the Initial Term, this Agreement shall automatically renew for a one-year renewal term (the “Renewal Term,” and together with the Initial Term, the “Term”).
2.3.Change in Laws.The Parties agree that this Agreement shall be subject to (i) amendments in any applicable Laws and (ii) new legislation and/or regulations. Any Change in Laws resulting in any provision of Law that invalidates or otherwise is inconsistent with the terms of this Agreement, that would cause either Party to be in violation of the Law, shall be deemed to have superseded the terms of this Agreement, provided that the Parties shall exercise their good faith efforts to accommodate the terms and intent of this Agreement to the greatest extent possible consistent with the requirements of such Law. If at any time a Party receives a written opinion of counsel that, in the good faith opinion of such counsel, there is a substantial risk that this Agreement, or the conduct either Party contemplated hereunder, does not comply with an applicable Laws, then the Parties will, during a period of no more than twenty (20) days, use good faith efforts to reform this Agreement in such a manner so that it complies with such Laws, and if such compliance may not be had, either Party may terminate the Agreement on no less than ten (10) days written notice.
ARTICLE 3.Description of services
3.1.Services. During the Term, R3 shall provide to Client the regenerative medicine Product procurement assistance, and regenerative medicine operational, technical and marketing services, as described more particularly in Exhibit A (collectively, the “Services”).The Services will include certain one-time deliverables that will be provided at the outset of this Agreement, as well as ongoing monthly deliverables, as specified in Exhibit A. The Products shall be produced at the facilities of, and by, such manufacturers and suppliers as R3 may identify to Client.All manufacturer and supplier facilities shall have required licenses and permits.
3.2.Promotional Materials. While this Agreement remains in effect, R3 may publish papers and make presentations regarding the performance of regenerative medicine in certain medical contexts using data that R3 will collect and maintain hereunder.Client shall have the right to participate in the drafting of papers and presentations regarding Product performance, based on data to be collected and maintained by R3.
3.3.Additional Services. From time to time during the Term, Client may request R3 to perform services in addition to the Services (the “Additional Services”).If R3 agrees to provide such Additional Services, then R3 will provide, or cause to be provided, to Client, an estimate of the cost of, and manner of payment for, the performance of such Additional Services.Upon receipt of such estimate, Client will determine whether to accept the R3 cost estimate for the performance of such Additional Services, and if so, the Parties shall execute a revised Exhibit A to include the Additional Services.
3.4.Independent Medical Judgment.The Client and its physicians shall at all times be free, in their sole discretion, to exercise their professional medical judgment on behalf of their patients.No provision of this Agreement is intended, nor shall it be construed, to permit R3 to affect or influence the professional medical judgment of Client or any of Client’s physicians.To the extent that any act or service required of or permitted to be taken by R3 by any provision of this Agreement may be construed or deemed to constitute the practice of medicine, the ownership or control of a medical practice, or the operation of a medical or health care facility, said provision of this Agreement shall be void ab initio and the performance of said act or service by R3 shall be deemed waived by Client.
ARTICLE 4.Client Obligations
4.1.Client Obligations.During the Term, Client shall:
4.1.1.Order three (3) units of Product each calendar month during the Term of this Agreement (the “Required Products”). The initial two months there will be no minimum applicable;
4.1.2.Notify R3 of its monthly requirements for additional Products (in addition to the Required Products);
4.1.3.To the extent requested by R3, participate in structured data acquisition and research papers;
4.1.4.Contact all patients identified by R3 in the provision of the Services hereunder within one (1) business day following such patient contacting Client;
4.1.5.Schedule initial patient appointments within three (3) business days following such patient contacting Client; and
4.1.6.Provide R3 with patient data regarding treatments, results and such other information as R3 may reasonably request associated with the Client’s use of the Products in its practice.The Parties shall ensure compliance with all applicable Laws addressing the collection, storage, transmission, and any other use of patient data, including, without limitation, ensuring that any subsequent use by R3 of any such data is done in a fashion so as to protect patient confidentiality.
ARTICLE 5.LIMITED TRADEMARK LICENSE
5.1.License.Subject to the terms and conditions of this Agreement, each Party (“Licensor”) grants the other Party (“Licensee”) a limited, non-exclusive, non-transferable,royalty-free right and license to use the Licensor’s trade name and logo and trademarks or service marks (collectively, “Marks”) solely for the purpose of performing the Licensee’s marketing efforts with respect to the Licensor’s products or services as set forth herein, including, without limitation, inclusion of such Marks in Licensee’s related marketing materials and in web links to the Licensor’s website that are placed on the Licensee’s website.
5.2.License Restrictions.Licensee will use Licensor’s Marks in conformance with any trademark usage policy Licensor may communicate in writing to Licensee from time to time, and such use shall at all times be subject to the Licensor’s quality control procedures regarding the Licensor’s Marks. Licensee expressly acknowledges that Licensor may suspend or terminate Licensee’s right to use the Marks if Licensor reasonably determines that such use dilutes, diminishes, tarnishes, blurs, or is otherwise detrimental to the value of Licensor’s Marks. Licensee acknowledges that Licensee’s use of Licensor’s Marks will not create in Licensee, nor will Licensee represent it has, any right, title or interest in or to Licensor’s Marks other than the license granted by Licensor above.Licensee will not challenge the validity of or attempt to register any of Licensor’s Marks, nor will it adopt any derivative or confusingly similar names, brands or marks or create any combination marks with Licensor’s Marks. Licensee acknowledges Licensor’s ownership and exclusive right to use Licensor’s Marks and agrees that all goodwill arising as a result of Licensee’s use of Licensor’s Marks will inure solely to the benefit of Licensor. Any attempted transfer of the License outside of permitted assignments by Licensee is void, invalid, and of no effect.
ARTICLE 6.DESIGNATED TERRITORY/EXCLUSIVITY
6.1.1. Upon payment of the Compensation described in Article 8 herein, R3 shall provide the Products and Services exclusively to Client within the Designated Territory. Client shall obtain the Products and Services (or any comparable service or product offerings) exclusively from R3.
6.1.2.R3 shall be Client’s primary point of contact with respect to Product issues, and Client shall not, unless directed by R3 otherwise, contact directly Product manufacturers or suppliers.Client shall not contract directly with any Product manufacturer or supplier, except as provided in Section 6.2 of this Agreement.
6.2.Designated Territory Expansion.
6.2.1. In the event that Client intends to obtain Products and Services in a geographic area other than the Initial Designated Territory, Client shall notify R3 in advance of such intent, and R3 shall have a first right of refusal to provide the Services (including any procurement of Products by Client) to Client in such new geographic area pursuant to the terms and conditions of this Agreement.
6.2.2. If R3 exercises the right of first refusal, then the Parties shall amend this Agreement to include such new geographic area in the scope of the Designated Territory and to adjust, if at all, the Compensation to be applicable to Products procured, and Services provided, by R3 in such additional geographic area.
ARTICLE 7.WARRANTY/PERFORMANCE STANDARDS
7.1.Performance Warranty. R3 will perform the Services in a professional manner and in material conformance with the standard of care employed by providers of similar services in the applicable Designated Territories.
7.2.Product Procurement Performance Standards. Without limiting the generality of Section 7.1 above, R3 shall provide the Services associated with Product procurement in accordance with the following:
7.2.1.Standard delivery time from receipt of Product requirement notice from Client to delivery of Product at Client’s facility is by overnight carrier (exception will be Saturday pickup for Monday delivery); and
7.2.2.The minimum period from receipt of Product requirement notice from Client to delivery of Product at Client’s facility is twenty four (24) hours; and
7.2.3.Upon request by Client, R3 shall use commercially reasonable efforts, at Client’s cost, to arrange for the delivery of Products in fewer than forty-eight (48) hours.
7.3.Manufacturer Warranties.R3 shall use commercially reasonable efforts to ensure that Products to be purchased by Client include customary product quality warranties and are delivered in accordance with standard industry practices.
7.4.No Implied Warranties.EXCEPT AS PROVIDED IN THIS AGREEMENT, R3 MAKES NO WARRANTIES OR GUARANTEES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, THAT ANY PRODUCTS OR SERVICES PROVIDED HEREUNDER ARE MERCHANTABLE, FIT FOR THEIR INTENDED PURPOSE, FREE FROM DEFECTS OR IN COMPLIANCE WITH ANY EXPRESS REPRESENTATION OR WARRANTY MADE WITH RESPECT TO SUCH ITEM BY ANY VENDOR, SUPPLIER OR OTHER PERSON.
7.5.Exclusive Remedy.In the event R3 fails to provide the Services as warranted in this Article 7, Client shall, as its sole and exclusive remedy, notify R3 of the breach of warranty, and R3 shall arrange and pay for the delivery of replacement Products to Client.Should any of the Products be defective or fail to comply with any representation or warranty made with respect to such Product or to delivery of such Product by any vendor, supplier, or other person, Client agrees that its recourse shall be against such vendor, supplier, or other person and that it shall not seek compensation from, bring suit against, or otherwise attempt to hold R3 responsible for defective or nonconforming Products or for the failure of vendors, suppliers, or other persons to cause to be delivered in a timely fashion conforming Products.
ARTICLE 8. COMPENSATION;PAYMENT
As Compensation for the performance of the Services hereunder, Client shall compensate R3 in accordance with this Article 8.
8.1.Fees.Client shall pay R3:
8.1.1.An initial Startup Fee of $1,750;
8.1.2.A Monthly Fee of $1,200 per calendar month;
8.1.3.A lead generation fee of Seventy-Five and No/100 Dollars ($75) for each Lead as set forth in Exhibit A (“Lead Fee”);
8.1.4.A product procurement and fulfillment fee, as set forth on the Product Procurement Price Sheet, attached as Exhibit C (the “Product Procurement and Fulfillment Fee”).R3 may revise the Product Procurement and Fulfillment Fee from time to time upon 30 days’ notice to Client; provided, however that Client shall pay the Product Procurement and Fulfillment Fee in effect on the day a Product is ordered; plus
8.1.5.Any and all documented third-party costs incurred by R3 with respect to any expedited order fulfillment, e.g., expedited delivery charges.
8.2.Additional Services Compensation.R3’s compensation for the performance of any Additional Services or procurement of any new Product shall be agreed upon and set forth in a written amendment, signed by the Parties, to Article 8 of this Agreement (the “Additional Services Compensation”).
8.3.Weekly Statements and Payment Terms.
8.3.1.Weekly Statements.R3 shall deliver to Client weekly statements showing:
18.104.22.168.the Product Procurement and Fulfillment Fee charged for such week then ending;
22.214.171.124.the Lead Fee charged for such week then ending;
126.96.36.199.any Additional Services Compensation charged for such week then ending, in accordance with the terms of Exhibit A.
8.3.2.Payment.Unless otherwise agreed by the Parties in writing, R3 shall charge the credit card on file with R3 for the Product Procurement and Fulfillment Fee, Lead Fee and/or Additional Services Compensation, as applicable, due to R3 for Products, Services or Additional Services delivered or performed for the week then ending.
ARTICLE 9. RECORDS;AUDITS
9.1.1.Each Party shall such record and information as may be required by applicable Laws (the “Records”) and shall maintain the Records in accordance with good record management practices and with at least the same degree of completeness and care as it maintains for its other similar business interests.
9.1.2.Client shall provide access to the Records and such other information related to patient treatment involving the Products as may be maintained by the Client to R3 at all reasonable times, upon prior written request.
9.2.Aggregate Patient Data.Client acknowledges that R3 may maintain and use aggregated patient data regarding the use and effectiveness of Products delivered to and used by Client in its practice. During the Term and upon prior written request, R3 shall provide Client access to the Client’s aggregated patient data; provided, however, that Client shall not disclose such data or any information containing or derived therefrom, to any third parties without R3’s prior written consent.
ARTICLE 10.confidential information
10.1.Definition. As used herein, “Confidential Information” of a Party means any and all technical or non-technical information related to the past, current or proposed operations, products, technology, services and business of such Party (“Discloser”) that is disclosed (whether orally, visually or through any tangible medium) or otherwise made available in any manner by the Discloser to the other Party (“Recipient”), orto which the Recipient maygain access in the performance of this Agreement, and that the Discloser designates as being confidential prior to or at the time of disclosure to the Recipient.Notwithstanding the foregoing, the Recipient’s duties with respect to the Discloser’s Confidential Information will terminate or not apply to any information that the Recipient can document: (a) is or subsequently becomes (through noimproper action or inaction by the Recipient) generally available to the public; (b) was already in the Recipient’s possession or known by the Recipient prior to receipt from the Discloser; (c) was rightfully disclosed to the Recipient by a third party free of any obligation of confidence; or (d) is independently developed by the Recipient.
10.2.Restrictions on Use and Disclosure.Each Party agrees to hold the other Party’s Confidential Information in strict confidence, and use such care and take suchprecautions to protect such Confidential Information as it employs to protect its own Confidential Information (but in no case less than reasonable precautions).Except as expressly set forth herein, neither Party may disclose the other Party’s Confidential Information or any information derived therefrom to any third party.Each Party agrees not to use the other Party’s Confidential Information for any purpose other than as necessary to fulfill such Party’s obligations or exercise its rights under this Agreement. Each Party will permit access to the Confidential Information of the Discloser only to that Party’s employees and authorized representatives who are bound by obligations of confidentiality substantially similar to, and no less restrictive than, those contained herein.Each Party agrees to take all reasonable steps to ensure that the other Party’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. The Recipient agrees to advise the Discloser promptly if it is aware or suspects that the security of the Discloser’s Confidential Information has or may be compromised in any way.
10.3.Required Disclosure. The restrictions of Section 10.2 will not operate to prevent disclosures of Confidential Information required by any Law or regulation, or in response to a valid order by a court of competent jurisdiction or other governmental authority; provided, however, that the Recipient provides the Discloser with prompt written notice of such pending disclosure, if reasonable under the circumstances, to provide the Discloser with an opportunity (at its own expense) to object to the disclosure, or to seek confidential treatment or other protective measures to preserve, to the extent possible, the confidentiality of the Confidential Information, and will cooperate with Discloser in connection therewith.
10.4.Patient Notification and Consent.To the extent required by applicable Laws, including HIPAA (as defined below), Client shall notify patients of the scope and nature of the patient information Client shall disclose to R3 as contemplated in this Agreement, and Client shall obtain any required patient written consent to such disclosure.
10.5.HIPAA. Notwithstanding anything stated herein to the contrary, each of the Parties agrees that all patients’ individually identifiable health-related information (“Protected Health Information” (PHI) and “Electronic Protected Health Information” (ePHI)) shall be used and disclosed only as permitted by applicable state and federal laws, including without limitation applicable Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 and regulations promulgated thereunder, the final Privacy Rule issued pursuant thereto and the Security Rule issued pursuant thereto (collectively, “HIPAA”), and as otherwise amended by Sections 13400 through 13424 of the Health Information Technology for Economic Clinical Health Act. R3 will execute and comply with such business associate agreements as may be necessary for Client to provide the patient data to R3 in compliance with HIPAA.
10.6.Injunctive Relief. The Recipient acknowledges that the Discloser’s Confidential Information constitutes valuable trade secrets of the Discloser. Each Party acknowledges that any unauthorized use or disclosure of the Confidential Information of the other Party would cause the other Party irreparable harm for which its remedies at law would be inadequate. Accordingly, each Party acknowledges and agrees that if any such unauthorized use or disclosure occurs, the Discloser will be entitled, in addition to any other remedies available to it at law or in equity, to seek the issuance of injunctive or other equitable relief.
10.7.No Rights Granted. Except as otherwise provided in this Agreement, the Recipient acquires no license or other rights to any Confidential Information of the Discloser, including, without limitation, any right that has issued or may issue based upon such Confidential Information. All Confidential Information and materials furnished to the Recipient by the Discloser, and all copies thereof made by the Recipient, will remain the property of the Discloser.
10.8.Rights on Termination.Upon termination of this Agreement, each of the Parties shall return all Confidential Information in its possession to the other, or if such information is not capable of being return, destroy or otherwise permanently delete such information as may reside in its electronic files and systems.
11.1.Compliance with Laws.R3 and Client each hereby covenant that in performing its respective obligations under this Agreement, it will comply in all material respects with all applicable statutes, regulations, rules, orders, ordinances and other Laws of any governmental entity to which this Agreement and the Parties’ obligations under this Agreement are subject with respect to healthcare regulatory matters (including, without limitation, Sections 1128, 1128A and 1128B(b) of the Social Security Act, as amended, 42 U.S.C. §§1320a-7, 1320a-7a and 1320a-7b(b), commonly referred to as the “Medicare and Medicaid Exclusion Statute,” the “Civil Money Penalties Statute,” and the “Federal Anti-Kickback Statute,” respectively, and 31 U.S.C. § 3729, as amended, the statute commonly referred to as the “Federal False Claims Act”) (“Healthcare Laws”). R3 and Client each hereby represent and warrant that, to its best knowledge, no circumstances currently exist which can reasonably be expected to result in a material violation of any Healthcare Law by R3 or Client in connection with, or which can reasonably be expected to affect, its respective performance under this Agreement. R3 and Client each hereby certify that it will not violate the Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)) with respect to its performance under this Agreement.
11.2.Information Regarding Performance.Each Party shall make available to the other Party any information required or reasonably requested by that other Party regarding the performance of the Services and shall be responsible for timely providing that information and for the accuracy and completeness of that information; provided, however, that a Party shall not be liable for not providing any information that is subject to a confidentiality obligation owed by it to a Person other than an Affiliate of it or the other Party.R3 shall not be liable for any impairment of its performance caused by its not receiving information, either timely or at all, or by its receiving inaccurate or incomplete information from Client that is required or reasonably requested by R3 for the proper performance of its obligations hereunder.
11.3.Cooperation.The Parties will use good faith efforts to cooperate with each other in all matters relating to the performance of their respective obligations hereunder.
ARTICLE 12. FORCE MAJEURE
Each Party will be excused from performance and shall not be considered to be in default with respect to any obligation hereunder, except the obligation to pay money in a timely manner, if and to the extent that its failure of, or delay in, performance is due to an event of Force Majeure; provided, that (a) the affected Party must give timely notice of any event or circumstance that it believes is or would reasonably be expected to become an event of Force Majeure, and (b) the affected Party must use reasonable efforts to remove or mitigate the effects of any event of Force Majeure.
ARTICLE 13. DEFAULT;TERMINATION
13.1.Default; Early Termination.
13.1.1.Each Party shall have the right to terminate this Agreement upon the other Party’s breach of any provision of this Agreement, including any breach of its obligations, warranties or covenants hereunder, by providing the other Party with written notice of the breach; provided, however, such termination will only be effective if the breaching Party has not cured or remedied the breach within thirty (30) days after its receipt of the notice.Such termination shall be effective immediately upon service of notice of termination in accordance with this Agreement (subject to any applicable cure periods). In addition to the right to terminate, the non-breaching Party may pursue such rights and remedies available to it under this Agreement, at law, or in equity.
13.1.2.Each Party shall have the right to terminate this Agreement, upon providing five (5) days’ written notice, in the event the other Party should become bankrupt or insolvent, make a general assignment for the benefit of its creditors, or if a receiver should be appointed on account of such Party’s insolvency or inability to meet its obligations under this Agreement. Such termination shall be effective immediately upon service of notice of termination in accordance with this Agreement.
13.1.3.R3 may terminate this Agreement for convenience upon ninety (90) days written notice to Client.
ARTICLE 14. Insurance
14.1.The Parties shall obtain and maintain the following general types of insurance during the Term of this Agreement:
14.1.1.Client Insurance Obligation.Client shall obtain and maintain customary policies and coverage levels of professional liability, workers’ compensation and general liability.
14.1.2.R3 Insurance Obligation.R3 shall maintain customary policies and coverage levels of professional liability, workers’ compensation, and general liability insurance.
15.1.Each Party shall indemnify, defend, and hold the other Party, its directors, officers, employees, and agents (each an “Indemnified Person”) harmless from and against any liability and/or cost (including reasonable attorneys’ fees) relating to any third party claim, suit, or proceeding (collectively “Claim” or “Claims”), arising as a result of or in connection with the indemnifying Party’s breach of any representations or warranties, negligence, or intentional misconduct.
15.2.Each Party’s indemnity obligation shall be limited to the amount of insurance proceeds recovered by such Party as a result of the subject claim.
15.3.An Indemnified Person shall take commercially reasonable steps to mitigate all losses upon becoming aware of any event which could reasonably be expected to give rise thereto, including commercially reasonable steps to avail itself of any defenses, limitations, rights of contribution, actions against third-parties and other rights at law or equity. The Indemnified Person’s commercially reasonable steps shall include (i) the commercially reasonable expenditure of money and taking of commercially reasonable steps to reduce or eliminate any losses for which indemnification would otherwise be due hereunder and (ii) pursuing (or assisting the other Party in pursuing) all available claims under applicable insurance policies.
ARTICLE 16. LIMITATION OF LIABILITY
16.1.Waiver of Damages.R3 SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OR LOST PROFITS, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE AND WHETHER OR NOT ARISING FROM CLIENT’S SOLE, JOINT OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT.
16.2.Cap of Liability.R3’s overall liability to Client hereunder shall not exceed the cost of replacement Products, as applicable.
ARTICLE 17. DISPUTE RESOLUTION
17.1.Except as otherwise provided herein, the Parties agree to attempt to resolve any dispute, controversy or claim (a “Dispute”) arising out of or relating to this Agreement or any breach or alleged breach hereof through an informal process that shall be assigned to an executive officer of each Party. The executive dispute process shall be initiated by a phone conference within five (5) business days of the date of any notice by one Party to the other, which notice shall include sufficient detail of the basis of the dispute. If the executives are unable to resolve the Dispute during such phone conference, then the executives shall meet at a mutually agreeable locationwithin ten (10) business days after such phone conference.
17.2.If the Dispute cannot be resolved by the executive resolution process, each Party will have all rights and remedies available to it under Law or in equity.
17.3.Performance Obligation.The Parties will continue performance under this Agreement pending the resolution of any Dispute.
18.1.Title; Risk of Loss.
18.1.1.Product Title.Title to Product will transfer directly from the manufacturer or supplier of such Product to Client.At no time will R3 have title to the Product or be deemed to be in the chain of custody of the Product.R3 shall not at any time bear the risk with respect to the loss of Products.Products will be shipped to Client directly from the manufacturer or supplier.
18.1.2.Intellectual Property Title.Title to any intellectual property and trade secrets related to the provision of the Products and Services shall at all times remain with R3, except as otherwise provided for in Article 5 of this Agreement.Rights of use to all patient data relating to performance of the Products shall vest in R3; Client’s right to use such data shall be limited to the express uses provided for in this Agreement.
18.2.Representations and Warranties.Each Party represents and warrants to the other Party that:
18.2.1.it has the requisite corporate authority to enter into and perform this Agreement;
18.2.2.its execution, delivery and performance of this Agreement have been duly authorized by all requisite corporate action on its behalf;
18.2.3.this Agreement is enforceable against it; and
18.2.4.it has obtained, or is in the process of obtaining, all consents or approvals of Governmental Authorities and other Persons that are conditions to its entering into this Agreement.
18.3.Publicity.Neither Party will, except as otherwise provided in this Agreement or without the prior written approval of the other Party, (a) advertise or otherwise publicize the existence or terms of this Agreement or any other aspect of the relationship between R3 and Client, or (b) use the other Party’s name or any trademarks belonging to the other Party for any purpose.If, at any time a third party, including any news organization, contacts Client concerning the subject matter of this Agreement or R3, Client will make no comment and will notify promptly R3 of the third party contact.
18.4.Further Assurances.Each Party shall take such actions, upon request of the other Party and in addition to the actions specified in this Agreement, as may be necessary or reasonably appropriate to implement or give effect to this Agreement.
18.5.No Conflict.Client represents that the rights and obligations of Client under this Agreement do not, and during the Term of this Agreement will not, conflict with any other right or obligation provided under any other agreement that Client has with any third party
18.6.Governing Law.This Agreement and performance hereunder will be governed by and construed in accordance with the Laws of the State of Arizona without regard to the principles of conflict of Laws.For the adjudication of any disputes arising under this Agreement, the Parties hereby consent to personal jurisdiction and venue in the state or federal courts located in the State of Arizona.
18.7.Assignment.This Agreement is not assignable in whole or in part by Client without the prior written consent of R3.
18.8.Construction.The Parties acknowledge that they thoroughly have reviewed this Agreement and bargained over its terms.Accordingly, this Agreement will be construed without regard to the Party or Parties responsible for its preparation, and will be deemed to have been prepared jointly by the Parties.
18.9.Severability.If any provision, clause or part of this Agreement, or the application thereof under certain circumstances is held invalid or unenforceable for any reason, the remainder of this Agreement, or the application of such provision, clause or part under other circumstances shall not be affected thereby.
18.10.Notices. All communications, notices and disclosures required or permitted by this Agreement shall be in writing and shall be deemed to have been given one (1) day after being delivered personally or by messenger or being received via telecopy, email or other electronic transmission, or two (2) days after being sent by overnight delivery service, in all cases addressed to the person for whom it is intended at the addresses as follows:
If to R3:
David Greene, R3 Stem Cell
29455 N Cave Creek Rd
Cave Creek, AZ 85331
or to such other address as a Party shall have designated by notice in writing to the other Party in the manner provided by this Section 18.10.
18.11.Counterparts; Headings.This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.The article and section headings in this Agreement are inserted for convenience of reference only and shall not constitute a part hereof.