Master Services Agreement

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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.

By signing an Order Form to you acknowledge and represent that you (i) are a individual or provider/practitioner member in good standing on the Hub and expressly acknowledge that you have read and agree to the Hub’s Terms and Conditions, including, but not limited to, the terms pertaining to posting or providing Content, and the Company’s Privacy Policy, and agree to be bound by such terms and policies and updates and modification thereto, all of which are hereby incorporated by reference, (ii) have read this MSA, (iii) understand the MSA and accept and agree to be bound by terms herein, (iv) are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this MSA, and to abide by and comply with them, (v) if you are accepting this MSA on behalf of a legal entity, that you have the right and authority to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this MSA, and to obligate such legal entity to abide by and comply with them, and (vi) agree to comply with all laws and regulations applicable to you, to the use of the Hub, and/or the Internet.

To the extent of any conflict or inconsistency between the Hub’s posted terms and conditions and this MSA and Order Form with respect to the Services described herein, the terms of the Order Form, then this MSA shall prevail. The definition of capitalized terms not defined herein take their definition from the 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).

 

  1. DEFINITIONS

“Administrator(s)” or “Admin(s)” means any person authorized by you to access the administration panel of the Services and to engage with and manage a subset group of the End-Users provided such person agrees to be bound by the terms and conditions of this Agreement.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a Party hereto.

“Confidential Information” means 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.

“Content” means 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.

“Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Credentials” means both email (“Email”) and associated password (“Password”) of Users created either directly through the Services or available through single sign on functionality where relevant.

“Customer Transactions” means your goods and services sold through the Hub, including, but not limited to, the sales of memberships in your organization and sales of your educational multi-media Content.

“Data” means all personal identification electronic data or information input or submitted by you or Users to the Services but excluding Content.

“End-User(s)” means a single individual whose Data is stored by you in the Services.

“Hub” or the “Regenerative Whole Health® Hub” means the websites and online and mobile applications community and marketplace operated by the Company.

“Internet” means the global system of interconnected computer networks, which are located in any region of the world.

“Intellectual Property Rights” means 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

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.

“Net Revenue” means 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).

“Order Form(s)” means the ordering document(s) for placing an order with the Company for Services.

“Party” means the Company or Customer when referred to individually and “Parties” when referred to collectively.

“Referral Codes” means 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).

“Services” means the software, administrative, and other business service(s) provided by the Company to you as specified in the Order Form(s).

“Subscription” means you agreeing to make a payment to the Company to have access to and utilize the Services for a specified period of time; a Subscription shall begin on the Subscription Start Date and end on the Subscription End Date as set forth in the applicable Order Form.

“Taxes” means any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction.

“Trademarks” means trademarks, trade names, trade dress, service marks, and logos owned or in-licensed by a Party.

“User(s)” means End-Users, Administrators, and learning course, training, podcast, webinar, webcast and other multi-media attendees on the Hub who are not End-Users.

“you” or “your” or “Customer” refers to the individual or entity that has ordered Services from the Company by executing the Order Form that incorporates this MSA. “you”, “your” or “Customer” shall only include those Affiliates or business units of Customer identified in an Order Form and shall not include any Affiliates or business units resulting from merger or acquisition.

2. APPLICABILITY OF AGREEMENT

2.1. Order Forms. This MSA is valid for each Order Form in which this MSA is incorporated into by reference.

3. RIGHTS GRANTED AND SERVICES

3.1. Rights Granted. Upon the Company’s acceptance of your Order Form, you have the nonexclusive, non-assignable, worldwide limited right to use the Services set forth in an applicable Order Form and subject to the terms and limitations set forth in the applicable Order Form, this MSA and any other agreements referenced herein.

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.

3.2. Add-ons to the Subscription. Additional Users or add-on features in the Services may be purchased during an unexpired Subscription term at the pricing set forth in the relevant Order Form, prorated for the remainder of the Subscription term in effect at the time the add-ons are purchased. Such add-ons shall terminate on the same date as the Subscription.

3.3. Restrictions. You shall not (a) make the Services available to anyone other than Users or allow the Services to be utilized in excess of the limitations set forth in the Order Form or this MSA; (b) directly or indirectly sell, resell, rent, sublicense, distribute, transfer, or lease the Services, except as necessary for the Customer’s Users to access the Services; (c) modify, disable, attempt to circumvent, or otherwise interfere with or disrupt the integrity, performance, security, copy protection, or other similar feature of the Services or third-party services or data contained therein; (d) copy, reproduce, display, publish, modify, edit, revise, alter, translate, syndicate, consolidate, or make derivative works of the Services; (e) reverse engineer, disassemble or reverse compile the Services; (f) remove any proprietary notices, labels or marks embedded in or displayed with the Services; or (g) access or use the Services in order to: (i) design, develop, build, market or support a competitive product or service; (ii) design, develop, build, market or support a product using similar ideas, features, functions or graphics of the Services; or (iii) copy any ideas, features, functions or graphics of the Services. You may not access the Services if you are a Company competitor. In addition, you may not access the Services for purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes.

3.4. Use of the Services. You agree not to use or permit use of the Services, including uploading, emailing, posting, publishing, or otherwise transmitting any Content, by anyone, including all Users, for any purpose that may (a) threaten, menace or harass any person or cause damage or injury to any person or property; (b) involve the publication of any material that is offensive, abusive, false, defamatory, harassing or obscene; (c) violate privacy rights or promote bigotry, racism, hatred or harm; (d) constitute unsolicited bulk e-mail, “junk mail”, “spam”, or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights; (e) harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications; (f) use automated scripts to collect information from or otherwise interact with the Services; (g) send or store infringing, obscene, vulgar, pornographic, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or that violates third party privacy rights; (h) use the Services to send or store material containing Malicious Code; (i) use the Services to express political views or actions, as determined by the Company in its sole discretion; or (j) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to the Company under the Order Form and this MSA, the Company reserves the right to remove or disable access to any Content that violates the foregoing restrictions. The Company shall have no liability to you in the event the Company takes such action. You agree to defend and indemnify the KnoWEwell Parties against any claim arising out of a violation of your obligations under this Section 3.4.

3.5. Access and Maintenance. The Company shall: (i) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime for maintenance of more than 15 minutes (for which the Company shall give reasonable notice via the Hub, Services, or email) and which the Company shall schedule, to the extent practicable, during non-peak usage hours; and (ii) provide the Services only in accordance with applicable laws and government regulations. The Services supports the latest two (2) major versions of the supported web browsers as set forth in the Company’s online help desk.

3.6. Provision of Services. The Company will provide those Services, including marketing, promotion, multi-media educational content publishing and hosting, membership management, training, migration support, administration, and other services, in the form, type, manner, amount, and location as set forth in the Order Form. The Company will provide the Services in a manner in accordance with applicable industry standards and will complete such Services in accordance with the schedule set forth in the Order Form, subject to your performance of your responsibilities. This MSA and the applicable Order Form will govern the Company’s provision of Services.

3.7. KnoWEwell Membership. The Company may provide membership on the Hub in the type(s) set forth in the Order Form to your constituents as defined in the Order Form. 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:

  1. Transactions made through a Customer Gateway are not subject to the Company's payment processing fees.
  2. 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.
  3. By using a Customer Gateway, you are responsible for making payments to the Company for our Services fees and Shared Net Fees.
  4. 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 as set forth in the Order Form (“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. Overdue Shared Net Fees owed by you to the Company shall be subject to Sections 4.4. (Overdue Charges), 4.5. (Suspension of Services and Acceleration), and 4.6. (Payment Disputes). 

(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.

(b) Exceptions.

The Company will not collect sales taxes in the following circumstances:

(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

4.1. Billing Information. 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.

4.2. Services, Onboarding, and Other Fees. Except for the Membership Referral Fees and Shared Net Fees provided for in Section 3.12 and unless otherwise provided in an applicable Order Form, the Company shall invoice you in advance for any Services you purchase. Fees for onboarding Services will be invoiced and due at the date of the Order Form. Annual fees and annual minimum fees are invoiced on the date of the Order Form and on the anniversary date of the Order Form thereafter. Per user and similar fees shall be invoiced monthly after exceeding previously invoiced minimums. Recurring services fees shall be invoiced in advance. Renewal of any Services at the end of any Subscription Term are invoiced on the anniversary date of the beginning of each Subscription Term. All other fees shall be billed monthly for services as incurred. You shall reimburse the Company for reasonable food, lodging, travel, and incidental expenses incurred by the Company's employees and agents in conjunction with any on-site Services ordered by you. If such Services are performed at the Company's premises, such expenses incurred by your employees shall be borne by you.

4.3. Payment Terms. Unless stated otherwise in the Order Form, you shall pay all amounts within fifteen (15) days of the invoice date without setoff, counterclaim, or deduction, except for amounts disputed in good faith. All payment obligations due under the applicable Order Form are non-cancelable and the fees paid are non-refundable.  Checks shall be made payable to KnoWEwell, P.B.C. If you wish to pay by debit or credit card, your payment will be subject to a 2.9% processing fee (this fee is subject to change based on fees charged by third-party processors).

4.4. Overdue Charges. If any fees are not received from you by the due date, then at the Company's discretion, such fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

4.5. Suspension of Services and Acceleration. If any amount owing by you to the Company is more than thirty (30) days overdue, the Company may, without limiting or waiving the Company's other rights and remedies, accelerate your unpaid fee obligations so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full. The Company will give you at least seven (7) business days’ prior notice that your account is overdue, in accordance with Section 15.2 (Manner of Giving Notice), before suspending the Services. Further, you agree a pre-payment by you will be required to restart any such suspended Services. In addition to the foregoing, you agree the Company shall be entitled to recover all reasonable costs of collection (including agency fees, attorneys’ fees, expenses, and costs) incurred in attempting to collect payment from you.

4.6. Payment Disputes. The Company shall not exercise the Company's rights under Section 4.4 or Section 4.5 if you are disputing, reasonably and in good faith, the applicable charges and are cooperating diligently to resolve the dispute. The Company must be notified of such dispute within fifteen (15) days of Customer’s receipt of the invoice.

4.9. Taxes. Unless otherwise stated, the Company's Services fees do not include any Taxes. You are responsible for paying all Taxes associated with your purchases of Services. If the Company has the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide the Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, the Company is solely responsible for taxes assessable against it based on the Company's income, property, and employees.

5. DATA AND CONTENT

5.1. Data. You hereby grant to the Company, and any third party the Company has contracted with to provide storage and processing services, a non-exclusive, non-transferable license to store, process and use your Data and your Users’ Data for the purpose of providing the Services and for the purpose of generating Analytical Data as described at Section 5.2 below. You shall (a) be responsible for obtaining consent from the Users as necessary to store, process and use your Users’ Data in the Services; (b) be responsible for the consent, accuracy, quality and legality of your and the Users’ Data and of the means by which you acquired such Data; and (c) provide the Company such reasonable assistance as the Company may request in order to integrate of your Data and your Users’ Data into the Services.  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. Analytical Data. The Company may generate or develop information and data resulting from the manipulation or analysis of Content, your Data, or your Users’ Data based upon its operations and provision of the Services, along with any associated databases, external data, calculations and other processes or tools used by the Company (collectively, the “Analytical Data”). Analytical Data shall be limited to aggregated, de-identified, and statistical information collected by the Company from the operation of the Services and processing, manipulation, and analysis of Users Data. Nothing herein shall be construed as prohibiting the Company from utilizing Analytical Data for the Company’s business purposes. In no event will Analytical Data include your Confidential Information.

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

6.1. Reservation of Rights in the Services. Subject to the rights and remedies expressly granted hereunder, the Company reserves all rights, title, and interest in and to the Hub and Services, including all related Intellectual Property Rights and Trademarks. No rights are granted to you hereunder other than as expressly set forth herein or in the Order Form.

6.3. Your Data. Subject to the limited rights granted by you herein, and except for the right granted in Section 14.6 (Solicitation Right) and except for those Users that become members in KnoWEwell, the Company acquires no right, title or interest from you or your Users in or to your or your Users’ Data, including any Intellectual Property Rights therein. You shall acquire all rights necessary to allow use of your Data, User’s Data and Content in the Services. You agree the Company is not responsible or liable to anyone for your or your Users’ Content, or messages channeled, transmitted, published, or downloaded through the Services.

6.4. Ideas and Suggestions. Any ideas, know-how, techniques, developments, and software which may be developed by the Company at any time, including any enhancements or modifications made to the Services or any intellectual property developed by the Company upon your or a Users’ request, shall be the exclusive property of the Company. The Company provides professional services and solutions to other customers that are similar to the Services the Company may provide to you. Nothing in this MSA is intended or should be interpreted to prevent or inhibit the Company from continuing or commencing to provide such services or solutions. The Company shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you or Users relating in any way to the development, use, or operation of the Hub and Services.

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.

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.

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 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 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. you are responsible for and own, or have the rights to use, all of your Content.

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. 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 

10.1. Company Warranties. Subject to the other provisions of this Section 10, the Company warrants during the Subscription that the Services will include the functionality set forth in substantial conformance with the applicable Order Form. If the Services provided to you for any given month during the Subscription term did not perform as warranted, you must provide written notice to the Company as specified herein no later than five (5) business days after the last day of that particular month. As your sole and exclusive remedy for any breach of the foregoing limited warranty, Company will either, in its sole discretion, (i) use commercially reasonable efforts to remedy the nonconformity within a commercially reasonable period of time or (ii) terminate the applicable Order Form and refund the prepaid fees set forth therein for the unexpired remaining unused Subscription. The Company’s warranties set forth above shall not apply to any nonconformities with the warranty resulting from your or your Users’ acts or omissions or noncompliance with this MSA or applicable Order Form or the documentation for the Services or resulting from any hardware, software, data, materials or other products or services not developed or provided by the Company.

10.2. Your Warranties. You warrant to the Company that you have validly entered into this Agreement and have the legal power to do so. You represent to the Company and agree that your purchases under the applicable Order Form(s) and hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by the Company regarding future functionality or features. You also represent to the Company and agree you have received all necessary information enabling you to assess the adequacy of the Services to fulfill your requirements. You also warrant and covenant that you have obtained or will obtain, as appropriate, any consents from Users or data subjects as necessary for your use of the Services, including, without limitation, (i) parental or guardian consent for Users under the age of 18 (no one under the age of 13 is permitted to be a User), and (ii) consent for the Customer’s and Company’s collection, use, and disclosure of Users’ Data subject to the limitations set forth in this MSA, and (iii) the Company’s tracking, recordation, processing and use of your Data and Users’ Data and other information relating to Users’ use of the Services.

10.3. Disclaimer. THE SERVICES ARE PROVIDED STRICTLY ON AN "AS IS"  AND “AS AVAILABLE” BASIS AND, TO THE EXTENT NOT PROHIBITED BY LAW, THE WARRANTIES HEREIN ARE EXCLUSIVE AND NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF ACCURACY OF DATA, SYSTEM INTEGRATION, MERCHANTABILITY OR FITNESS, AND WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

THE COMPANY DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE COMPANY WILL CORRECT ALL SERVICES’ ERRORS. YOU ACKNOWLEDGE 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.

11. INDEMNIFICATION

11.1. Indemnification by Company. The Company shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that your use of the Services, as permitted hereunder, directly infringes the Intellectual Property Rights of a third party (a "Claim Against You"), and shall indemnify you for any damages, reasonable attorney fees and costs finally awarded against you, as a result of, and for amounts paid by you under a court-approved settlement of, a Claim Against You; provided that you (a) promptly give the Company written notice of the Claim Against You; (b) give the Company sole control of the defense and settlement of the Claim Against You (provided that the Company may not settle any Claim Against You unless the settlement unconditionally releases you of all liability); and (c) provide to the Company all reasonable assistance, at the Company's expense. In the event of a Claim Against You, or if the Company reasonably believes the Services may infringe or misappropriate on the Intellectual Property Rights of a third party, the Company may in the Company's discretion and at no cost to you (i) modify the Services so that it no longer infringes or misappropriates, (ii) obtain a license for your continued use of the Service in accordance with this MSA, or (iii) terminate your Subscriptions for such Services upon thirty (30) days’ written notice and refund to you any prepaid fees covering the remainder of the term of such Subscriptions after the effective date of termination. The Company shall have no liability hereunder with respect to any Claim Against You based upon (a) the combination of the Services with other products not furnished by the Company; (b) any addition to or modification to the Services by any person or entity other than the Company; (c) information or requirements or directives furnished by you; or (d) use of the Services in a manner inconsistent with or not otherwise contemplated by this MSA and Order Forms.

11.2. Indemnification by You. In addition to the indemnifications provided elsewhere in this MSA, you shall defend the Company against any claim, demand, suit or proceeding made or brought against the Company by a third party alleging that your Data, or your use of the Services in breach of this MSA, directly infringes the Intellectual Property Rights of a third party or violates applicable law (a "Claim Against Company"), and shall indemnify the Company for any damages, reasonable attorney fees and costs finally awarded against the Company, as a result of, or for any amounts paid by the Company under a court-approved settlement of, a Claim Against Company; provided that the Company (a) promptly gives you written notice of the Claim Against Company; (b) gives you sole control of the defense and settlement of the Claim Against Company (provided that you may not settle any Claim Against Company unless the settlement unconditionally releases the Company of all liability); and (c) provides to you all reasonable assistance, at your expense.

11.3. Exclusive Remedy. This Section 11 (Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any Intellectual Property Infringement claim described in this Section.

12. LIMITATION OF LIABILITY

12.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO (i) A PARTY’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS AS SET FORTH HEREIN, OR (ii) CUSTOMER’S AND KNOWEWELL’S PAYMENT OBLIGATIONS, NEITHER PARTY'S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO THE COMPANY UNDER THE ORDER FORM THAT GAVE RISE TO THE CLAIM HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO A CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST THE COMPANY SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

12.2. Exclusion of Consequential and Related Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS MSA OR ANY APPLICABLE ORDER FORM), LOSS OF GOODWILL, OR COSTS TO PROCURE SUBSTITUTE GOODS OR SERVICES, DATA OR DATA USE, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

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

14.1. Term of Subscription. Services provided under this MSA shall be provided for the period defined in the applicable Order Form unless earlier terminated. The term of the Subscription to use the Services and any renewal(s) periods are collectively defined as the “Subscription Term.” This MSA commences on the date of the last signature on the Order Form and continues until all Subscription Terms have expired or been terminated. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional one-year periods, unless a Party gives the other notice of non-renewal at least sixty (60) days before the end of the relevant Subscription Term. The fees for Subscriptions automatically renewed are subject to increase at a rate not to exceed 10% or United States inflation rate, if greater, over the prior year.

14.2. Termination for Cause. A Party may terminate this Agreement for cause (i) upon 60 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if 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.

14.3. Effect of Termination. 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.

14.4. Payment upon Termination. If you terminate this Agreement as specified in Section 14.2, the Company will refund you any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If the Company terminates this Agreement as specified in Section 14.2, you will pay any unpaid fees covering the remainder of the Subscription Term for Services ordered under all Order Forms, plus applicable taxes and expenses. In no event will termination relieve either Party of its obligation to pay any fees payable to the other Party for the period prior to the effective date of termination.

14.5. Return of Your Data. Upon written request by you within 30 days after the effective date of termination of a Subscription, the Company will make available to you for download a file of your Data in comma separated value (.csv) format or excel spreadsheet (.xls) format. After such thirty (30) day period, the Company shall have no obligation to maintain or provide any of your Data and may thereafter, unless legally prohibited, delete all of your Data in the Company systems or otherwise in the Company's possession or under the Company's control.

14.6. Solicitation Right. Within 60 days of notice of non-renewal or termination of this MSA by either Party, the Company has the right to notify your Users that their membership on the Hub provided in Section 3.7 will be or has terminated and to solicit such Users to continue their membership on the Hub on terms to be determined by the Company.

14.7. Surviving Provisions. Sections 1. (Definitions), 5.2. (Analytical Data), 5. (Services Fees and Payment; Other Obligations), 6. (Proprietary Rights), 7. (Intellectual Property Rights), 9. (Confidentiality; Data Privacy and Security), 10. (Warranties and Disclaimer), 11 (Indemnification), 12. (Limitation of Liability), 13. (Compliance with Laws; Related Matters), 14.4. (Payment upon Termination), 14.5. (Return of Your Data), 15. (Notices, Governing Law and Jurisdiction), and 16. (Miscellaneous) of this MSA, and any other provisions of this MSA that by their nature should remain in force, shall survive any termination or expiration of this MSA and Order Forms.

15. NOTICES, GOVERNING LAW AND JURISDICTION

15.1. Governing Law; Disputes. This MSA and all Order Forms, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this MSA or any Order Form, or the negotiation, execution or performance of this MSA or any Order Form (including any claim or cause of action based upon or arising out of or relating to any representation or warranty made in or in connection with this MSA or any Order Form or as an inducement to enter into this MSA or any Order Form), 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 MSA and all Order Forms 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 MSA and Order Forms. 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).

15.2. Manner of Giving Notice. If you have a dispute with the Company or otherwise wish to provide notice to the Company, you will promptly send written notice by first class mail or pre-paid post addressed to the Company address set forth at https://knowewell.com/customer-service/contact-us with a confirmation email sent to legal@knowewell.com. Billing-related notices by you to the Company shall be sent by email to accounting@knowewell.com. The Company may give you notice applicable to the Services by means of a general notice on the Company portal for Services, by email at the address specified in your Order Form, and notices specific to you by written communication sent by first class mail or pre-paid post addressed to the address set forth in the Order Form or by email at the address specified in your Order Form. Billing-related notices by the Company to you shall be addressed to the relevant billing contact designated by you on the Order Form. All other notices to you shall be addressed to the relevant Services system administrator, if applicable, designated by you.

16. MISCELLANEOUS

16.1. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of the Company's employees or agents in connection with this MSA and Order Forms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If you learn of any violation of the above restriction, you will use reasonable efforts to promptly notify the Company's Legal Department.

16.2. Relationship of the Parties. 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. The Parties’ business partners, including any third-party firms retained by to provide services to either Party, are independent of the other Party and are not the other Party’s agents.

16.3. Force Majeure. 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 MSA or Order Form(s) 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, hacker attack, denial of service attack, sabotage, pandemics, inability to obtain suitable raw material, equipment, fuel, power, components or transportation, government restrictions (including the denial or cancellation of any export or other license) 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. This section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or obligation to make payments under this MSA and Order Forms.

16.4. No Third-Party Beneficiaries. Nothing in this MSA or any Order Form, express or implied, shall create or be deemed to create any legal or equitable right, benefit, or remedy of any nature whatsoever in any person or entity not a Party to this MSA or an Order Form, including End-Users.

16.5. Waiver. No failure or delay by either Party in exercising any right under this MSA shall constitute a waiver of that right. 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.

16.6. Severability. 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.

16.7. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this MSA in its entirety (including all Order Forms), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party. Each Party must promptly notify the other Party of any assignment or transfer under the provisions of this Section 16.7.  A Party’s sole remedy for any purported assignment by the other Party in breach of this section shall be, at the non-assigning Party’s election, termination of this MSA (including all Order Forms) upon written notice to the assigning Party. Subject to the foregoing, this MSA and Order Forms shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

16.8. Entire Agreement. This MSA, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this MSA or any Order Form shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted. 

16.9. Headings. The descriptive headings of this MSA are for convenience only and will be of no force or effect in construing or interpreting any of the provisions of this Agreement.

16.10. Publicity. Either Party may publicize the existence and general nature of the relationship established by this MSA through mutually agreed upon press releases and other marketing collateral. You consent to the Company’s right to use your name and logo on the Company’s website and in marketing activities and press releases.

16.11. Counterparts. 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.

16.12 Currency. Financial transactions covered by this MSA and Order Forms will be processed and paid in United States dollars.

 

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