Master Services Agreement
MASTER SERVICES AGREEMENT
Effective August 1, 2022
This Master Services Agreement (“MSA” or the “Agreement”), in addition to the applicable Order Form, governs your relationship with KnoWEwell, P.B.C. (referred to as “KnoWEwell,” the “Company,” “we,” “us,” or “our”) and sets forth the terms and conditions of your use of the Services offered by KnoWEwell.
READ THIS MSA CAREFULLY BEFORE SIGNING AN ORDER FORM. BY SIGNING AN ORDER FORM, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS MSA AND ANY OTHER AGREEMENT REFERRED TO IN THE ORDER FORM OR HEREIN.
Hub’s Terms and Conditions.
KnoWEwell reserves the right to revise and update this MSA and those other terms and conditions incorporated by reference at any time. Your continued use of the Company’s services means you accept those changes. For so long as you agree to this MSA and abide by its terms, you may continue to use the services described in the Order Form(s). If you do not agree to any or all the terms in this MSA and those other terms and conditions incorporated by reference, and revisions thereof, then you are not permitted to use the Services described in the Order Form(s).
KnoWEwell’s mission is to inspire and empower WELLthier Living®. The Hub is intended to be a private, secure, and safe space to find information, learn, and engage respectfully with like-minded people. Failure to comply with this MSA may result in suspension or revocation of your rights to use the Services described in the Order Form(s).
trade secrets, know-how and other confidential information created by or belonging to the applicable person or entity, including, but not limited to, research, product plans, products, services, customer lists, supplier lists, marketing information, sales information, financial information, and other business information, whether in written, oral, digital, or other format, and, without limiting the forgoing, any software utilized by the Company in providing the Services, including source code, the terms and pricing under this MSA and any Order Form, future enhancements to existing Services, your and Users’ Data residing in the Services environment, and all information clearly identified as confidential at the time of disclosure.
text, images, video, audio, and other content of any type, in all languages, media, formats, and markets, from past, current and future print, website, social media accounts, and in the Services, including the reference materials and source citations supporting all such content, and all Intellectual Property Rights therein.
“Hub” or the “Regenerative Whole Health® Hub” means the websites and online and mobile applications community and marketplace operated by the Company.
all right, title, and interest (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to any technology, works of authorship, inventions, discoveries, databases or other intellectual property, and includes without limitation patents, copyright, and similar authorship rights, personal rights (such as moral rights, rights of privacy, and publicity rights), trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
“KnoWEwell Parties” means collectively KnoWEwell, its affiliates, subsidiaries, or any of their respective officers, directors, partners, shareholders, employees, agents, licensors, suppliers, sponsors, and members
gross membership fees collected by the Company from provider/practitioner members or individual members referred by you less the following expenses relating to or arising out of such membership fees: (i) discounts, coupons, incentives and promotions; (ii) cancellations, exchanges, returns and other refunds; (iii) credit card and other processing fees; (iv) sales, use, excise, value-added and similar taxes (but not taxes on the net income of the Company); and (v) other third-party charges that directly relate to and result from such memberships (e.g., third-party license fees for re-licensed content).
unique alpha-numeric-symbols assigned by the Company to you for different Services or promotions to be used for the purchase of the Company’s membership subscriptions (only one Referral Code may be used for each purchase, and the Company will be entitled to rely on the Referral Code received at the time of purchase as conclusive evidence of the entity entitled to the applicable referral fees).
trademarks, trade names, trade dress, service marks, and logos owned or in-licensed by a Party.
2. APPLICABILITY OF AGREEMENT
3. RIGHTS GRANTED AND SERVICES
If provided for in the Order Form, the Company may provide you with the ability to create an Administrator login and associated password, and you shall only permit User access through a browser interface or dedicated mobile app with User Credentials. As Administrator, you may establish such User accounts as you deem necessary subject to the terms of this MSA and applicable Order Form. You will require each User to keep passwords used to access the Services confidential and not authorize any third party to access or use the Services on their behalf.
You acknowledge that the Company has no delivery obligation and will not ship copies of any Company software to you as part of the Services. You agree that you do not acquire any license to use the Services specified in the Order Form in excess of the scope or duration set forth in the Order Form. Upon the end or termination of your Subscription, your right to access or use the Services specified in the Order Form shall terminate.
distribute, transfer,modify, disable, attempt to circumvent, or otherwise security, copy protection, or other similar featurereproduce, display, publish, modify, edit, revise, alter, translate, syndicate, consolidate, remove any proprietary notices, labels or marks embedded in or displayed with the
vulgar, pornographic, use the Services to express political views or actions, as determined by the Company in its sole discretion;
Each Hub member is required to accept and comply with the Company’s standard policies, terms and conditions (other than the related subscription fee if the membership is provided without charge) as a condition of membership. Additionally, provider/practitioner members on the Hub are subject to the Company’s screening and acceptance processes; acceptance of your constituents as provider/practitioner members is not guaranteed.
3.8. Multi-media Content. The Company may provide you with the ability to offer your educational multi-media Content for sale on the Hub using the Company’s publishing, webinar, webcast, learning management, and/or similar services. Such Content should be for educational or informational purposes and consistent with KnoWEwell’s mission is to inspire and empower WELLthier Living®. As appropriate, your educational Content should attribute medical or health claims and scientific study results and cite credible, authoritative sources. Educational Content that is laden with sales copy or blatant self-promotion disguised as educational programing will not be offered. Educational Content that is knowledge-heavy with some promotion may be offered on the Hub at the Company’s sole discretion.
KnoWEwell's editorial team and/or peer-review advisors choose whether to offer and continue to offer on the Hub the educational Content you submit. If your educational Content is not offered, it shall be destroyed by the Company.
3.9. Pricing and Refunds.
(a) Prices. Prices, subject to the limitations herein, for your memberships, multi-media Content, on other goods and services sold through the Hub are set by you.. The pricing of your multi-media Content on the Hub may not be greater than the lowest price offered on your own website or another website. You agree to provide the Company with the ability to offer your multi-media Content at a 10% and 20% discount to KnoWEwell Silver/Pathfinder and Gold/Controller (or similar upgraded memberships) members, respectively, as well as price adjust them in accordance with the World Data Bank to make them more globally affordable and accessible to KnoWEwell members outside the United States based on each member’s country’s cost of living.
(b) Refund Policy. In general, memberships and other goods and services sold through the KWW Gateway (defined below) are entitled to a refund within thirty (30) day from the date of purchase, provided such goods and services have not been fully consumed by the purchaser. The amount of the purchase price refunded may be reduced for the credit/debit card processing fees paid at the time of purchase as such amounts are not refundable from the payment processor. Unless otherwise specified in the Order Form, you may not offer a refund policy for a period of less than thirty (30) days for Customer Transactions using your Customer Gateway (defined below). KnoWEwell reserves the right to refuse refunds to purchasers who abuse this refund policy. Examples of abuse include, but are not limited to, requesting refunds for multiple courses, or requesting refunds in consecutive months.
Regardless of any other section to the contrary in this MSA, KnoWEwell does not establish, maintain, or control refunds or a refund policy for any transactions that are processed through your Customer Gateway.
The Company reserves the right to provide a refund to any purchaser at any time in its sole discretion.
3.10. Communications With Users. By using the Services, you may receive communications from Users. The Company is not responsible for these communications and shall not have any liability in connection with them. You are solely responsible for assessing and verifying the identity and trustworthiness of the source and content of any such User communications. KnoWEwell assumes no responsibility for verifying and makes no representations or warranties regarding the identity or trustworthiness of the source or content of any such User communications.
3.11. Payment Gateways. As specified in the Order Form, your Customer Transactions may be billed and collected using the following: (1) use of KnoWEwell’s billing and collection process (“KWW Gateway”), or (2) have KnoWEwell configure the billing and payment process to use your own payment gateway (“Customer Gateway”).
(a) KWW Gateway. The KWW Gateway processes credit or debit card transactions through a third-party payment processing servicer for your Customer Transactions. When using the KWW Gateway, you hereby appoint KnoWEwell as your collection agent solely for the limited purpose of accepting funds for your Customer Transactions. You agree that payment made by a purchaser through the KWW Gateway shall be considered the same as a payment made directly to you, and you will provide the purchased your membership services, multi-media Content, and other goods and services to the purchaser in the agreed manner as if you received the payment directly from such purchaser. You agree that KnoWEwell may refund the purchaser in accordance with this MSA. You agree that the payment processing fees paid to the third-party payment processing servicer are your responsibility and will be deducted from the payment made to you from the Company for each transaction. You may be charged a fee for any chargeback on third-party payment processing servicer transaction that is processed through the KWW Gateway. Payment processing fees are set by our third-party payment processing servicer and are subject to change.
You understand that the Company's obligation to pay you is subject to and conditional upon successful receipt of the associated payments from the purchaser. In accepting appointment as your limited payment collection agent, KnoWEwell assumes no liability for any of your acts or omissions.
Each purchaser acknowledges and agrees that KnoWEwell acts as your payment collection agent for the limited purpose of accepting payments from them on your behalf. Upon payment of the funds to KnoWEwell, the purchaser's payment obligation to you for the agreed amount is extinguished, and KnoWEwell is responsible for remitting the funds to you in the manner described in this MSA, which constitute KnoWEwell's agreement with the purchaser. If KnoWEwell does not remit any such amounts once successfully received from the purchaser, you will have recourse only against KnoWEwell and not the purchaser directly.
(b) Customer Gateway. Your Customer Gateway may be used to process credit or debit card transactions for your membership fees and multi-media Content sold on the Hub. These transactions, which are made through a third-party payment gateway, are outside of the scope of your relationship with the Company. You agree that your Customer Gateway service is a third-party payment service and is not a part of the Services. Payouts are distributed according to the third-party payment service's policies and procedures and are not subject to any of the Company’s policies and procedures related to payments, including the 30-day refund policy or payment hold. Furthermore, you acknowledge that:
- Transactions made through a Customer Gateway are not subject to the Company's payment processing fees.
- The Company does not control any payment processing fees that may be assessed through a Customer Gateway. Additionally, the Company does not have the access or ability to make deductions from transaction fees processed through third-party payment gateways.
- By using a Customer Gateway, you are responsible for making payments to the Company for our Services fees and Shared Net Fees.
- The Company is not a “marketplace facilitator” with respect to any transactions that occur through a Customer Gateway. By using a Customer Gateway, you further acknowledge that the Company does not have any responsibility to pay, remit, or otherwise collect or send to any relevant tax authorities any taxes owed, including sales taxes, on transactions through a Customer Gateway.
3.12. Referral and Shared Fees on Customer Transactions.
(a) Membership Referral Fees. The Company will pay you a percentage of Net Revenue from paid Hub memberships and upgrades, including upgrades from the memberships provided by the Company in Section 3.7, if any, generated by your referrals (“Membership Referral Fees”). The Company, at its sole discretion, will track your referrals using Referral Codes or tracking software. Membership Referral Fees will be earned by you on Net Revenue only after receipt of the member’s application, completion of the Company’s screening and acceptance processes, as applicable, and receipt of payment of the applicable membership fees (associated with valid, applicable Referral Code or as generated by the Company’s tracking software). The Company has the right to establish, change, replace or discontinue its product and service offerings on the Hub, membership pricing, and terms and conditions for use of its websites and Hub from time to time, in its sole business discretion. Unless otherwise stipulated in the Order Form, the Company will report and pay to your Membership Referral Fees earned for any calendar quarter, within 60 days after of the end of such calendar quarter, subject to meeting a one hundred-dollar ($100.00) minimum (amounts less than one hundred dollars shall be carried over to successful quarters until the minimum is met). Membership Referral Fees due hereunder are inclusive of Taxes. You will be responsible for all income, sales, use, value-added and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any foreign, federal, state, or local governmental entity on any Membership Referral Fees paid to you. The Company will be permitted to deduct or withhold any tax on payments to you to the extent the Company determines it is legally required to do so. You will be responsible for your own costs related to generating membership referrals.
(b) Customer Membership Fees. If your Services include membership management services from the Company and there is a charge for your membership, such Customer Net Membership Fees shall be divided between you and the Company as specified in the Order Form. “Customer Net Membership Fees” are defined as the gross fees collected by the Company for membership in your organization less the following expenses relating to or arising out of such Customer membership: (i) discounts, coupons, incentives, and promotions; (ii) cancellations, exchanges, returns and other refunds; (iii) credit card and other processing fees; and (iv) sales, use, excise, value-added and similar taxes (but not taxes on net income).
(c) Education Fees. If your Services include the sale of your educational Content using webinar, webcast, learning management, and/or similar services from the Company, such Net Education Fees shall be divided between you and the Company as specified in the Order Form. “Net Education Fees” are defined as the gross fees collected by you or the Company for the educational Content sold through the Hub less the following expenses relating to or arising out of such activities: (i) discounts, coupons, incentives and promotions; (ii) cancellations, exchanges, returns and other refunds; (iii) credit card and other processing fees; and (iv) sales, use, excise, value-added and similar taxes (but not taxes on net income).
(d) Other Shared Fees. If amounts are collected for the sale of your other goods and services through the Hub, such amounts shall be divided between you and the Company as specified in the Order Form. “Other Shared Fees” are defined as the gross fees collected by you or the Company for the sale of your goods and services through the Hub (not otherwise specified in this Section 3.12) less the following expenses relating to or arising out of such activities: (i) discounts, coupons, incentives and promotions; (ii) cancellations, exchanges, returns and other refunds; (iii) credit card and other processing fees; and (iv) sales, use, excise, value-added and similar taxes (but not taxes on net income).
(e) Payment of Shared Net Fees. The payment of the Customer Net Membership Fees, Net Education Fees, and Other Shared Fees (collectively, “Shared Net Fees”) between you and the Company is dependent upon the payment gateway utilized and the Order Form. Shared Net Fees paid to you hereunder are inclusive of Taxes. You will be responsible for all income, sales, use, value-added, excise taxes, and any other similar taxes, duties and charges of any kind imposed by any foreign, federal, state, or local governmental entity on any Shared Net Fees paid to you. The Company will be permitted to deduct or withhold any tax on payments to you to the extent the Company determines it is legally required to do so. You are responsible for your own costs related to your Customer Transactions.
(i) Payments When Using the KWW Gateway. Unless otherwise specified in the Order Form, the Company will report and pay you your portion of the Shared Net Fees approximately fifty (50) days after the end of the month in which the Customer Transaction occurred. This hold-back period is to provide for any potential losses, chargebacks, refunds, etc. For avoidance of doubt, this hold-back may result in funds being paid out more than fifty (50) days after the date of the Customer Transaction. You must earn a minimum of $100 (one hundred dollars) or more before your account is eligible for payment. Amounts earned for less than $100 will remain pending until the $100 minimum balance has been earned. You will be required to complete and submit a Form W-9.
(ii) Payment of Service Fee When Using a Customer Gateway. When your Customer Gateway is used, you will be collecting Shared Net Fees and the related taxes, if any, processing chargebacks, refunds, etc., and paying the credit card and other processing fees. You shall pay the Company’s portion of the Shared Net Fees approximately fifty (50) days after the end of the month in which the Customer Transaction occurred and provide a report detailing how the Shared Net Fees were computed and appropriate supporting documentation upon request by the Company. Net
(iii) Billing Information. The Parties are responsible for providing complete and accurate billing and contact information to each other and notifying each other of any changes to such information.
3.14. Taxes on Customer Transactions.
Laws and regulations governing the collection, reporting and remittance of sales and use taxes, value-added taxes (“VAT”), and other similar state, local, and foreign taxes are complex. This section of the MSA summarizes the Company’s practices regarding these tax requirements. Please be advised that the Company’s position on these tax matters is subject to change, without notice, and possibly with retroactive effect.
Depending on the laws of the relevant jurisdictions, Customer Transactions may be subject to tax. The rate and amount of tax imposed depends on a number of factors that the Company considers, including (without limitation):
- Your identity;
- The purchaser’s identity;
- The type of Customer Transaction, and whether or not is it taxable;
- The payment gateway used (KWW Gateway vs. Customer Gateway); and
- The shipment or delivery address of you and/or the purchaser, as applicable.
The Company may request, and you agreed to provide, additional information such as your legal name, tax identification numbers, address, phone number, e-mail address, and account information for your bank account, as necessary to fulfill the Company’s tax obligations.
(a) General Application of Sales Taxes in the United States.
The Company will determine whether a transaction on the Hub is subject to tax based on the applicable laws in each state. The Company will calculate, collect, report, and remit any sales taxes that we collect directly from purchasers to the state on whose behalf the tax is imposed. Certain states may also require you to submit your own tax filings or information returns.
The tax rate applied to your Customer Transactions will be equal to the combined applicable state and local tax rate, which shall be determined by the Company based on the information provided by you and/or the purchaser, as applicable.
For sales tax purposes, KnoWEwell may be deemed to be a “marketplace facilitator” for third-party sales transacted through the KWW Gateway. A “marketplace facilitator” is generally defined as the entity that owns or operates the marketplace (platform), and directly or indirectly processes transactions (including the sale of physical property, digital goods, and services) on behalf of third-party sellers (“marketplace sellers”). In the United States, marketplace facilitator laws and regulations shift the sales tax collection, reporting, and remittance obligations from marketplace sellers (you) to the marketplace facilitator (the Company). Therefore, where the Company is deemed a marketplace facilitator, the Company is responsible for calculating, collecting, remitting, and refunding sales taxes on taxable products and services that are sold through the KWW Gateway.
WHEN USING YOUR CUSTOMER GATEWAY, YOU ARE SOLELY RESPONSIBLE FOR CALCULATING, COLLECTING, REPORTING, REMITTING, AND REFUNDING SALES TAX.
It is possible that certain states will require additional marketplace facilitator collection (“Marketplace Facilitator Collection”) under new or existing laws. At its sole discretion, the Company shall determine when it will undertake Marketplace Facilitator Collection with respect to a jurisdiction and you authorize the Company to take all actions necessary to undertake such Marketplace Facilitator Collection. You agree to reasonably cooperate with the Company and timely provide all information necessary for the Company to accurately calculate, collect, report, and remit such taxes including, but not limiting to, complying with the other provisions of this section. The Company shall have sole discretion to specify the rate and taxability applied to the products and services sold.
You also understand and agree that the Company may undertake Marketplace Facilitator Collection for transactions in jurisdictions in which you do not otherwise have a substantial nexus. Notwithstanding any other provision of this MSA and Order Form, you understand and agree that KnoWEwell will not remit to you any taxes collected as part of Marketplace Facilitator Collection. Without limiting your obligations or liability under any other provision of this MSA, you agree to indemnify and hold harmless the KnoWEwell Parties for any taxes, penalties, or interest on your Customer Transactions asserted against the Company by a jurisdiction with respect to Marketplace Facilitator Collection.
The Company will not collect sales taxes in the following circumstances:
- Customer Gateway Sales: You must calculate, collect, report, and remit sales taxes yourself.
- Sales of your goods and services outside the Hub, this MSA and Order Form: You must calculate, collect, report, and remit sales taxes yourself.
- Tax Exempt Organization: Purchasers from tax-exempt organizations who purchase products or services on the Hub will be required to pay sales taxes on the initial purchase. Thereafter, the purchaser should submit a refund request to accounting@KnoWEwell.com. The refund request should include a copy of the purchase receipt showing the sales tax paid, as well as a copy of the purchaser’s valid tax identification number, a valid tax ID/tax certificate or other documentary proof issued by an appropriate taxing authority confirming that the Company should not charge tax to the purchaser in accordance with the applicable tax laws. The Company will issue a refund once the documentation has been reviewed and approved.
(c) Additional Sales Tax Considerations.
The Company’s failure to collect, report, and remit taxes to any governmental authority may not relieve you or the purchaser from sales tax obligations or liabilities within a state where applicable products and services are taxable. In certain states, a marketplace seller (you) is still responsible for collecting and remitting sales and use taxes on sales not made on the marketplace facilitator platform. Additionally, the marketplace seller (you) may remain liable for the sales tax if the marketplace facilitator (KnoWEwell) can demonstrate that: (i) it has made a reasonable effort to obtain accurate and complete information from an unrelated marketplace seller about a retail sale, and (ii) the failure to remit the correct amount of tax was due to incorrect or incomplete information provided to the marketplace facilitator by the unrelated marketplace seller. KNOWEWELL RECOMMENDS YOU CONSULT WITH A TAX ADVISOR REGARDING THE APPLICABILITY OF THESE RULES TO YOUR INDIVIDUAL CIRCUMSTANCES.
(d) General Application of Taxes Outside of the United States.
You and the purchaser expressly acknowledge Customer Transactions outside the United States are formed directly between you and the purchaser. The Company is not a party to that such transactions nor sets any of its terms. You are the supplier of the goods and services being sold, the company is not responsible for interactions between you and the purchaser and only provides technical means through which Customer Transactions occur outside the United States. Therefore, except as expressly provided in the Order Form, you will be solely and fully responsible to collect, report, and remit the correct amount of tax (if any) to tax authorities for charges to the purchasers for Customer Transactions outside the United States. KNOWEWELL RECOMMENDS YOU CONSULT A TAX ADVISOR TO ASSIST WITH DETERMINING THE TAX REQUIREMENTS RELATING TO YOUR CUSTOMER TRANSACTIONS OUTSIDE THE UNITED STATES.
Some countries provide for special tax laws making the Company instead of you responsible for the tax obligations pertaining to Customer Transactions outside the United States while using the KWW Gateway. In this regard, please note that the tax laws of the countries where purchasers reside generally dictate whether such a special tax law applies making the Company instead of you responsible for tax.
Therefore, in the event you have Customer Transactions in multiple countries, different tax obligations may apply to you, depending on the countries where the individual purchasers reside.
PLEASE NOTE THAT KNOWEWELL IS COLLECTING, REPORTING, AND REMITTING TAXES ON YOUR CUSTOMER TRANSACTIONS OUTSIDE THE UNITED STATES ONLY IN SPECIFIC SITUATIONS FOR WHICH THE COMPANY ADVISES YOU. IN ALL OTHER SITUATIONS, YOU ARE SOLELY RESPONSIBLE FOR COLLECTING, REPORTING, AND REMITTING TAXES ON CUSTOMER TRANSACTIONS OUTSIDE THE UNITED STATES AND SHOULD CONSULT WITH YOUR TAX ADVISOR.
PLEASE NOTE THAT WHERE YOU ARE USING A CUSTOMER GATEWAY, YOU ARE ALWAYS SOLELY RESPONSIBLE FOR TAX, REGARDLESS OF THE COUNTRY OF RESIDENCE OF THE PURCHASER.
(e) Tax Indemnification.
Notwithstanding any provision in the MSA to the contrary, you shall indemnify, defend, and hold the KnoWEwell Parties harmless from and against all claims, demands, suits or other proceedings, and resulting loss, damage, liability, costs, interest, and expenses (including reasonable attorneys’ and accountants’ fees) brought by any third party or governmental claim or demand that involves, relates to, or concerns federal, state, county, city, foreign or other tax obligations or amounts due or owing under any tax regulation, law, order or decree arising out of your Customer Transactions. The Company reserves, and you grant to us, the right to assume exclusive defense and control of any matter subject to indemnification by you hereunder. All rights and duties of indemnification that are set forth herein shall survive termination of this MSA and Order Forms.
3.15. Charitable Contributions. If you are a qualified non-profit organization, you may be eligible to receive a share of the Company’s annual charitable gifts if set forth in the Order Form, which are expected (in the aggregate for all such donations) to be approximately one percent (1%) of the Company’s total net revenue from all sources. The Company may at its sole discretion donate a specific dollar amount or percentage of the available annual charitable gift to you. For avoidance of doubt and to ensure the independence of the you and Company, this Section 3.15 is non-binding, and you have no third party right or expectancy hereunder.
4. SERVICES FEES AND PAYMENT; OTHER OBLIGATIONS
You are responsible for providing complete and accurate billing and contact information to the Company and notifying the Company of any changes to such information.
5. DATA AND CONTENT
To the extent you do not obtain consent to use your Users’ Data or are otherwise unable to provide it to the Company in an electronic format, your Users may be required to provide payment information, such as credit card information, during the registration and checkout process even for zero-dollar transactions as a means to validate their identity.
5.2. Content Promotion. The Company may adapt and publish Content you provide as “sponsored content” on the Hub, in accordance with the Content license described in Section 7.2. In its sole discretion, the Company may choose not to publish the Content you provide. Content will be sourced to you.
6. PROPRIETARY RIGHTS
7. INTELLECTUAL PROPERTY RIGHTS
7.1. KnoWEwell’s Intellectual Property Rights. The Company’s intellectual property rights and our responsibilities to protect them are defined in the Hub’s Terms and Conditions. Your submission of Content and use of the Services under this MSA do not give you additional rights in the Hub or ownership of any Intellectual Property Rights associated with the Hub.
Subject to your compliance with and limitations set forth in this MSA and Oder Forms, KnoWEwell grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the Hub and the Services.
7.2. Customer’s Intellectual Property Rights. Any Content, Data, information, or materials originated by you that you submit to the Hub is yours and remains yours. The Company does not claim any Intellectual Property Rights over your Content by virtue of your use of the Hub and/or the Services.
Customer is responsible for the Material provided to Company, including any claims of infringement by third parties, demands for licensing of the Material or a subsection thereof, or any other demands or claims stemming from the Material, whether before the date of this Agreement, during the duration of this Agreement, or after the expiration of this Agreement. Customer hereby indemnifies Company, Providers, and Sublicensees from any claims or demands stemming from Company’s use, exploitation, or publication of the Material, Customer’s biography, or images of Customer, Provider’s use of Customer biography, images, or materials for marketing, or Sublicensee’s use pursuant to the sublicense.
By submitting Content to the Company in any media or format, now known or hereinafter devised, whether physical, electronic, digital, analog, or otherwise, you represent and warrant to the Company that you own or have all necessary rights to the Content you submit, including images, and any associated Trademarks therein, and grant to the Company the rights granted herein. The forgoing representation includes, but is not limited to, a representation and warrant that you own or have the necessary rights (including any necessary releases) to grant all rights granted below in relation to any persons, places, or intellectual property included in any Content that you submit. In addition, if you submit any Content that is protected by copyright, you represent that you have obtained any necessary permissions or releases from the applicable copyright owner.
The Materials, or any use thereof, submitted by Customer shall not violate any law and shall not infringe upon or violate the rights of any Person, including, without limitation, contractual rights, copyrights, intellectual property rights, rights of publicity and rights of privacy, and the rights against libel, defamation and slander; and that each personnel list furnished hereunder is and shall be true, accurate and complete.
Customer has no oral or written obligations contracts, or agreements of whatever nature entered into prior to the signing of this Agreement which are now in force and binding, and which would in any way interfere with carrying out this Agreement to its full intent and purpose, or that may subject Customer or Company to any lawsuit, claim, demand, injunction, order or liability of any kin. Further, during the Term,
- Customer shall not enter into any agreement which would interfere with the full and prompt performance of Customer’s obligations hereunder; and
- Except as provided otherwise in this Agreement, Customer shall not enter into any exclusive agreement or render any services, that would limit Company’s use of any Materials.
- Customer is not subject to any non-compete agreement or similar restriction that may subject Company to any lawsuit, claim, demand, injunction, order or liability of any kind.
- Customer has the qualifications and ability to perform the Customer Services in a professional manner, including satisfying the requirements of Company to the industry standard or higher.
- The use of Customer's name(s), likeness(es) and biography(ies) shall not infringe upon the rights of any person or entity, and that Customer has conducted or caused to be conducted a professional a trademark search to ensure the availability of the name(s);
- Except as expressly provided herein, Company shall not be required to make any payments of any nature for, or in connection with, the acquisition, exercise or exploitation of rights by Company pursuant to this Agreement except as specifically provided in this Agreement. Customer shall be solely responsible for (i) all royalties payable to any outside third parties whose material may be recorded or used by Customer and released by Company; (ii) all Special Packaging Costs; and (iii) all other costs, if any, which are in excess of the fixed amounts provided herein which Company has agreed to pay. All of the amounts set forth in this Provision shall be paid by Customer promptly or reimbursed by Customer if paid by Company. Such amounts may also be deducted from all monies becoming payable to Customer by Company under this Agreement or otherwise to the extent to which they have not been paid or reimbursed by you as provided.
- Customer’s license of rights to Company shall permit Company the right to exploit its rights under this Agreement in all manner hereunder free from adverse claim and without any obligation to make any payment of any nature to any person or entity that is not a Party to this Agreement.
By submitting Content to the Hub, you hereby grant the Company a worldwide, limited, non-exclusive, royalty-free, license to use such Content and associated Copyright(s) and Trademark(s) in furtherance of the Services the Company is providing to you. You reserve the right to monitor and approve all uses of your Content and associated Trademarks by the Company. Except for Content related to Customer Transactions (i.e., educational courses and training and healing programs offered for sale), the provisions of this Section 7.2 will survive termination and be perpetual and irrevocable with respect to your Content to the extent that the Company has incorporated such Content into the Hub prior to the date of expiration or termination of this MSA and Order Form.
Nothing in this MSA shall restrict other legal rights the Company may have to the Content, for example under Company subsidiaries and other licenses.
You agree to indemnify, defend, and hold harmless the KnoWEwell Parties from and against any claim, liability, cost, and expense arising in connection with your infringement, violation or alleged infringement or violation of the Intellectual Property Rights of a third party or violation of applicable law with respect to your submitted Content and associated Trademarks.
We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media. The Company reserves the right to remove or modify Content for any reason, including Content that the Company believes violates this MSA, terms and conditions incorporated by reference, or our policies.
You acknowledge and agree that:
- unless you specify that the Content you submit may only be viewed by members of the private community identified in the Order Form, any Content you submit may be viewed by our members and the general public and will not be treated as private, proprietary, or confidential. Further, to the extent permitted under applicable law, you waive and release and covenant not to assert any moral rights that you may have in any Content submitted by you.
- each KnoWEwell member and User is granted a non-exclusive license to access Content you submit to the Hub and to use, reproduce, display, and perform such Content as permitted through the functionality of the Hub, provided each KnoWEwell member and User has paid the requisite fees, if applicable.
- KnoWEwell may review the Content for any reason, including compliance with this MSA, the Hub’s Terms and Conditions, and our policies, but KnoWEwell has no obligation to review anything you submit.
- submitting Content to the Hub does not in any way mean that KnoWEwell has certified, approved, or endorsed you or your Content and you will make no representations to the contrary to any party at any time.
- you are responsible for and own, or have the rights to use, all of your Content.
Customer’s IP that is not work product. During the course of services, Customer may use intellectual property that Customer owns or has licensed from a third party. This is called “background IP”, and may include pre-existing code, type fonts, properly-licensed stock photos, web application tools, licensed photos, and licensed videos. The Parties acknowledge You, the Customer, are not transferring rights to any background IP to Company, but You are licensing Company the right to use the background IP, and to sublicense the IP, to market, sell, and support Company’s products and services. Company may use this background IP for Customer’s Materials worldwide and free of charge. However, Company shall not have the right to assign any rights in the background IP, and cannot sell or license the background IP separately from its products or services. You cannot rescind this grant of rights during the Term of this Agreement.
Likeness Rights. Upon execution of this agreement, You authorize Company and Company's Licensees to have a perpetual right, without any liability to any Person, to use and to authorize other Persons to use Your name, likeness, and biographical material, in any marketing materials for the sale, promotion and advertising of Your Materials by Company, in any multimedia product, or audiovisual product, in any manner. Company shall have a right to sublicense the right without further obligation to You.
Any other Content submitted by you to KnoWEwell is defined and governed by the Hub’s Terms and Conditions.
7.3. Trademark Licenses. Each Party (the “Licensor”) hereby grants to the other Party (the “Licensee”) the limited, worldwide, non-exclusive, non-transferable, non-sublicensable right and license to use the Licensor’s Trademarks, solely to the extent necessary for the Licensee to exercise its rights and perform its obligations under this MSA and Order Form(s); provided, however, that such right and license may be made subject to terms and conditions specified in writing by the Licensor with respect to any particular Trademarks, which terms and conditions may be updated from time to time by written notice to the Licensee. Without limiting the foregoing, each Party will comply with the branding and usage guidelines of the other Party as in effect from time to time. The Licensor reserves the right to monitor and approve all use of its Trademarks by the Licensee hereunder.
8. COPYRIGHT AND TRADEMARK VIOLATIONS
The Company does not authorize copyright infringing activities and infringement of Intellectual Property Rights, including Trademark violations, on the Hub, and the Company will remove Content if properly notified that such Content infringes on another's Intellectual Property Rights (see the section titled “Copyright and Trademark Complaints” in the Hub’s Terms and Conditions). KnoWEwell reserves the right to remove Content without prior notice.
9. CONFIDENTIALITY; DATA PRIVACY AND SECURITY
9.1. Confidential Information. Each Party (the “Receiving Party”) will receive or have access to Confidential Information created by or belonging to the other Party (the “Disclosing Party”) as well as Confidential Information created by or belonging to third parties that the Disclosing Party is required to maintain as confidential. A Party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other Party; (b) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (c) is lawfully disclosed to the other Party by a third party without restriction on the disclosure; or (d) is independently developed by the other Party.
9.2. Restrictions. The Receiving Party will maintain the confidentiality of the Confidential Information regarding, or received from the Disclosing Party with at least the same level of care with which it maintains its own Confidential Information, and not less than a reasonable level of care, and will neither use such information (except for the purposes contemplated by this MSA and Order Forms) nor disclose it to any third party who does not have a bona fide need to know such information for the purposes contemplated by this MSA and Order Forms. Notwithstanding the foregoing, a Party will be entitled to disclose Confidential Information to the extent it is required to do so in the reasonable opinion of its legal counsel pursuant to applicable law and will, to the maximum extent legally permissible, provide prior notice of such expected disclosure to the Disclosing Party to enable the Disclosing Party to seek legal remedy, and will only disclose such Confidential Information as it is legally required to disclose. If the Company is compelled by law to disclose your Confidential Information as part of a civil proceeding the Company is not a Party to, you agree to reimburse the Company for its reasonable cost of compiling and providing secure access to such Confidential Information.
9.3. Return or Destruction. Upon termination or expiration of this Agreement, the Receiving Party will, at the written request of the Disclosing Party, return to the Disclosing Party or destroy (and confirm such destruction in writing) all Confidential Information of the Disclosing Party, without maintaining any copies thereof; provided that the Receiving Party will not be required to purge any digital backups maintained in the ordinary course of business and will be permitted to retain an archival copy of the Disclosing Party’s Confidential Information to the extent required by applicable law or the Receiving Party’s bona fide records retention policies.
9.4. Remedies. Customer stipulates that a breach or threatened breach of any of the provisions set forth in Section 9 will diminish the value of Company and will cause irreparable and continuing injury to Company for which an adequate legal remedy will not exist. Accordingly, Customer stipulates that, if it breaches or threatens to breach any of those restrictive covenants, Company will be entitled to the following remedies:
a) the entry, by a court having jurisdiction, of an order granting specific performance or injunctive relief, upon the posting of any requisite bond and the filing with the court of an appropriate pleading and evidence specifying the obligations breached by Customer; and
b) an accounting of and recovery from Customer of all revenue, compensation or other consideration that Customer or any third-party gains from Customer’s violating or breaching the covenants or restrictions.
c) Nothing in this Agreement shall be construed as prohibiting Company from pursuing any other remedies available to it for a breach or threatened breach of the restrictive covenants in Section 9 of this Agreement.
9.4. Data Privacy and Security. Each Party is required to implement and maintain administrative, physical, and technical safeguards to protect against the unlawful or unauthorized collection, use, retention, or disclosure of, or access to, personal data, except as reasonably necessary to perform under this MSA and Order Forms and in accordance with all applicable law.
10. WARRANTIES AND DISCLAIMERS
THAT THE COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, DATA BREACHES AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES AND THE COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF ANY OF THE FOREGOING.
12. LIMITATION OF LIABILITY
13. COMPLIANCE WITH LAWS; RELATED MATTERS
13.1. Compliance with Laws. Each Party will ensure that its business activities and practices in connection with, relating to or arising out of this MSA and Order Forms, including, as applicable, software development, content development and publication, sales, marketing, licensing and distribution activities, comply with all applicable laws, regulations and third-party policies, including, without limitation, regarding data privacy (e.g., HIPAA, applicable state law, GDPR), online advertising, email marketing (e.g., CAN-SPAM Act), and the like, as in effect from time to time.
13.2. No Infringement of Third-Party Rights. Each Party hereby represents and covenants that (a) all Content or other intellectual property that it provides to the other Party or through the Services, whether created prior to or after the Subscription Start Date, does not and will not violate or infringe upon any laws or the Intellectual Property Rights or other rights of any third party (including, for example, copyrights, trademarks, privacy or other personal or proprietary rights), (b) all such Content or other intellectual property is not libelous or otherwise illegal, and (c) it has the right and will have the right to use and, if applicable, post and license use of all such Content as contemplated hereby.
13.3. Social Media Restrictions. You will not use the Company’s Trademarks (or any variations or misspellings thereof), without the prior written consent of KnoWEwell, as keywords on any paid search engines or social media sites, including, without limitation, Google, Yahoo/Bing, Twitter, and Facebook, or as part of any domain names, social media accounts or page names.
13.4. Paid Search Policy. When bidding on keywords on any paid search engines or social media site, including without limitation, Google, Yahoo/Bing, Twitter and Facebook, you are prohibited from: (1) bidding on any of the Company’s Trademarks, or any variations and misspellings thereof without KnoWEwell’s prior written approval; (2) bidding on keywords containing the Company’s Trademarks; (3) outranking the Company’s internal paid search ad on any keywords; and (4) using KnoWEwell.com or any of the Company’s other domain names.
13.5. Websites. Each Party is solely responsible for the development, operation and maintenance of its own websites and social media accounts. Each Party is responsible for the content that appears on its websites and social media accounts. Neither party shall have any responsibility for the development, operation and maintenance of the other Party’s websites and social media accounts, except as provided for in the Order Form.
14. TERM AND TERMINATION
the other Party becomes insolvent or admits its inability to pay its debts generally as they become due, becomes subject to any proceeding under any domestic or foreign bankruptcy or insolvency law, or makes a general assignment for the benefit of creditors
Termination by Company for Cause. This Agreement may be terminated by Company “for cause” in any of the following circumstances, but not limited to:
a) Customer has committed any act or acts of fraud or misappropriation, including intentionally misstating his or her involvement with the development of Intellectual Property rights;
b) Customer refuses to follow the directions of Company in connection with providing Company with Materials described herein (provided that compliance therewith by Customer would not subject Customer to criminal liability);
c) Customer has been convicted, pled guilty to, or pled no contest to a crime in any state or federal court within the United States, or has been convicted, pled guilty to, or pled no contest to any of the above;
d) Customer has engaged in any illegal or inappropriate activity which, in the sole and absolute discretion of Company, reflects adversely upon, or has an adverse impact on, Company;
e) Customer’s ability to perform the Customer Services should be materially impaired, for a period of sixty (60) days or an aggregate period of ninety (90) days during any one (1) year period;
f) Customer fails to fulfill any of its other material obligations under this agreement, resulting in a material breach.
Termination by Customer for Cause. This Agreement may be terminated by You “for cause” in any of the following circumstances:
a) Company fails to issue a payment to Customer under the terms of Section 3.12 (e,ii)
b) Company fails to fulfill any of its other material obligations under this agreement, resulting in a material breach;
c) Company refuses, without cause, to allow You to fulfill the Customer Services or provide Materials;
d) However, no failure by Company to perform any of its material obligations under this Agreement shall be deemed a material breach of this Agreement until You have given Company written notice of such breach and such breach has not been corrected within thirty (30) days after the giving of such notice.
Upon termination, except as expressly set forth or permitted herein: (a) each Party’s rights and obligations under this MSA will immediately terminate; (b) each Party will immediately discontinue all use of the other Party’s Intellectual Property Rights and Trademarks under this MSA; (c) all accrued rights and liabilities of the Parties at the date of termination will continue in force.
15. NOTICES, GOVERNING LAW AND JURISDICTION
will be governed by, and construed and enforced in accordance with, the laws of the State of New Jersey, United States of America, without regard to any conflict of law principles that would result in the application of the laws of any other state or jurisdiction. The Parties agree that any disputes among them arising out of or in connection with this or any course of conduct, course of dealing, statements (whether verbal or written), or actions of either Party, will be resolved by final and binding arbitration in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). The location of the arbitration will be in Somerset County in the State of New Jersey. The Parties agree to abide by all decisions and awards rendered in the arbitration. Such decisions and awards rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection and enforcement. All such claims or disputes will be settled in this manner in lieu of any action at law or equity; provided, however, that nothing in this Section 15.1 will be construed as precluding the bringing of action for preliminary injunctive relief or other preliminary equitable relief pending conclusion of an arbitration on the merits. The arbitrator(s) will not have the right to award punitive damages or speculative damages to either Party and will not have the power to amend this . The arbitrator(s) will render its decision in a reasoned written opinion. Both the existence and subject matter of the arbitration will be kept confidential by both Parties and the arbitrator(s). The Parties will each bear their own legal and expert fees and expenses but will share equally the costs of the arbitration (i.e., the AAA and arbitrator fees and costs) as they are incurred. The arbitrator(s) will have the right, in its discretion, to award to the substantially prevailing Party all or part of the costs of the arbitration (i.e., the AAA and arbitrator fees and costs), as well as the reasonable legal and expert fees and expenses incurred by such Party in connection with the arbitration and any action for preliminary injunctive or other equitable relief as contemplated above.
Either Party must initiate a cause of action for any claim(s) arising out of or relating to this MSA or an Order Form and its subject matter within six (6) months from the date when the Party knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
The Parties are and will remain independent contractors. Nothing contained herein will be deemed to create an employment, agency, joint venture, sales representative, franchise, fiduciary, or partnership relationship between the Parties or any of their agents or employees, or any other legal arrangement that would impose liability upon one Party for the act or failure to act of the other Party. Neither Party will make any representations or warranties on behalf of the other Party or bind or oblige the other Party by contract or otherwise, nor will it hold itself out as having any such power or authority. Neither Party nor its employees will be entitled to any of the benefits that the other Party may make available to its employees, such as group insurance or retirement benefits.
Neither Party will be liable for any loss or damage sustained by the other Party because of any delay in performance or noncompliance under this that results from an act, event, omission or cause beyond the nonperforming Party’s reasonable control and without its fault or negligence, including but not limited to, strikes, lockouts, civil commotion, riots, wars, fires, explosions, floods, earthquakes, embargoes, , pandemics, inability to obtain suitable raw material, equipment, fuel, power, components or transportation, or acts of civil or military authority; provided that the nonperforming Party must promptly provide notice of the force majeure condition to the other Party and use commercially reasonable efforts to remove or work around the condition. If any such delay or noncompliance continues for more than 30 days, the Parties will in good faith try to reach an agreement on a modification of the terms of this MSA and applicable Order Forms to permit its further performance. If no such agreement is reached within an additional 30-day period, then either Party will thereupon have the right, by written notice to the other Party, to terminate this MSA and Order Forms without penalty.
legal or equitable right, benefit, or remedy of any nature whatsoever
The waiver by either Party of any breach of any provision hereof by the other Party will not be construed to be a waiver of any succeeding breach of such provision or a waiver of the provision itself
If any clause or portion thereof in this MSA or Order Forms is for any reason held to be invalid, illegal, or unenforceable, the same will not affect any other portion of this MSA or Order Forms, as it is the intent of the Parties that this MSA and Order Forms be construed in such fashion as to maintain their existence, validity, and enforceability to the greatest extent possible. In any such event, this MSA and Order Forms will be construed as if such clause or portion thereof had never been contained in this Agreement or Order Forms, and there will be deemed substituted therefor such provision as will most nearly carry out the intent of the Parties as expressed in this MSA and Order Forms to the fullest extent permitted by applicable law.
. Each Party must promptly notify the other Party of any assignment or transfer under the provisions of this Section 16.7.
Each Order Form to which this MSA is incorporated may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute the same document. Counterparts may be signed and delivered by email, facsimile, or electronic signature, each of which will be binding as if it were an original manually signed document.