CHIROFUNNEL FOUNDATIONS
AUTHORIZED AFFILIATE NETWORK SERVICE AGREEMENT
This Authorized Affiliate Network Service Agreement (this “Agreement”) shall become effective as of the date of its execution and shall continue in effect for a period of one year from the date of execution, by and between Simplified Integration Consulting LLC, DBA (“Chirofunnel Foundations”), on the one hand, and the healthcare provider/client (the “Affiliate”), on the other hand. This Agreement shall commence on the day the affiliate’s initial payment is received and shall continue unless terminated in accordance with the terms and conditions of this Agreement.
RECITALS
A. ChiroFunnel Foundations, is engaged, among other things, in the business of providing professional chiropractic consulting services, marketing services, and educational products for authorized affiliate service providers in North Carolina (“the ChiroFunnel Foundations Network”).
B. The Affiliate, acting as an independent entity, desires to become an authorized affiliate service provider of ChiroFunnel Foundations; and
C. ChiroFunnel Foundations desires to appoint Affiliate as an authorized service provider of ChiroFunnel Foundations (“Authorized Affiliate”) in accordance with and subject to the terms and conditions of this Agreement (including, without limitation, all exhibits attached hereto).
1. APPOINTMENT.
1.1 Appointment. ChiroFunnel Foundations hereby appoints the Affiliate as a non-exclusive Authorized Affiliate subject to all of the terms and conditions of this Agreement, including, without limitation, the performance standards.
1.2. Acceptance. The Affiliate hereby accepts its appointment as a non- exclusive Authorized Affiliate subject to and in accordance with all of the terms and conditions of this Agreement, including, without limitation, the performance standards. The Affiliate understands that it may hold itself out to the public as an Authorized Affiliate of ChiroFunnel Foundations only after fulfilling, and for so long as it continues to fulfill, all of the duties, obligations, requirements and other terms and conditions contained in this Agreement, including, without limitation, performance standards, and only during the Term.
1.3 Reservation of Rights. The Affiliate expressly acknowledges and agrees that: (i) all rights in and to the products and services are reserved to ChiroFunnel Foundations and its affiliates; and (ii) nothing in this Agreement shall be deemed to restrict in any manner the rights or abilities of ChiroFunnel Foundations or its affiliates in and to the products and services including the sale of the products and services to other non-parties.
1.4 Prior Agreements and Dealings.
IN THE EVENT THAT THE AFFILIATE PREVIOUSLY ENTERED INTO ANY AGREEMENT WITH CHIROFUNNEL FOUNDATIONS OR ANY OF ITS AFFILIATES RELATING TO THE PRODUCTS OR SERVICES (OR SIMILAR SERVICES) THEN UPON THE EFFECTIVE DATE OF THIS AGREEMENT: (i) ALL PRIOR AGREEMENTS ARE HEREBY AUTOMATICALLY TERMINATED, EXCEPT THAT THE PROVISIONS (EXCLUDING ANY PROVISIONS RELATED TO SERVICE PAYMENTS OR ANY OTHER PAYMENTS OF ANY TYPE DUE) IN SUCH PRIOR AGREEMENTS THAT EXPRESSLY SURVIVE AND SUCH OTHER RIGHTS AND OBLIGATIONS THEREUNDER AS WOULD LOGICALLY BE EXPECTED TO SURVIVE TERMINATION OR EXPIRATION SHALL CONTINUE IN FULL FORCE AND EFFECT FOR THE PERIOD SPECIFIED OR FOR A REASONABLE PERIOD OF TIME UNDER THE CIRCUMSTANCES IF NO PERIOD IS SPECIFIED; (ii) ALL SERVICE PAYMENTS OR OTHER PAYMENTS OF ANY TYPE DUE TO THE AFFILIATE UNDER SUCH PRIOR AGREEMENTS SHALL BE PAYABLE SOLELY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (iii) ALL RIGHTS AND OBLIGATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND ALL PRIOR AGREEMENTS SHALL BE OF NO FURTHER FORCE OR EFFECT.
THE AFFILIATE AND ITS AFFILIATES HEREBY ACKNOWLEDGE AND AGREE THAT THEY DO NOT, AS OF THE EFFECTIVE DATE OF THIS AGREEMENT, HAVE ANY CLAIMS OR CAUSES OF ACTION AGAINST CHIROFUNNEL FOUNDATIONS, SIMPLIFIED INTEGRATION CONSULTING, OR ANY OF ITS OWNERS OR EMPLOYEES FOR ANY ACTS OR OMISSIONS THAT MAY HAVE OCCURRED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT AND, IN CONSIDERATION OF THE AFFILIATE BEING APPOINTED AS AN AUTHORIZED AFFILIATE UNDER THIS AGREEMENT BY CHIROFUNNEL FOUNDATIONS, THE AFFILIATE AND ITS AFFILIATES HEREBY AGREE TO WAIVE ANY AND ALL SUCH CLAIMS AND CAUSES OF ACTION, WITH THE SOLE EXCEPTION OF ANY CLAIMS OR CAUSES OF ACTION FOR WHICH THE AFFILIATE PROVIDES WRITTEN NOTICE TO CHIROFUNNEL FOUNDATIONS IN THE SAME FORM REQUIRED FOR A NOTICE OF CLAIM IN THIS AGREEMENT (OR THE SHORTEST PERIOD OF TIME ALLOWED BY APPLICABLE LAW IF SUCH PERIOD IS MORE THAN 90 DAYS) AFTER THE AFFILIATE EXECUTES THIS AGREEMENT.
2. SERVICES AND PERFORMANCE.
2.1 Services. From time to time ChiroFunnel Foundations or its affiliates will provide patient education materials, professional chiropractic consulting services, nutritional counseling, various educational products, and written and online marketing products. The Affiliate may also request such services or products from ChiroFunnel Foundations. Subject to the terms and conditions of this Agreement, including, without limitation, the performance standards, upon receipt of a request for services or products ChiroFunnel Foundations may, in ChiroFunnel Foundations’s sole discretion, provide such services and products to the Affiliate on a non- exclusive basis, taking into consideration (i) the then-current good standing status and capacity of the Affiliate; (ii) the Affiliate’s ability to use the products and employ the services in a good and workmanlike manner on a timely basis; (iii) ChiroFunnel Foundations resources providing services in the Affiliate’s non-exclusive service area; (iv) all other jobs being performed by, or assigned to, the affiliate and each other authorized affiliate or other entity at the time the request for services is received; and (v) any other factors that ChiroFunnel Foundations may deem appropriate at any time and in ChiroFunnel Foundations’s sole discretion. Notwithstanding anything to the contrary set forth herein, ChiroFunnel Foundations shall have the right, as determined at any time and in its sole discretion to provide or withhold additional services and products to Affiliate.
2.2 Performance. No Guarantee of Outcome. The parties understand that health care laws and regulations are interpreted frequently by courts and by governmental bodies. Legislative changes and administrative or judicial interpretations after the commencement of this Agreement, may significantly impact the business of the Affiliate including the implementation and operation of the Practice Model. Moreover, and not withstanding anything stated in this memo, it is important to bear in mind that prosecution by a governmental or regulatory body is entirely discretionary and outside the control of the parties. Additionally, intentional non-compliance by the Affiliate with the suggestions, methods and services provided by the Consultant may also negatively impact the financial and clinical performance of the Affiliate. Therefore, the Consultant makes no warranties or representations regarding the success of Affiliate’s business in the implementation and operation of the Practice Model. Nothing contained in this Agreement, therefore, should be taken as a representation regarding the likelihood that any governmental authority or body will or will not challenge the structure and operation of the Practice Model.
2.2.1 The Affiliate agrees to properly employ all services and products provided under this Agreement as instructed.
2.2.3. The Affiliate shall comply with each performance standard ChiroFunnel Foundations may from time to time disseminate. ChiroFunnel Foundations and/or any of its affiliates shall have no obligation to the Affiliate under this Agreement during any period in which the Affiliate fails to meet any performance standard(s).
2.2.4 The Affiliate hereby acknowledges and agrees that the relationship, contractual or otherwise, between ChiroFunnel Foundations and its affiliates is for the sole and exclusive benefit of the ChiroFunnel Foundations Network and that ChiroFunnel Foundations may conduct such relationship in any manner that it sees fit at any time and in the sole discretion of ChiroFunnel Foundations without incurring any liability whatsoever to the Affiliate. In furtherance (and without limitation) of the foregoing, the Affiliate acknowledges and agrees that the Affiliate is a not a third-party beneficiary of any agreement that any entity within the ChiroFunnel Foundations Network may have with each other or ChiroFunnel Foundations, and that, under no circumstances, shall the Affiliate have any claim or cause of action against any ChiroFunnel Foundations or entity within the ChiroFunnel Foundations Network for any action taken by such entity. The Affiliate further acknowledges and agrees that all records created or maintained by or on behalf of any entity within the ChiroFunnel Foundations Network are the sole and exclusive property of such entity and such entity shall not have any obligation whatsoever to give or allow the Affiliate access to such information, even if authorized or requested.
3. Payment.
3.1.1 ChiroFunnel Foundations Monthly Payment Structure. Client understands that this is a six (6) month minimum agreement. There are three (3) separate and distinct pricing options depending on the client’s level of involvement with the program. Pricing is subject to change at the discretion of Chirofunnel Foundations. With the execution this agreement:
For the “You-set event” option, in which the affiliate sets up their own marketing events, affiliate shall make Four Hundred Ninety Seven Dollars ($497.00) monthly payments (“Monthly Payments”) for a minimum of six (6) months, which shall be charged by authorized credit card, pursuant to Section 11, below, on or about the first (1st) calendar day of each month this Agreement is in effect.
For the “Done for you event” in which Chirofunnel Foundations assists in setting up marketing events, affiliate shall make One Thousand Four Hundred Ninety Seven Dollars ($1,497.00) monthly payments (“Monthly Payments”) for a minimum of six (6) months, which shall be charged by authorized credit card, pursuant to Section 11, below, on or about the first (1st) calendar day of each month this Agreement is in effect.
For the current and existing Simplified Functional Medicine clients, the “Done for you event” option in which Chirofunnel Foundations assists in setting up marketing events, affiliate shall make Six Hundred Ninety Nine Dollars ($699.00) monthly payments (“Monthly Payments”) for a minimum of six (6) months, which shall be charged by authorized credit card, pursuant to Section 11, below, on or about the first (1st) calendar day of each month this Agreement is in effect.
4. GENERAL TERMS AND CONDITIONS.
4.1 Exclusivity of Affiliate.
4.1.1 The Affiliate covenants and agrees that, during the Term, that the Affiliate shall not, and Affiliate shall cause each person or party associated with Affiliate not to, sublicense, share, or otherwise disseminate any information, products, or services, supplied to it by ChiroFunnel Foundations or its affiliates pursuant to this Agreement.
4.1.2 The Affiliate acknowledges that it is in the best interest of both ChiroFunnel Foundations and its ChiroFunnel Foundations Network for Affiliate to be a long-term affiliate in the ChiroFunnel Foundations Network. The Affiliate acknowledges that unauthorized dissemination of products and services under this Agreement is detrimental to ChiroFunnel Foundations, its affiliates, and the ChiroFunnel Foundations Network. Therefore, the Affiliate agrees that, during the Term and for a period of five (5) years following the expiration or termination of this Agreement for any reason, other than termination by ChiroFunnel Foundations without cause under Section 7.2 below, the Affiliate shall not, and shall cause its affiliates not to, directly or indirectly in any manner whatsoever operate, offer to any person or entity, participate in, or assist any other person or entity to participate in any promotion or program offered by any person or entity (including, without limitation, the Affiliate and/or any of its affiliates) other than ChiroFunnel Foundations or its affiliates that directly or indirectly provides for the delivery of an economic incentive or other benefit to the Affiliate, customers or any other person or entity in any form whatsoever directly or indirectly in connection with the direct or indirect solicitation of customers utilizing or disseminating related professional chiropractic consulting services, nutritional counseling, various educational products, and functional and online health assessment products as provided under this Agreement. Further, and without limitation to the foregoing, during the Term and for a period of five (5) years following the expiration or termination of this Agreement for any reason, other than termination by ChiroFunnel Foundations without cause under Section 7.2 below, the Affiliate shall not provide, or directly or indirectly assist any other person or entity that the Affiliate actually knew or reasonably should have known intended to compete with the Affiliate or any other affiliate in the ChiroFunnel Foundations Network in providing any of the related professional chiropractic consulting services, nutritional counseling, various educational products, and written and online functional and health assessment products as provided under this Agreement. The provisions of this section shall survive expiration or termination of this Agreement, for any reason or no reason whatsoever, for five (5) years.
4.1.3 The Affiliate agrees to make all payments to ChiroFunnel Foundations and its affiliates when due and update the Credit Card (as defined below) information, as necessary, and the Affiliate’s failure to do so shall constitute a Default (as defined below) under this Agreement.
4.2 Independent Affiliate. The relationship of the parties hereto is and at all times shall remain one of independent affiliates. The Affiliate shall conduct its business as an independent affiliate, and all persons employed in the conduct of such business shall be the Affiliate’s employees only, and not employees or agents of ChiroFunnel Foundations or any of its affiliates. The Affiliate shall prominently state its business name, address and telephone number in all communications with the public, including, without limitation, marketing materials, flyers, print ads, television or radio advertisements, web sites, e-mails, invoices, sales slips, and the like. Notwithstanding anything set forth in this Agreement to the contrary, the Affiliate (including, without limitation, its officers, directors, partners, members, employees, if any, and any other person or entity acting by, on behalf of or at the request of the Affiliate) shall not, under any circumstances, hold itself out to the public or represent that it is an employee, Affiliate, agent or sub-agent of ChiroFunnel Foundations or any of its affiliates. In furtherance (and without limitation) of the foregoing, in no event shall the Affiliate use ChiroFunnel Foundations’s legal name or the name of any affiliate of the ChiroFunnel Foundations Network in any manner that would tend to imply that the Affiliate is an affiliate of ChiroFunnel Foundations or that the Affiliate is an employee, affiliate, agent or sub-agent of ChiroFunnel Foundations or any of its affiliates or that the Affiliate is acting or is authorized to act on behalf of ChiroFunnel Foundations or any of its affiliates. This Agreement does not constitute any joint venture or partnership. It is further understood and agreed that the Affiliate has no right or authority to make any representation, warranty, promise or agreement or take any action for or on behalf of ChiroFunnel Foundations or any affiliate of ChiroFunnel Foundations .
4.3 No Franchise or Dealer. This Agreement does not create any relationship of franchisor/franchisee or grantor/dealer between the parties. The Affiliate acknowledges that it operates an existing business and is making no direct or indirect payments to ChiroFunnel Foundations to commence a business or otherwise in the nature of a franchise or business opportunity fee, or in order to obtain any exclusive or other right. The Affiliate represents, warrants and covenants to ChiroFunnel Foundations and its affiliates that the Affiliate does not, and shall not, deem or claim itself to be a franchisee of ChiroFunnel Foundations under any applicable Law (as defined below).
5. CONFIDENTIALITY.
5.1 General. The Affiliate and its employees will maintain, in confidence, the terms, conditions and provisions of this Agreement as well as all information supplied to the Affiliate pursuant to this Agreement, including, without limitation, the performance standards, as well as all consulting services, programs, data, summaries, reports, communications and information of all kinds, whether oral or written, acquired, devised or developed in any manner from ChiroFunnel Foundations or its affiliates’ personnel or files, or as a direct or indirect result of the Affiliate’s actions or performance under this Agreement, including, without limitation, nonpublic personal information (“Confidential Information”). The Affiliate shall not use or disclose any Confidential Information except under express permission pursuant to this Agreement.
5.2 Remedies. The Affiliate agrees that any breach of its obligations set forth in this Section 5 will cause substantial and irreparable harm and injury to ChiroFunnel Foundations and/or its affiliates, for which monetary damages alone would be an inadequate remedy, and which damages are difficult to accurately measure. Accordingly, the Affiliate agrees that ChiroFunnel Foundations and/or its affiliates shall have the right, in addition to (and without limitation of) any other rights and remedies available to ChiroFunnel Foundations and/or its affiliates at law, in equity, under contract, including, without limitation, this Agreement, or otherwise (all of which are hereby expressly reserved), to obtain immediate injunctive relief (without the necessity of posting or filing a bond or other security) to restrain the threatened or actual violation of this Section 5 by the Affiliate, its affiliates, employees, independent affiliates, agents or sub- agents, as well as any and all other equitable relief allowed by the federal or state courts.
5.3 Economic Benefits Derived Held in Trust. In the event that the Affiliate derives an economic benefit, in any form, from a violation of any of its obligations under this Section 5, it is hereby agreed that such economic benefit is the sole and exclusive property of ChiroFunnel Foundations and that the Affiliate shall deliver the cash value of the economic benefit to ChiroFunnel Foundations immediately upon receipt of the economic benefit. It is further agreed that the Affiliate shall hold such economic benefit in trust for the benefit of ChiroFunnel Foundations until such time as its cash value is delivered to ChiroFunnel Foundations. The foregoing is agreed to without prejudice to ChiroFunnel Foundations to exercise any other rights and remedies it may have at law, in equity, under contract, including, without limitation, this Agreement, or otherwise (all of which are hereby expressly reserved), including, without limitation, the right to terminate this Agreement and seek damages or other legal or equitable relief.
5.4 Survival. The provisions of this Section 5 shall indefinitely survive expiration or termination of this Agreement for any reason or no reason whatsoever.
6. AFFILIATE REPRESENTATIONS, WARRANTIES AND COVENANTS.
At all times during the Term, the Affiliate represents, warrants, and covenants to ChiroFunnel Foundations and its affiliates that:
6.1 the Affiliate and its employees shall comply with all applicable governmental statutes, laws, rules, regulations, ordinances, codes, directives and orders (whether federal, state, municipal or otherwise) and all amendments thereto, now enacted or hereafter promulgated (collectively “Laws”, each a “Law”), and the Affiliate is solely responsible for its compliance with all Laws that apply to its obligations under this Agreement;
6.2 the Affiliate will, at the Affiliate’s sole cost and expense, provide and maintain all facilities, tools, materials and equipment (“Affiliate’s Equipment”) as may be necessary and proper for its business including performance under this Agreement. ChiroFunnel Foundations shall not have any responsibility or obligation whatsoever relating to buying or providing the Affiliate with Equipment;
6.3 the Affiliate will, at ChiroFunnel Foundations’s request and at the Affiliate’s expense, obtain all permits and licenses that may be required under any applicable Law to perform the services in accordance with the terms of this Agreement, including, without limitation, the performance standards;
6.4 the Affiliate will, at the Affiliate’s sole cost and expense: (i) obtain or cause to be obtained all licenses, stamps, certificates, registrations or permits that may be required under any applicable Law to operate its business and/or to perform the services in accordance with the terms and conditions of this Agreement;
6.5 (i) the Affiliate is a valid and existing entity in compliance with all Laws related to the maintenance of its corporate or other business status; (ii) the Affiliate is not currently insolvent; (iii) the Affiliate is not currently violating and has never violated any Law that applies to its obligations under this Agreement or any other agreement; (iv) neither the Affiliate nor any of its affiliates has ever engaged in any of the acts prohibited under this Agreement; (v) neither the Affiliate nor any of its affiliates has ever engaged in any acts that would have resulted in automatic termination or be considered a default or breach under any current or former other agreement; and (vi) the Affiliate is not dependent upon ChiroFunnel Foundations and/or any affiliates of ChiroFunnel Foundations Network for a major part of the Affiliate’s business;
6.6 THE AFFILIATE HAS READ THIS AGREEMENT IN ITS ENTIRETY AND UNDERSTANDS FULLY EACH AND EVERY ONE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT;
6.7 THE AFFILIATE HAS BEEN GIVEN THE OPPORTUNITY TO HAVE ITS INDEPENDENT COUNSEL REVIEW THIS AGREEMENT PRIOR TO EXECUTION (WHETHER VIA SIGNATURE OR ELECTRONIC ACCEPTANCE), AND EITHER THIS AGREEMENT HAS BEEN ACTUALLY REVIEWED BY ITS INDEPENDENT COUNSEL OR THE AFFILIATE HAS DECLINED TO HAVE ITS INDEPENDENT COUNSEL DO SO; AND
6.8 THE AFFILIATE HAS NOT BEEN COERCED INTO ENTERING INTO THIS AGREEMENT AND IT HAS ENTERED INTO THIS AGREEMENT OF ITS OWN FREE WILL AND FREE OF INFLUENCE OR DURESS.
7. TERM, AUTOMATIC RENEWAL FOR ONE-YEAR TERM, AND TERMINATION.
7.1 Term. This Agreement shall automatically renew for consecutive one-year terms (“Renewal Term”) if not otherwise terminated in accordance with the terms and conditions of this Agreement.
7.2 Termination by Either Party Without Cause. Either party may, in its sole discretion, terminate this Agreement for convenience (i.e., without cause) by delivering written notice to the other party no less than ninety (90) days’ prior to the expiration of the Term or any Renewal Term of this Agreement. The Affiliate and ChiroFunnel Foundations understand and agree that the provisions of this Section 7.2 constitute a critical element in the economic bargained for exchange of this Agreement and that ChiroFunnel Foundations would not have entered into this Agreement without the benefits and protections of this Section 7.2.
7.3 Termination by Either Party Upon Default. This Agreement may be terminated by a party (the “Affected Party”) if the other party (the “Other Party”) has failed to cure any Default (as defined below) within twenty (20) days following receipt of a written notice of such Default from the Affected Party. For the purposes of this Agreement, a “Default” shall occur when the Other Party fails to pay any amount to the Affected Party or any of its affiliates when due under this Agreement or any other agreement.
8. LIMITATION OF LIABILITY.
8.1 UPON THE EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON OR NO REASON WHATSOEVER, ChiroFunnel Foundations AND ITS AFFILIATES SHALL HAVE NO LIABILITY OR OBLIGATION TO THE AFFILIATE WHATSOEVER AND THE AFFILIATE SHALL HAVE NO RIGHT TO REQUIRE ChiroFunnel Foundations TO CONTINUE TO ALLOW THE AFFILIATE TO ACT AS AN AUTHORIZED AFFILIATE OR TO OTHERWISE PERFORM SERVICES AS AN AFFILIATE OF ChiroFunnel Foundations. THE AFFILIATE AGREES THAT IN THE EVENT OF EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON OR NO REASON WHATSOEVER, NO AMOUNTS SPENT IN FULFILLMENT OF THIS AGREEMENT WILL BE RECOVERABLE BY THE AFFILIATE FROM ChiroFunnel Foundations OR ANY OF ITS AFFILIATES.
8.2 IN NO EVENT SHALL ANY PROJECTIONS OR FORECASTS MADE BY OR ON BEHALF OF ChiroFunnel Foundations OR ANY AFFILIATE OF ChiroFunnel Foundations BE BINDING AS COMMITMENTS OR PROMISES. IN NO EVENT SHALL ChiroFunnel Foundations OR ANY AFFILIATE OF ChiroFunnel Foundations BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES TO THE AFFILIATE (WHETHER FORESEEABLE OR NOT) INCLUDING, WITHOUT LIMITATION, ANY PAYMENT FOR LOST BUSINESS, FUTURE PROFITS, LOSS OF GOODWILL, REIMBURSEMENT FOR EXPENDITURES OR INVESTMENTS MADE OR COMMITMENTS ENTERED INTO, CREATION OF CLIENTELE, ADVERTISING COSTS, TERMINATION OF EMPLOYEES OR EMPLOYEES’ SALARIES, OVERHEAD OR FACILITIES INCURRED OR ACQUIRED BASED UPON THE BUSINESS DERIVED OR ANTICIPATED UNDER THIS AGREEMENT OR CLAIMS UNDER DEALER TERMINATION, PROTECTION, NON-RENEWAL OR SIMILAR LAWS, FOR ANY CAUSE WHATSOEVER WHETHER OR NOT CAUSED BY NEGLIGENCE, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
8.3 ChiroFunnel Foundations MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO ANY GOODS, SERVICES, OR TRADEMARKS SUPPLIED PURSUANT TO THIS AGREEMENT, AND SPECIFICALLY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATIVE TO THE SAME INCLUDING FITNESS FOR A PARTICULAR PURPOSE.
8.4 THE AFFILIATE SHALL NOT ASSERT OR USE AS A DEFENSE IN ANY LAWSUIT, CLAIM, ACTION OR OTHER PROCEEDING THAT THE AFFILIATE IS A FRANCHISEE OR DEALER OF ChiroFunnel Foundations OR ANY OF ITS AFFILIATES OR THAT THE AFFILIATE IS DEPENDENT UPON ChiroFunnel Foundations FOR A MAJOR PART OF ITS BUSINESS, AND IN NO EVENT SHALL ChiroFunnel Foundations OR ANY AFFILIATE OF ChiroFunnel Foundations HAVE ANY LIABILITY OR OBLIGATION WHATSOEVER FOR ANY CAUSE OR CLAIM BASED IN WHOLE OR IN PART ON ANY SUCH ASSERTION OR DEFENSE.
9. ARBITRATION.
9.1 Any and all disputes, controversies or claims between the Affiliate and ChiroFunnel Foundations and/or any of its affiliates including, without limitation, any and all disputes, controversies or claims arising out of or in connection with this Agreement, and any allegations of fraud in the inducement, or that relate to the parties’ relationship with each other or either party’s compliance with any Law, that are not settled through informal negotiation shall be resolved solely and exclusively by binding arbitration in accordance with both the substantive and procedural Laws of Title 9 of the U.S. Code and the Commercial Arbitration Rules of the American Arbitration Association. In consideration of ChiroFunnel Foundations entering into this Agreement with the Affiliate, the Affiliate agrees that it will not serve as a class representative in any class action lawsuit brought by any person or legal entity concerning this Agreement in any respect.
9.1.1 Initiation of Arbitration; Selection of Arbitrators. The arbitration must be initiated within ninety (90) days from the date any dispute arises. The arbitration shall be conducted in the City of Asheville and County of Buncombe, North Carolina by a panel of three (3) arbitrators that reside in North Carolina who shall be selected as follows: (i) one (1) arbitrator shall be selected by the claimant(s) within thirty (30) days after sending the Notice of Arbitration; (ii) one (1) arbitrator shall be selected by the respondent(s) within thirty (30) days following the claimant(s) notifying respondent of the identity of claimant’s arbitrator ; and (iii) the third arbitrator shall be selected by the arbitrators chosen by the claimant(s) and the respondent(s) within thirty (30) days following the appointment of the respondent(s)’ arbitrator. The parties acknowledge and agree that each party shall have the option, exercisable upon written notice to the other party, to designate the arbitrator selected by such party as a non-neutral arbitrator in which event such arbitrator shall not be impartial or independent and shall not be subject to disqualification for partiality or lack of independence. Notwithstanding the foregoing, if either party fails to timely select an arbitrator pursuant to this Section 10.1: (a) such party shall be deemed to have waived its right to a three-member arbitration panel and shall be required to participate in the arbitral proceedings with the one (1) arbitrator selected by the other party without any objection, and (b) the one (1) arbitrator selected by the other party shall thereafter be deemed a neutral arbitrator with whom neither party shall communicate ex parte concerning the arbitration.
9.2 Exceptions. Notwithstanding the foregoing, ChiroFunnel Foundations may initiate a small claims lawsuit to collect on any payments due and owing under this
Agreement in the Buncombe County Small Claims Court for the State of North Carolina. Additionally, either party may initiate a lawsuit seeking injunctive relief only in Buncombe County Circuit Court for the State of North Carolina.
10. CREDIT CARD AUTHORIZATION.
10.1 Affiliate agrees to each of the above terms and conditions of this Agreement, certifies that Affiliate is authorized to incur charges on the following credit card (the “Credit Card”) and hereby authorizes ChiroFunnel Foundations to charge the payment as specified in Section 3.3.1 and the Monthly Payment as specified in Section 3.3.1 above, including automatic renewals of this Agreement as specified in Section 7.1 above, to the following Credit Card:
By submitting credit card payment information, Affiliate acknowledges the terms of this Agreement and agrees that it shall be solely responsible to notify ChiroFunnel Foundations of any changes to the credit card information prior to the expiration of the credit card or in the event any of the credit information is changed for any other reason. Affiliate further acknowledges and agrees that Affiliate’s failure to comply with this section shall constitute a Default under this Agreement.
11. Choice of Law; Exclusive Jurisdiction. The relationship between the parties and their present and future affiliates, including, without limitation, all disputes, controversies or claims, whether arising in contract, tort, under statute or otherwise, shall be governed by and construed in accordance with the laws of the State of North Carolina, applicable to contracts to be made and performed entirely within the State of North Carolina by residents of the State of North Carolina, without giving any effect to its conflict of law provisions.
12. Entire Agreement. This Agreement constitutes the entire and complete agreement between the parties with respect to, and supersedes, integrates and merges herein all prior or contemporaneous representations, discussions, proposals, negotiations, conditions and agreements, whether oral or written, and all communications between the parties relating to, the subject matter of this Agreement. Except as otherwise expressly provided in this Agreement, no party shall be bound by any communication between them on the subject matter of this Agreement, unless such communication is: (i) in writing; (ii) bears a date contemporaneous with or subsequent to the Effective Date; and (iii) is signed by both parties to this Agreement. The parties specifically acknowledge that there are no unwritten side agreements or oral agreements between the parties that alter, amend, modify or supplement this Agreement. In addition to (and without limitation of) any provisions of this Agreement that expressly survive termination or expiration, any provision of this Agreement that logically would be expected to survive termination or expiration, shall survive for a reasonable time period under the circumstances.
13. Compliance with Laws. In addition to the Affiliate’s obligations above, the Affiliate hereby agrees that this Agreement is subject to, all applicable Laws in force during the Term.
14. Severability. The parties agree that each provision of this Agreement shall be construed as separable and divisible from every other provision and that the enforceability of any one provision shall not limit the enforceability, in whole or in part, of any other provision of this Agreement. If any one or more of the provisions contained in this Agreement, or the application thereof to any person, entity, or circumstance, for any reason are held to be invalid, illegal or unenforceable in any respect, then such provision(s) shall be enforced to the maximum extent permissible, and the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.
15. Force Majeure. Notwithstanding anything set forth to the contrary in this Agreement, neither party shall be liable to the other party for its failure to fulfill any of its obligations hereunder if such failure is caused by or arises out of an act of force majeure including, without limitation, acts of God, war, riot, natural disaster, technical failure or any other reason beyond the reasonable control of the party whose performance is prevented during the period of such occurrence.
16. Remedies Cumulative. It is agreed that the rights and remedies herein provided to ChiroFunnel Foundations in case of default or breach by the Affiliate of this Agreement are cumulative and without prejudice to any other rights and remedies that ChiroFunnel Foundations or its affiliates may have by reason of such default or breach by the Affiliate at law, in equity, under contract (including, without limitation, this Agreement) or otherwise (all of which are hereby expressly reserved).
17. Attorneys’ Fees. In the event of any suit, action or arbitration between the Affiliate and ChiroFunnel Foundations including, without limitation, any and all suits, actions or arbitrations to enforce this Agreement the prevailing party shall be entitled to recover its costs, expenses and reasonable attorneys’ fees, at arbitration, at trial and on appeal, in addition to (and without limitation of) all other sums allowed by law. The provisions of this section shall indefinitely survive expiration or termination of this Agreement for any reason or no reason whatsoever.
18. Trademark License Agreement. ChiroFunnel Foundations hereby grants to Affiliate (or “Licensee”) a non-exclusive, non-transferable, non-assignable, and revocable license (the “License”) to use the trademark “HEALTH RESTORE PROGRAM” or “SIMPLIFIED FUNCTIONAL MEDICINE” (collectively, the “Mark”) during the Term, and no other license or term whatsoever, solely to perform Affiliate’s obligations under this Agreement and within the ChiroFunnel Foundations Network as authorized by this Agreement. Licensee expressly recognizes and agrees that Licensee shall not, in whole or in part, modify, alter, supplement, delete or otherwise change the Mark or any other trademark or service mark of ChiroFunnel Foundations. At no time shall any materials created or used by Licensee indicate that any agreement of agency, partnership, joint venture, franchise or exclusive or non-exclusive rights exists between Licensee, on the one hand, and ChiroFunnel Foundations and/or its affiliates, on the other hand, unless enter into a separate written agreement expressly permitting Licensee to do so. ChiroFunnel Foundations expressly reserves the right to review and approve any use of the Mark, and in each case in typewritten, stylized and/or any other form required by ChiroFunnel Foundations in its sole discretion. Licensee agrees that all products and services promoted and/or rendered by Licensee in connection with the Mark, shall be of a nature and quality that conforms to such standards as may be required by ChiroFunnel Foundations from time to time in its sole discretion. The License granted by ChiroFunnel Foundations is granted to Licensee only. Licensee has no authority to transfer or grant any sublicense to any other entity or individual for any reason, and if Licensee does so, this Agreement shall automatically terminate, unless ChiroFunnel Foundations notifies Licensee to the contrary in writing at any time thereafter. Licensee shall immediately cease using the Mark upon expiration or termination of this Agreement for any reason or no reason whatsoever. Upon expiration or termination of this Agreement for any reason or no reason whatsoever, at ChiroFunnel Foundations’s option, Licensee shall, at its sole cost and expense, immediately destroy or deliver to ChiroFunnel Foundations any and all advertising and promotional materials in Licensee’s possession with the Mark (whether in typewritten, stylized or any other form) on them and immediately cease using the Mark. In addition to (and without limitation of) any of the foregoing, in the event Licensee does not receive written notice of ChiroFunnel Foundations’s option pursuant to the immediately preceding sentence, Licensee shall, at its sole cost and expense, deliver all materials described in such sentence to ChiroFunnel Foundations. If ChiroFunnel Foundations requests destruction of advertising and promotional materials and/or that Licensee cease using the Mark, Licensee shall promptly execute an affidavit representing, at a minimum, that such materials were destroyed and/or that the use of the Mark, as applicable, has ceased and the date and means of such destruction or last use. Licensee expressly recognizes and acknowledges that this License, as well as any past use by Licensee of the Mark in any manner whatsoever (including, without limitation, use on signs, on business cards, in advertisements) or in any form whatsoever (including, without limitation, typewritten or stylized form), shall not confer upon Licensee any proprietary or other rights, or title or interest in, to or under the Mark, including, without limitation, any existing or future goodwill in the Mark. Further, Licensee waives any and all past, present, or future claims it has or might have in the future in, to, or under the Mark (whether in typewritten, stylized or any other form) and acknowledges that as between ChiroFunnel Foundations and Licensee, ChiroFunnel Foundations has the exclusive rights to own and use the Mark, and that ChiroFunnel Foundations and its affiliates retain full ownership of the Mark notwithstanding the License granted herein. Licensee agrees not to hold itself out as ChiroFunnel Foundations Network, or ChiroFunnel Foundations. To avoid any confusion in this respect, unless otherwise expressly agreed to in advance in a writing, Licensee agrees not to use, register, submit an application for, obtain, acquire or otherwise seek as part of its business name, trade name or otherwise the Mark or any other trademark or service mark that ChiroFunnel Foundations at any time in its sole discretion deems to be confusingly similar to the Mark or any other trademark or service mark with respect to which ChiroFunnel Foundations or any of its affiliates: (i) has registered; (ii) used in commerce; or (iii) is then seeking or otherwise pursuing registration (whether within the territory or otherwise). Nothing in this Agreement shall be construed to bar or restrict in any way ChiroFunnel Foundations and/or its affiliates from protecting their right to the exclusive use of the Mark or any other trademark or service mark against infringement thereof by any party or parties, including without limitation Licensee and its affiliates, either during the Term or following any expiration or termination of this Agreement for any reason or no reason whatsoever. Licensee will promptly and fully advise ChiroFunnel Foundations of any use of the Mark or any other trademark or service mark or other use that may appear to infringe the Mark or any other trademark or service mark (whether in typewritten, stylized or any other form). Licensee will also fully cooperate with ChiroFunnel Foundations and its affiliates in the defense and protection of the
Mark or any other trademark or service mark. Similarly, nothing in this Agreement shall be construed to require that ChiroFunnel Foundations and/or its affiliates take any action to protect Mark or any other trademark or service mark in any instance, and ChiroFunnel Foundations and its affiliates shall not be liable to Licensee in any manner whatsoever for failure to take any such action.
19. Construction and Interpretation. The Affiliate and ChiroFunnel Foundations hereby represent, warrant, acknowledge and agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.