NOW THEREFORE, in consideration of the foregoing recitals, the mutual agreements, covenants, and premises contained herein, and for other good and valuable consideration, the receipt sufficiency and validity of which are hereby acknowledged, the parties agree as follows:
1. Description of the Service
1.1 Service: As used herein, the Service; means the provision by R3 Stem Cell of User Inquiry processing services for the benefit of Client.
1.2 Directory of Providers; User Searches: R3 Stem Cell, its affiliated companies and/or its online partners maintain the Web Sites through which Users may obtain information about the Providers listed in the Directories and inquire about the Provider selected by the User.
1.3 The User Contacts the Client: R3 Stem Cell shall communicate User contacts to Client through one of the following methods:
1.3.1 Telephone Call Forwarding: The search results displayed in response to each User request will include a phone number operated by R3 Stem Cell that is assigned to each corresponding Provider listing(s). If the User chooses to contact the Client by phone, R3 Stem Cell will re-direct the phone call to the phone number Client has provided to R3 Stem Cell.
1.3.2 Electronic Mail: The User may contact the Client via an email to R3 Stem Cell. When R3 Stem Cell receives a User email regarding one or more Provider that includes the Client, R3 Stem Cell will collect information about the User and will forward, via email, the information obtained.
1.3.3 Telephone Answering Service: Users may call the number listed on the Web Sites and leave a message with R3 Stem Cell. The same User information specified in Section 1.3.2 will be captured, and an email will be sent to the Client’s email address on file if Client is included in the group of Providers matching the Users search criteria.
1.3.4 Live Chat: Users may “chat” with a R3 Stem Cell representative via a text chat box prompt on the Web Sites. The same User information specified in Section 1.3.2 will be captured, and an email will be sent to Client’s email address on file if Client is included in the group of Providers matching the User’s search criteria.
1.4 Recording of Calls: The R3 Stem Cell records the inbound phone calls of Users contacting the Client through the phone number associated with the Client’s listing in the Directory. The Client hereby consents to R3 Stem Cell recording all calls routed to the Client through the Service. Phone calls placed to the Client will be regularly sent to Client’s email account (the “Inbox”) for Client’s review. R3 Stem Cell will retain call recordings for 60 days, but delete call recordings older than 60 days as needed.
1.5 Ownership: Client acknowledges and agrees that R3 Stem Cell, or, as applicable, its affiliate(s), shall at all times retain ownership of the Web Sites and domain names, including, without limitation, all intellectual property rights contained therein. R3 Stem Cell acknowledges and agrees that Client owns all right, title and interest in and to Client products and services, including, without limitation, all intellectual property rights contained therein..
2. Client Obligations
2.1 Provide Up-To-Date Contact Methods and Billing Information: Client agrees to provide R3 Stem Cell with an up-to-date, working phone number to which R3 Stem Cell may route User inquiries. Client agrees to maintain sales and customer service representatives to answer all User calls placed to Client’s phone number as they arrive. It is the Client’s responsibility to notify R3 Stem Cell with any changes to Client’s billing and contact information.
2.2 Listings: Client may customize its Directory listings with items such as logos, photos, and descriptions of its services, facilities and personnel. The Service is not exclusive; all Providers shall be entitled and enabled with the same customization capabilities. Client shall use best efforts to ensure that all content provided to R3 Stem Cell for display on the Web Sites is (1) accurate, (2) up-to-date; (3) not misleading, and (4) complies with all applicable laws and regulations (including, but not limited to, any applicable laws and regulations governing advertising that are applicable to Client’s business). R3 Stem Cell does not undertake any obligation to screen or otherwise determine whether or not content provided by Client complies with applicable law and regulations.
2.3 Relationship with Users: Client is solely responsible for all aspects of Client’s relationship with Users. R3 Stem Cell makes no representation as to the number of Users who will contact Client through the Service.
2.4 Review of Inbox: Client will review the calls sent to Client’s email at least once every fourteen (14) days. Client agrees to notify R3 Stem Cell within fourteen (14) days of the email of the call being sent. If there is a dispute between Client and R3 Stem Cell regarding any charges under this Agreement, Client and R3 Stem Cell will cooperate in good faith to resolve the dispute.
2.5 Privacy: Client is responsible for protecting the privacy of Users. Client agrees not to disclose any personal information or data obtained through the Service regarding any User (the “User Data”) to any third party for any reason whatsoever without the prior consent of the User, unless, and only to the extent that, disclosing the User Data is necessary to comply with applicable law or regulation.
2.6 Licensing and Accreditation; Compliance with Industry Standards and Law: Client agrees to maintain all applicable industry accreditations and all necessary federal, state and local government licenses required to provide the services as a listed Service Provider in the state(s) in which Client operates.
3.1 Fees: In consideration the provision of the Service by R3 Stem Cell, Client agrees to pay R3 Stem Cell a fee (“Fee”) for each Qualified User Inquiry directed to Client that originated through the Service (each a “Billable Event”). The Fee per Inquiry is set forth above at the beginning of this Agreement.
3.2 Billing: R3 Stem Cell will bill Client’s credit card (provided at registration) following the end of each Billing Cycle for the Fees for all Billable Events that occurred during such Billing Cycle, as well as for any outstanding balances. A “Billing Cycle” is currently defined as one week, starting on the Effective Date, and recurring weekly. R3 Stem Cell reserves the right to change the Billing Cycle at any time. Any and all late payments shall accrue interest at the rate of one and one half percent (1.5%) per month (or the highest rate permitted by law, whichever is less). In addition, Client is responsible for paying any reasonable expenses and attorneys’ fees that R3 Stem Cell incurs in connection with collecting late amounts.
4. License: Client hereby grants R3 Stem Cell a non-exclusive, worldwide, paid-up, royalty-free, transferable (in the event of a sale or other change of control of USLeadNetwork.net or affiliated business) right and license to use Client’s service marks on any Web Site or other marketing materials to indicate Client’s participation in the Service. R3 Stem Cell may sublicense this right to any of its affiliates and online partners.
5. Term and Termination
5.1 Term: The term of this Agreement (the “Initial Term”) shall commence as of the date of this Agreement and continue for a period of one (1) year thereafter unless sooner terminated as otherwise set forth hereunder. This Agreement shall automatically renew for additional one (1) year periods (each a “Renewal Term”) unless a party notifies the other party in writing of its intention not to renew this Agreement at least ninety (90) days prior to the end of the Initial Term or the then-current Renewal Term. The Initial Term and any Renewal Term(s) shall be collectively referred to as the “Term”.
5.2 Termination:Upon termination pursuant to this Section 5, R3 Stem Cell will bill Client’s credit card for the Fees for all Billable Events that occurred during the Billing Cycle up to the date of termination, as well as for any outstanding balances. In addition, upon termination, the Directory will cease listing Client as a participating Provider. R3 Stem Cell or client may terminate this Agreement and disconnect Client’s Service at any time for convenience upon 30 days’ written notice (which R3 Stem Cell or Client may provide by email).
5.3 Survival: In the event of any termination of this Agreement, Client will remain responsible for any Fees with respect to any Billable Events occurring prior to the date of termination. In addition, the following provisions shall survive any termination of this Agreement: Section 5.3 (“Survival”), Section 6 (“Disclaimer and Limitation of Liability”), Section 7 (“Indemnification”), Section 8 (“Representations and Warranties”) and Section 9 (“General Provisions”).
6. Service Warranty Disclaimer and Limitation of Liability.
6.1THE SERVICE AND ANY OTHER SERVICES PROVIDED BY R3 STEM CELL IN CONNECTION WITH THIS AGREEMENT ARE SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT UNDER APPLICABLE LAW, R3 STEM CELL MAKES NO, AND DISCLAIMS ALL, WARRANTIES (INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT), GUARANTEES, AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR OTHERWISE. R3 STEM CELL DOES NOT WARRANT OR GUARANTY THE NUMBER OF USER INQUIRIES, APPOINTMENTS, RESPONSE RATES AND/OR PLACEMENT RATES. R3 STEM CELL AND OTHER WEB SITES, DATABASES AND/OR PROGRAMS MAY CONTAIN BUGS, ERRORS, PROBLEMS AND/OR OTHER LIMITATIONS. R3 STEM CELL HAS NO LIABILITY, WHATSOEVER, TO CLIENT OR ANY THIRD PARTY, FOR ANY OTHER PARTY’S SECURITY METHODS, PRIVACY PROTECTION PROCEDURES, AND/OR USE OF, OR INABILITY TO USE, R3 STEM CELL WEB SITES, DATABASES AND/OR PROGRAMS.
6.2In no event shall R3 Stem Cell be responsible for any consequential, incidental, special, punitive, exemplary or indirect damages arising from or relating to this agreement or otherwise, including, without limitation, lost revenue or profits, even if R3 Stem Cell has been advised of the possibility of such damages.
6.3 In addition, and notwithstanding anything contained herein to the contrary, R3 Stem Cell’s liability under any cause of action arising from or in connection with this Agreement or otherwise shall be limited to the lesser of $500 or the fees paid to R3 Stem Cell by Client during the thirty-day period prior to the date the cause of action arose.
6.4 R3 Stem Cell shall not be held liable or responsible for any actions or inactions of its affiliates or sub-licensees.
Indemnification: Client will defend, indemnify, and hold harmless, R3 Stem Cell and its affiliates, and each of our and their respective officers, directors, members, managers, employees, sublicensees, contractors and agents (collectively, “Indemnified Parties”) from and against any and all claims, actions, losses, liability, damages, fines, costs, and expenses (including reasonable attorney’s fees and expenses) arising from or related to: (a) any breach of the Agreement by Client (including, but not limited to, any representations and warranties made herein); (b) any violation of any law or regulation arising from or in connection with Client’s participation in the Service, unless such violation is the result of R3 Stem Cell’s, its affiliate(s)’ and/or its sub-licensee(s)’ intentional misconduct or fraud; (c) any allegation that Client has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (d) any claim by any User or any other third party related solely to Client or Client’s services; and (e) any User dispute with Client, any injury suffered by a User at Client’s place of business or any other User-related issue at Client’s place of business or while receiving services from, or communicating with, Client.
8. Representations and Warranties by Client: Client hereby warrants, represents, and covenants (with the understanding that R3 Stem Cell is relying on these representations, warranties, and covenants) that as of the Effective Date and at all times during the term of this Agreement:
8.1The individual entering into this Agreement on behalf of Client is authorized to act on Client’s behalf and to bind Client to this Agreement;
8.2 Client has the full power and authority to conduct its business, including all applicable licenses, to enter into this Agreement, and to perform its obligations under this Agreement;
8.3 Client’s execution, delivery and performance of this Agreement will not conflict with or violate: (a) any provision of law, rule or regulation to which Client are subject; (b) any order, judgment or decree applicable to Client; (c) any provision of Client’s organizational documents; or (d) any agreement or other instrument applicable to Client; and
8.4 Client will comply with all applicable federal, state and local laws, rules, regulations, court orders, judgments and decrees.
9. General Provisions
9.1.1 Definition:As used herein, “Confidential Information” of a party means any and all technical or non-technical information, including the Fees set forth herein, 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”).
9.1.2 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 such precautions to protect such Confidential Information as it employs to protect its own Confidential Information (but in no case less than reasonable precautions). Neither party may disclose the other party’s Confidential Information or any information derived therefrom to any third party.
9.1.3 Required Disclosure: The restrictions of Section 9.1.2 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, in order to provide the Discloser with an opportunity (at its own expense) to object to the disclosure.
9.1.4 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.
9.1.5 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.
9.1.6 Rights on Termination: Upon termination of this Agreement, each of the parties shall return all Confidential Information in its possession to the other.
9.2 Notices: All notices to R3 Stem Cell shall be sent to R3 Stem Cell at 6042 E. Brianna Road, Phoenix, Arizona 85331, attention President. Any notices to Client may be effected by sending an email to the email address specified in Client’s Inbox or by posting a message to Client’s Inbox, and shall be deemed received when sent (for email) or twenty-four (24) hours after having been posted (for messages in Client’s Inbox).
9.3 Policies: Client’s participation in the Service shall be subject to all applicable R3 Stem Cell policies including, without limitation, the Privacy Policies posted on any Web Site on which Client listings are published, and any applicable Web Site specification requirements (collectively, “Policies”). The Policies may be modified by R3 Stem Cell at any time. By Client’s continued participation in a Service, Client agrees to all of the associated terms and conditions contained within the Policies effective at that time.
9.4 Force Majeure: Neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party and not due to such party’s negligence or fault, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. There shall be no excuse for Client’s payment obligations pursuant to Section 3 of this Agreement.
9.5Waiver: The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
9.6No Agency; Independent Contractors: The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties.
9.7 Governing Law and Forum: This Agreement, and any disputes arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to its choice of law provisions. Each of the parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona for any such disputes.
9.8 Entire Agreement; Amendment: This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof. R3 Stem Cell may modify the terms of this Agreement at any time without liability, and Client’s use of the Service after notice that the terms of this Agreement have changed constitutes Client’s acceptance of the new terms.
9.9 Headings: Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
9.10 Costs, Expenses and Attorneys’ Fees: If either party commences any action or proceeding against the other party to enforce or interpret this Agreement, the prevailing party in such action or proceeding shall be entitled to recover from the other party the actual costs, expenses and reasonable attorneys’ fees (including all related costs and expenses), incurred by such prevailing party in connection with such action or proceeding and in connection with obtaining and enforcing any judgment or order thereby obtained.
9.11 Representation by Counsel: Each party hereto has had the opportunity to consult with and be represented by independent counsel familiar with the matters herein, and the parties acknowledge that they have so consulted, if desired, and have voluntarily and freely elected to enter into this Agreement recognizing that each is, as part of the consideration hereof, establishing important legal rights. The parties further acknowledge that by entering into this Agreement, they have created significant legal rights one between the other.
9.12 Construction of Agreement: The parties acknowledge their right to independent legal counsel, and agree to obtain any appropriate advice or opinion about this transaction from their respective attorneys. The parties acknowledge that this Agreement and all documents executed in connection herewith have been prepared and agreed upon pursuant to negotiations between the parties.
9.13 Inurement: This Agreement shall inure to the benefit of and be binding on the parties hereto and on each of their respective heirs, executors, administrators, personal representatives, successors and assigns.
9.14 Necessary Acts. Each of the parties shall promptly and without delay do any act or thing and shall execute all instruments reasonably necessary and proper to make effective the provisions of this Agreement.
9.15 Integration Clause; No Oral Modification: This Agreement represents the entire agreement of the parties with respect to its subject matter, and all agreements, oral or written, entered into prior to this Agreement are revoked and superseded by this Agreement. This Agreement may not be changed, modified, or rescinded, except in a writing, signed by all parties hereto, and any attempt at oral modification of this Agreement shall be void and of no effect.
9.16 Recitals: The recitals are incorporated in this Agreement by reference and form part of the Agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement effective as of the date first above written.