EXHIBIT 10.30
PRIVATE LABEL WEB SITE AND CROSS PROMOTION AGREEMENT
This PRIVATE LABEL WEB SITE AND CROSS PROMOTION AGREEMENT ("Agreement"), by
and between XX.Xxx, Inc, a Nevada corporation, with a principal place of
business located at 0000 Xxxx Xxxxxxx Xxxxxx, XXX 000, Xxxx, XX 00000
("XX.XXX"), and ClientCare Inc., a Arizona corporation with a principal place of
business located at 0000 X, Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxx 00000 ("CLIENTCARE
INC"), is effective as of _2-20_, 2002 (the "EFFECTIVE DATE").
RECITALS
WHEREAS, XX.Xxx owns and operates an Internet-based Web Site creation and
hosting service currently known as "Xxxxxxx.xxx," with a Home Page currently
located at xxxx://xxx.xxxxxxx.xxx, which develops and hosts personalized web
sites for small business owners ("XX.Xxx's Web Site").
WHEREAS, ClientCare Inc owns and operates a Web Site currently known as
"ClientCare Inc." with a Home Page currently located at xxxx://xxx.xxxxxxx.xxx
which provides the tools and media that allow businesses the ability to
contribute Intelligent Intuitive Information to the online information
marketplace.
WHEREAS, the parties desire that XX.Xxx develop, host, and maintain a
private label service to allow ClientCare Inc to resell XX.Xxx's Services to
small business owners and to other web site operators for resale to their small
business owners. Also, the parties desire to cross promote and sell the service
offerings of both XX.Xxx and ClientCare Inc through the XX.Xxx Network.
NOW, THEREFORE, in consideration of the mutual promises set forth herein,
the parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
"BRAND FEATURES" means any trademarks, service marks, logos, trade names or
other identifying names or marks, which are proprietary to a party and which are
used by that party to identify its business, products and/or services.
"CONFIDENTIAL INFORMATION" means any information, oral or written,
disclosed by either party to the other pursuant to this Agreement except as
excluded below. "Confidential Information" includes, without limitation, the
terms and conditions of this Agreement, registration information, security
measures, information relating to released or unreleased services, marketing or
promotion of any service or product, business policies or practices, suppliers,
customer base, customer information, ClientCare Inc Materials or information
received from others that a party is obligated to treat as confidential.
"Confidential Information" will not include information that; (i) is or becomes
generally known or available by publication, commercial use or otherwise through
no fault of the receiving party; (ii) is known and has been reduced to tangible
farm by the receiving party at the time of disclosure and is not subject to
restriction; (iii) is independently and rightfully developed or learned by the
receiving party; (iv) is lawfully obtained from a third party that has the right
to make such disclosure; or (v) is made generally available by the disclosing
party without restriction on disclosure. This paragraph supersedes any other
provision in this agreement.
"CLIENTCARE INC BRAND FEATURES" means any trademarks, service marks, logos,
trade names or other identifying names or marks, which are proprietary to
ClientCare Inc end which are used to identify its business, products and/or
services.
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"CLIENTCARE INC. MATERIALS" means any Information and materials provided by
ClientCare Enc to XX.XXX under this Agreement
"CLIENTCARE INC PRIVATE LABEL SERVICE" means a Private Label Service
offered by ClientCare Inc to SBOs and to ClientCare Inc Tier 2 Associates (for
resale to their SBOs), which allows SBOs to create and maintain their own web
sites.
"CLIENTCARE INC SBO" means a small business owner or other end user to whom
ClientCare Inc sells the ClientCare Inc Private Label Service pursuant to this
Agreement.
"CLIENTCARE INC TIER 2 ASSOCIATE" means a Tier 2 Associate to whom
ClientCare Inc sells Private Label Services for resale to the Associate's SBOs.
"GROSS REVENUES" means the fees or other sums collected by XX.Xxx from the
sale of ClientCare Inc Private Label Services pursuant to this Agreement,
without deduction for Transaction Fees and applicable taxes.
"HOME PAGE" means the initial Web Page of a Web Site seen by a user once
the user has directed web browsing technology to access the Web Site's URL.
"LINK" means an embedded icon, object, graphic or text within a Web Page
that consists of a hypertext pointer to the URL address of a Web Page.
"NET REVENUES" means Gross Revenues collected by XX.Xxx from the sale of
ClientCare Inc Private Label Services pursuant to this Agreement
"PARTNERS" means all Tier 1 Partners and Tier 2 Associates.
"PARTNER SERVICES" means the services offered by any Partners via the
XX.Xxx Network, .but. excluding any services provided by XX.Xxx.
"PRIVATE LABEL SERVICE" means the web services offered by any Partners to
SBOs through the XX.Xxx Network, which allow the SBOs to create and maintain
their own web sites and which consist of (i) XX.Xxx Basic Services.
"SBOS" means those small business owners or other end users of any Private
Label Service.
"Services" means the XX.Xxx Basic Services.
"SPECIFICATIONS" means the content and technical specifications for the
ClientCare Inc Private Label Service attached hereto as Exhibit A, as such may
be amended by mutual agreement of the parties from time to time.
"TIER 1 PARTNER" means the operator of a web site, to whom XX.Xxx has
granted the right to offer a Private Label Service directly to SBOs and to Tier
2 Associates. ClientCare Inc is a Tier 1 Partner.
"TIER 2 ASSOCIATE" means the operator of a web site, to whom a Tier 1
Partner has granted the right to offer a Private Label Service to that website
operator's own SBOs. However, a Tier 2 Associate cannot sell Services to either
a Tier 1 Partner or other Tier 2 Associate.
"TRANSACTION FEE" means the actual amount of the credit card processing fee
charged to XX.Xxx at the time of processing of any order placed through the
XX.Xxx Network.
"MONTHLY SERVICE FEE" means the monthly cost of XX.Xxx's Basic Services to
ClientCare Inc.
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"USER INFORMATION" means both Aggregate Information and Personal
Information pertaining lean SBO. "Aggregate Information" means information that
describes the habits, usage patterns and/or demographics of SBOs as a group but
does not identify any individual SBO by name nor provide information in a form
which would enable the recipient of that information to identify the SBO.
"PERSONAL INFORMATION" means information about and which identifies an
individual SBO and which may include without limitation the SBO's (i) name, (ii)
address, and (iii) data about a specific transaction that identifies the SBO
involved.
"XX.XXX BASIC SERVICES" means the web site development and hosting services
as changed from time to time and offered on the XX.Xxx Web Site, which includes
all services listed in Exhibit B.
"XX.XXX CONTENT" means any articles or other editorial content provided by
XX.Xxx under this Agreement and taken from the XX.Xxx Network.
"XX.XXX NETWORK" means YP. Net's Web Site, private label Web Sites, and any
other Web Sites that provide Services to SBOs.
"XX.XXX SERVICES" means those services offered by XX.Xxx and consisting of
the XX.Xxx Basic Services.
"WEB PAGE" means content in the World Wide Web portion of the Internet
accessed via a single URL, and excluding content on other Web Pages accessed via
Links in said content.
"WEB SITE" means a collection of Web Pages related in some manner and
interconnected via Links, including all successor versions thereof that may
evolve throughout the Term of this Agreement, regardless of whether or not
marketed or promoted under the same name.
Other Terms. All other initially capitalized terms will have the meanings
assigned to them in this Agreement, including its Exhibits.
2. CLIENTCARE INC PRIVATE LABEL SERVICE.
2.1 DEVELOPMENT AND MAINTENANCE. XX.Xxx will develop, operate, maintain,
and host the ClientCare Inc Private Label Service in accordance with this
Section 2 and the Specifications, The ClientCare Inc Private Label Service will
provide ClientCare he's Tier 2 Associates and SBOs access to (i) the XX.Xxx
Basic Services.
2.2 LAUNCH. The parties will cooperate in good faith to make the ClientCare
Inc Private Label Service available to ClientCare Inc SBOs according to the
schedule as set forth in the Specifications (the "Launch Date").
2.3 XX.XXX BRANDING. The ClientCare Inc Private Label Service will be
branded with a "Fueled by xxxxx.xxx" logo as more specifically described in
Exhibit A, which branding may be subject to periodic changes upon prior written
notice by XX.Xxx to ClientCare Inc, and written approval by ClientCare Inc.
2.4 DOMAIN NAME. ClientCare Inc will be solely responsible for registering
and maintaining as a domain name the URL, at which the ClientCare Inc Private
Label Service will be located and which the parties anticipate will be
substantially similar to xxxx://xxx.XXX.xxxxxxx.xxx. Any changes to that
registered domain name during the Term shall be subject to agreement by the
parties. ClientCare Inc and XX.Xxx will each receive full Media Metrix traffic
credit for the ClientCare Inc Private Label Service.
2.5 CLIENTCARE INC BRAND FEATURES. ClientCare Inc will provide XX.Xxx with
such ClientCare Inc Brand Features as it determines in its sole discretion and
any navigational elements associated with each, as necessary to permit XX.Xxx to
create the ClientCare Inc Private Label Service and to comply with its
obligations under this Agreement. ClientCare Inc will provide XX.Xxx with the
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ClientCare Inc Brand Features in an electronic format as reasonable requested by
XX.Xxx XX.Xxx will provide the content necessary to integrate the XX.Xxx Basic
Services into the ClientCare Inc Private Label Service. Notwithstanding the
obligations set forth in this Section, neither party will be obligated to
provide to the other party any content or services or include any content or
services in the ClientCare Inc Private Label Service or for any other Web Site,
if doing so would put such party in breach of an existing contractual
obligation.
2.6 RESPONSIBILITY FOR THE CLIENTCARE INC PRIVATE LABEL SERVICE. As between
XX.Xxx and ClientCare Inc, and except as expressly provided otherwise in this
Agreement or in any related support services agreement, XX.Xxx will develop,
operate, maintain and host the ClientCare Inc Private Label Service and all
content contained therein, excluding user registration as provided under Section
2.7. The ClientCare Inc Private Label Service will be maintained and operated by
XX.Xxx in accordance with the membership terms of service attached hereto as
Exhibit C (the "Membership Terms of Service"), which shall at all times be
substantially similar to the then-current membership agreement on the XX.Xxx Web
Site. ClientCare Inc may modify these terms at their sole discretion.
2.7 USER REGISTRATION. During the Term commencing with the Launch Date,
ClientCare Inc will be responsible for registering users of the ClientCare Inc
Private Label Service on ClientCare Inc's Web Site. Such registration process
will require users to consent to the Membership Terms of Service, and ClientCare
Inc will ensure that any user who does not consent to the Membership Terms of
Service may not create a personalized web site through the ClientCare Inc
Private Label Service. In addition, ClientCare Inc will make efforts to ensure
that the registration process for the ClientCare Inc Private Label Service
requires verification that the user is over the age of eighteen (18) and
prohibits users under the age of eighteen (18) from creating a personalized Web
Site through that Private Label Service.
2.8 PARTNER SUPPORT. XX.Xxx will support ClientCare Inc, as set forth in
Exhibit E.
2.9 USER INFORMATION. XX.Xxx and ClientCare Inc will jointly own any and
all User Information collected by either party from ClientCare Inc SBOs
("CLIENTCARE INC PRIVATE LABEL SERVICE USER INFORMATION"). ClientCare Inc
Private Label Service User Information will be collected, disclosed, or used by
the parties only in accordance with the privacy policy for the ClientCare Inc
Private Label Service to be mutually agreed upon by the parties and attached
hereto as Exhibit D (the "Privacy Policy") and in accordance with all applicable
laws. After the Launch Date, XX.Xxx will provide ClientCare Inc Private Label
Service User Information to ClientCare Inc on a monthly basis via an online
reporting service. ClientCare Inc may modify this policy at their sole
discretion.
3. XX.XXX NETWORK OFFERINGS.
3.1 CLIENTCARE INC'S SALES OF SERVICE: As a reseller of XX.Xxx Services,
ClientCare Inc may sell the XX.Xxx Basic Service to ClientCare Inc SBOs via the
ClientCare Inc Private Label Service. ClientCare Inc will have sole discretion
to set and determine the price at which it sells Services to ClientCare Inc
SBOs.
3.2 TIER 2 ASSOCIATES SIGN-UP. ClientCare Inc may sell the Private Label
Services to Tier 2 Associates. Tier-2 Associates may sell to its own SBOs the
XX.Xxx Basic Services. The Private Label Service that ClientCare Inc may sell to
Tier 2 Associates will be primarily branded with the branding of the Tier 2
Associate and will include a "Fueled by xxxxx.xxx", logo. Such Private Label
Service will be hosted and maintained by XX.Xxx at a URL owned by such Tier 2
Associate. ClientCare Inc will have sole discretion to set and determine the
price at which it sells the Private Label Service to Tier 2 Associates and the
Tier 2 Associate will have sole discretion at which it sells the Private Label
Service to SBOs.
4. MARKETING. During the Term, ClientCare Inc will use commercially reasonable
efforts to promote and market the ClientCare Inc Private Label Service.
Throughout the Term, the parties will use commercially reasonable efforts to
meet periodically and create collaborative business development strategies to
market and promote the ClientCare Inc Private Label Service and the Services.
Those marketing efforts that have bean identified and agreed upon by the parties
are set forth in Exhibit E.
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5. BILLING, COLLECTIONS, PAYMENTS AND ACCOUNTING
5.1 PAYMENT. During the Term of this Agreement, ClientCare Inc agrees to
pay XX.Xxx in accordance with the following formulas.
5.1.1 XX.XXX BASIC SERVICES FORMULA. In connection with XX.Xxx Basic
Services created each month during the Term by ClientCare Inc or ClientCare
Inc's Tier 2 Associates, ClientCare Inc will be obligated to pay XX.Xxx the
Monthly Service Fee (as set forth in Exhibit F) per ClientCare Inc SBO or
ClientCare Inc Tier 2 Associate SBO, who are registered to receive those
Services each month.
5.1.2 PAYMENT. In the event XX.Xxx does not collect sufficient Net
Revenues, Transaction Fees, or applicable taxes from ClientCare Inc SBOs and
ClientCare Inc Tier 2 Associate SBOs, to cover the amounts owed by ClientCare
Inc to XX.Xxx as calculated in this Section 5.1, then XX.Xxx will invoice
ClientCare Inc for the difference. ClientCare Inc will pay XX.Xxx within thirty
(30) days from the date of such invoice. Invoices not paid within such time
period shall be subject to a late payment charge of 1.5% per month (or the
maximum rate permitted by law, whichever is lower) on the outstanding balance
thereof, accruing from the due date. In the event that after a reconciliation
per 5.3 below. XX.Xxx owes money to ClientCare Inc irrespective to the
provisions of 5.3. ClientCare Inc can invoice XX.Xxx for that money & XX.Xxx
must pay within 30 days from date of said invoice in like manner & kind to
XX.Xxx's rights under this clause
5.2 BILLING AND COLLECTION. ClientCare Inc hereby appoints XX.Xxx. and
XX.Xxx accepts such appointment, to be ClientCare Inc's billing and collection
agent for billing and collecting Gross Revenues from ClientCare Inc SBOs, and
ClientCare Inc Tier 2 Associate SBOs. XX.Xxx will xxxx and collect said Gross
Revenues on ClientCare Inc's behalf pursuant to Sections 3.1 and 3.2. ClientCare
Inc may at any time and at its sole discretion, decided not to use the billing
and collection services of XX.Xxx without penalty to ClientCare Inc.
5.3 REMITTANCE. XX.Xxx will retain an amount equal to the payment owed by
ClientCare Inc to XX.Xxx as calculated by the formulas set forth in Sections
5.1.1 and 5.1.2 above and will use commercial reasonable efforts to remit to
ClientCare Inc ClientCare Inc's share of Net Revenues and applicable taxes via
electronic funds transfer within thirty (30) business days following any month
in which those Net Revenues have been collected. If at any time ClientCare Inc
owes XX.Xxx any amount based upon a reconciliation of a prior month's billing,
then XX.Xxx may retain an additional amount equal to the underpayment. Likewise,
if after a reconciliation XX.Xxx owes ClientCare Inc, XX.Xxx will include such
amount with the next month's remittance.
5.4 REPORTING. Within ten (10) days after the end of each month during the
Term, XX.Xxx will furnish ClientCare Inc with a statement itemizing the total
amount of Gross and Net Revenues collected that month from all services for
which ClientCare Inc is entitled to a share of the resulting Net Revenues.
ClientCare Inc will be solely responsible for remitting any amounts due and
owing to ClientCare Inc's Tier 2 Associates as agreed between ClientCare Inc and
its Associates and as documented in the statement.
5.5 CHARGEBACKS AND REFUNDS. In the event that an SBO stops payment or
"charges back" its credit card for Services on the ClientCare Inc Private Label
Service, then XX.Xxx may recoup any Net Revenues and applicable taxes remitted
to ClientCare Inc for the Services that the SBO stopped payment. In the event an
SBO requests a refund for Services not yet rendered (e.g., the SBO has prepaid
for 1 year of service and requests a refund after six months), then XX.Xxx will
provide a pro-rated refund and XX.Xxx may recoup that portion of Net Revenues
remitted to ClientCare Inc for the refunded time period. In the event that an
SBO requests a refund for Services due to a failure to provide requested
Services, and XX.Xxx agrees that it failed to provide such Services, then XX.Xxx
will refund SBO's
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payment and XX.Xxx may recoup that portion of Net Revenues remitted to
ClientCare Inc for those Services. In the event an SBO requests a refund for
Services that were provided, then XX.Xxx may, in its discretion, decide whether
to provide a refund to that SBO and if XX.Xxx decides to provide such refund,
then XX.Xxx may recoup that portion of Net Revenues remitted to ClientCare Inc
for those Services.
5.6 AUDIT. During the Term and for a period of two (2) years following the
termination or expiration of the Agreement, the parties agree to keep all usual
and proper records and books of account and all usual and proper entries and
other documentation relating to any and all transactions contemplated by this
Agreement (collectively, "Business Records"). During the Term and for a period
of two (2) years following the expiration or termination of this Agreement, each
party will have the right to cause an audit and/or inspection to be made of the
other party's records relevant to this agreement in order to verify statements
issued by the other party and compliance with the terms of this Agreement. Any
such audit will be conducted by an independent certified public accountant
selected by the auditing party (other than on a contingent fee basis} and
reasonably acceptable to the audited party. Any audit or inspection is to be
conducted during regular business hours at the audited party's facilities upon
at least ten (10) days written notice. Such audits may not be made more often
than once in any twelve (12) month period. If any such audit reveals an
underpayment of more than five percent (5%) related to the time period under
audit, the reasonable costs and expenses to conduct such audit will be paid by
the audited party and the audited party will pay such costs together with the
amount of such underpayment within thirty (30) days from receipt of an invoice
or statement therefore, itemizing the amounts of said underpayment and audit
costs and including copies of relevant supporting documentation. All information
disclosed or obtained in the course of conducting an audit will be Confidential
Information of the audited party and used solely for the purpose of verifying
compliance with the terms of this Agreement.
6. LICENSE GRANT.
6.1 During the Term and thereafter pursuant to Section 8.5, ClientCare Inc
hereby grants XX.Xxx a worldwide, nonexclusive, royalty-free, fully paid-up,
and. subject to Section 13.3, nontransferable license to use, reproduce,
digitize, distribute, transmit, and publicly display ClientCare Inc Materials
and ClientCare Inc Brand Features, as necessary for the development, operation,
maintenance, and support of the ClientCare Inc Private Label Service and
ClientCare Inc upon review and prior written approval of use by ClientCare Inc.
6.2 During the Term and thereafter pursuant to Section 8.5, ClientCare Inc
hereby grants XX.Xxx a worldwide, nonexclusive, royalty-free, fully paid-up and,
subject to Section 13.3, license to use, reproduce, digitize, distribute,
transmit, and publicly display and sublicense ClientCare Inc Materials over the
XX.Xxx Network, including without limitation, on XX.Xxx's Web Site and all SBO
Web Sites, Partner Private Label Web Sites, and their SBO Web Sites, provided
that ClientCare Inc has provided written approval. Such materials will be
removed upon termination of this Agreement.
6.3 The parties agree that, except as expressly licensed to ClientCare Inc
by this Agreement or by a separate license agreement as between the parties,
XX.Xxx will retain all right, title, and interest in the ClientCare Inc Private
Label Service, the XX.Xxx Network, XX.Xxx Basic Services, and all data, content,
technologies and other property furnished by XX.Xxx to ClientCare Inc hereunder.
Notwithstanding the foregoing, the parties agree that except as expressly
licensed to XX.Xxx in this Agreement or a separate license agreement, ClientCare
Inc will retain all right, title, and interest in the ClientCare Inc Web Site,
ClientCare Inc Materials, ClientCare Inc Brand Features, ClientCare Inc Services
and the ClientCare Inc Private Label Service domain name and all data, content,
technologies and other property furnished by ClientCare Inc to XX.Xxx hereunder.
Neither party will have any rights, title or interest in any materials, content
or technology provided by the other party hereunder except as specifically
provided in this Agreement and will not alter, modify, copy, edit, format,
translate, create derivative works of or otherwise use any materials, content or
technology provided by the other party except as explicitly provided herein or
approved in advance in writing by the other party.
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7. CONFIDENTIALITY
7.1 Each party will protect the other's Confidential Information from
unauthorized dissemination and use with the same degree of care that such party
uses to protect its own like information. Neither party will use the other's
Confidential Information for purposes other than those necessary to directly
further the purposes of this Agreement. Each party may disclose the terms and
conditions of this Agreement to its employees, affiliates and its immediate
legal and financial consultants on a need to know basis as required in the
ordinary course of that party's business, provided that such employees,
affiliates and/or legal and/or financial consultants agree in advance of
disclosure to be bound by this Section 7. A party may disclose Confidential
Information as required by government or judicial order, provided each party
gives the other party prompt notice of such order and complies with any
protective order (or equivalent) imposed on such disclosure.
7.2 Each party acknowledges that monetary damages may not be a sufficient
remedy for unauthorized disclosure or use of Confidential Information and that
each party may seek, without waiving any other rights or remedies, such
injunctive or equitable relief as may be deemed proper by a court of competent
jurisdiction.
8. TERM; TERMINATION
8.1 The term of this Agreement will be three (2) years from the Effective
Date subject to automatic, successive renewal terms of one (1) year each, unless
either XX.Xxx or ClientCare Inc gives the other party written notice of its
intent not to renew at least ninety (90) days prior to the expiration of the
initial term or any succeeding term (collectively the "Term"). If XX.Xxx
agreement with Vista is terminated, then this agreement is also terminated
without penalty.
8.2 TERMINATION FOR BANKRUPTCY. Either party may terminate this Agreement
by written notice given to the other party, in the event the other party (i)
files a petition in bankruptcy; or (ii) has a petition in bankruptcy filed
against it by any third party, which is not dismissed within sixty (60) days.
Termination pursuant to this Section shall take effect on the date notice by the
terminating party is deemed given.
8.3 TERMINATION FOR CAUSE. In addition to any other rights or remedies that
either party may have under the circumstances, all of which are expressly
reserved, either party may terminate this Agreement at any time, if the other
party is in material breach of any warranty, representation, term, condition or
covenant of this Agreement, .and fails to cure that breach within sixty (60)
days after written notice given, outlining all reasons for said termination.
8.4 EFFECTS OF TERMINATION. Upon the termination or expiration of this
Agreement except to the extent provided pursuant to Section 8.5 below: (i) all
rights and licenses granted hereunder and all obligations and covenants imposed
hereunder will immediately cease; and (ii) except as expressly set forth herein,
each party will: (A) stop using all Confidential Information of the other party
then in its possession; (B) erase or destroy all such Confidential Information
then residing in any computer memory or data storage apparatus in its possession
or control; (C) at the option of such other party, either destroy or return to
such other party all such Confidential Information in tangible form and all
copies thereof; (D) remove all of the other party's Brand Features from the web
sites and the XX.Xxx Network; and (E) XX.Xxx will remove all ClientCare Inc
Materials, including ClientCare Inc Editorial Content from the XX.Xxx Website
and XX.Xxx Network, except that XX.Xxx is not required to remove ClientCare Inc
Materials from any SBO's Website out of control of XX.Xxx. In the event of
termination of this Agreement, for any reason each and every clause which by its
nature is intended to survive the termination of this Agreement Including,
without limitation, Sections 1, 2.4, 2.8, 5 (only to the extent that
transactions are authorized prior to expiration or termination), 5.2, 7, 8, 9,
10, 11, 12, and 13 will survive termination or expiration.
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8.5 TRANSITION
8.5.1 XX.XXX DEFAULT. Upon termination of this Agreement by ClientCare
Inc pursuant to Section 8.2 or 8.3, XX.Xxx will use commercially reasonable
efforts to assist ClientCare Inc in transitioning the ClientCare Inc SBOs off
the XX.Xxx Network to a third-party web-hosting site or ClientCare Inc's own
site as designated by ClientCare Inc. For the purpose of this section
Commercially Reasonable Efforts shall mean "documentation relating to ClientCare
Inc SBO Web Sites and customer data files, and the site images, logos, banners,
html content, (collectively "Transition Deliverables"). The Transition
Deliverables are stored in an Oracle database and on an NFS file server. Vista
shall provide the Transition Deliverables to ClientCare Inc in the form of a
data snapshot on CD-ROM. An Oracle export file will be provided on CD-ROM for
each database. The Oracle export file contains the database schema and all
database date related to ClientCare Inc SBO Websites". If XX.Xxx Services are
still maintained on the XX.Xxx Network, then ClientCare Inc's obligation to pay,
and XX.Xxx's obligation to provide the services and billing and collection,
shall continue as necessary for such transition.
8.5.2 CLIENTCARE INC DEFAULT. Upon termination of this Agreement by
Vista or XX.Xxx pursuant to Section 8.2 or 8.3, ClientCare Inc will use
commercially reasonable efforts to assist XX.Xxx in transitioning the ClientCare
Inc SBOs from the URL designated for the ClientCare Inc Private Label Service
pursuant to Section 2.4 to a URL maintained by XX.Xxx. Specifically, ClientCare
Inc will for up to six (6) months following termination or expiration maintain
all of its SBO URLs and redirect such URLs to a URL agreed to by XX.Xxx and
ClientCare Inc.
8.5.3 EXPIRATION. Upon expiration pursuant to Section 8.1, ClientCare
Inc and ClientCare Inc's Tier 2 Associates will no longer be entitled to sell
Services to SBOs, XX.Xxx will continue to provide existing SBOs Services in
accordance with the current Membership Agreement and the terms of this Agreement
for up to two (2) additional years and pay ClientCare Inc there portions of the
collected revenue as if this agreement was still in effect. In the event of
expiration of this Agreement, Sections 1, 2.1, 2.3-2.5, 2.6, 2.8, 2.9, 6, 7, 8,
9, 10, 11, 12, and 13 will survive expiration for the two additional years.
9. INDEMNITY
9.1 BY XX.XXX
9.1.1 XX.Xxx shall indemnify, hold harmless and, at its sole expense,
defend ClientCare Inc and any of ClientCare Inc's subsidiaries, affiliates,
directors, officers, employees, agents and independent contractors from and
against any and all third-party claims, suits, proceedings, costs and expenses
(including attorneys' fees), liabilities, losses and damages (collectively,
"Third-Party Claims") arising out of, or in any way related to:
(i) Any actual or alleged breach of this Agreement or violation
of applicable U.S. law by XX.Xxx;
(ii) Any XX.Xxx Content or XX.Xxx Brand Features, regardless of
where located; or
(iii) The development, operation, maintenance and hosting of the
ClientCare Inc Private Label Service, excluding user
registration for that Service and any ClientCare Inc
Materials or ClientCare Inc Brand Features displayed in
connection therewith.
9.1.2 XX.Xxx's obligations under Section 9.1.1 shall be contingent on
ClientCare Inc:
(i) Providing XX.Xxx with reasonably prompt written notice of
any such Third-Party Claim, for which it is seeking a
defense and/or
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indemnification hereunder;
(ii) Fully cooperates with, and provides Information or other
assistance to, XX.Xxx upon request and at XX.Xxx's expense;
and
(iii) Allows XX.Xxx to control the defense and resolution of any
such Third-Party Claim with legal counsel of XX.Xxx's
choice.
Notwithstanding Section 9.1.2{iii) above, ClientCare Inc shall have the right to
approve the settlement of any Third-Party Claim, which involves an admission or
commitment by or on behalf of ClientCare Inc, other than the payment of money to
be fully indemnified hereunder by XX.Xxx. Such approval shall not be
unreasonably withheld or delayed.
9.1.3 In the event XX.Xxx settles or otherwise resolves a Third-Party
Claim for which it is obligated to indemnify ClientCare Inc hereunder, XX.Xxx
agrees not to publicize said resolution without first obtaining ClientCare Inc's
written permission, which permission will not be unreasonably withheld.
9.2 By ClientCare Inc
9.2.1 ClientCare Inc shall indemnify, hold harmless and, at its sole
expense, defend XX.Xxx and any of XX.Xxx's subsidiaries, affiliates, directors,
officers, employees, agents and Independent contractors from and against any and
all Third-Party Claims (as defined in Section 9.1.1 above), arising out of, or
in any way related to:
(i) Any actual or alleged breach of this Agreement by ClientCare
Inc;
(ii) Any ClientCare Inc Materials or ClientCare Inc Brand
Features, including in connection therewith infringement of
any third-party's intellectual property rights, trade
secrets or other proprietary rights; or
(iii) Violation of applicable U.S. law, regulation or XX.Xxx
policy by ClientCare Inc, by any ClientCare Inc Tier 2
Associate, or by the SBOs of either said party.
9.2.2 ClientCare Inc's obligations under Section 9.2.1 shall be
contingent on XX.Xxx:
(i) Providing ClientCare Inc with reasonably prompt written
notice of any such Third-Party Claim, for which it is
seeking a defense and/or indemnification hereunder;
(ii) Fully cooperates with, and provides information or other
assistance to, ClientCare Inc upon request and at ClientCare
Inc's expense; and
(iii) Allows ClientCare Inc to control the defense and resolution
of any such Third-Party Claim with legal counsel of
ClientCare Inc's choice.
Notwithstanding Section 9.2.2(iii) above, XX.Xxx shall have the right to approve
the settlement of any Third-Party Claim, which involves an admission or
commitment by or on behalf of XX.Xxx, other than the payment of money to be
fully indemnified hereunder by ClientCare Inc. Such approval shall not be
unreasonably withheld or delayed.
9.2.3 In the event ClientCare Inc settles or otherwise resolves a
Third-Party Claim for which it is obligated to indemnify XX.Xxx hereunder,
ClientCare Inc agrees not to publicize said resolution without first obtaining
XX.Xxx's written permission, which permission will not be unreasonably withheld.
9
10. DISCLAIMER OF WARRANTIES. EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES OR
REPRESENTATIONS EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, NEITHER
PARTY WARRANTS THAT ACCESS TO OR USE OF ANY WEB SITE, INCLUDING THE ClientCare
Inc PRIVATE LABEL SERVICE, WILL BE UNINTERRUPTED OR ERROR-FREE. OR THAT ANY
SOFTWARE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR
QUALITY.
ALSO, THERE IS NO WARRANTY OF TITLE OR NON-INFRINGEMENT OR QUIET ENJOYMENT WITH
RESPECT TO ANY CONTENT, SERVICES OR WEB SITES REFERENCED OR PROVIDED UNDER THIS
AGREEMENT.
11. LIMITATION OF LIABILITIES. EXCEPT FOR OBLIGATIONS OF CONFIDENTIALITY UNDER
SECTION B AND OBLIGATIONS OF DEFENSE AND INDEMNITY PURSUANT TO SECTION 10, BOTH
PARTIES AGREE THAT (i) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF
OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION. DAMAGES FOR LOSS OF
BUSINESS PROFITS. BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE
LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
AND (ii) THE TOTAL LIABILITY OF THE PARTIES TO EACH OTHER, AND EACH PARTY'S SOLE
AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS RELATING TO OR ARISING UNDER THIS
AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID HEREUNDER, WITH EACH PARTY
RELEASING THE OTHER FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS
OF THAT AMOUNT.
NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF THIS SECTION 11 SHALL NOT
RESTRICT EITHER PARTY'S ABILITY TO OBTAIN 1NJUNCTIVE OR OTHER EQUITABLE RELIEF.
12. TAXES.
12.1 The amounts to be paid by ClientCare Inc to XX.Xxx herein do not
include any foreign, U.S. federal, state, local, municipal or other governmental
taxes, duties, levies, fees, excises or tariffs, arising as a result of or in
connection with the transactions contemplated under this Agreement including,
without limitation, any state or local sales or use taxes or any value added tax
or business transfer tax now or hereafter imposed on the provision of goods end
services to ClientCare Inc by XX.Xxx under this Agreement, regardless of whether
the same are separately stated by XX.Xxx. All such taxes (and any penalties,
interest, or other additions to any such taxes), with the exception of taxes
imposed on XX.Xxx's income or with respect to XX.Xxx's property ownership, shall
be the financial responsibility of ClientCare Inc. ClientCare Inc agrees to
indemnify, defend and hold XX.Xxx harmless from any such taxes or claims, causes
of action, costs (including, without limitation, reasonable attorneys' fees) and
any other liabilities of any nature whatsoever related to such taxes.
12.2 ClientCare Inc will pay all applicable value added, sales and use
taxes and other taxes levied on it by a duly constituted and authorized taxing
authority on the software or services provided under this Agreement of any
transaction related thereto in each country in which the services and/or
property are being provided or in which the transactions contemplated hereunder
are otherwise subject to tax, regardless of the method of delivery. Any taxes
that-are owed by ClientCare Inc, (i) as a result of entering into this
Agreement and the payment of the fees hereunder, (ii) are required or permitted
to be collected from ClientCare Inc by XX.Xxx under applicable law, and (iii)
are based upon the amounts payable under this Agreement (such taxes described in
(i), (ii), and (iii) above the "Collected Taxes"), shall be remitted by
ClientCare Inc to XX.Xxx, whereupon, upon request, XX.Xxx shall provide to
ClientCare Inc tax receipts or other evidence indicating that such Collected
Taxes have been collected by XX.Xxx and remitted to the appropriate taxing
authority. ClientCare Inc may provide to XX.Xxx an exemption certificate
acceptable to XX.Xxx and to the relevant taxing authority (including without
limitation a resale
10
certificate(s) in which case, after the date upon which such certificate is
received in proper form, XX.Xxx shall not collect the taxes covered by such
certificate.
12.3 If, after a determination by foreign tax authorities, any taxes are
required to be withheld, on payments made by ClientCare Inc to XX.Xxx.
ClientCare Inc may deduct such taxes from the amount owed XX.Xxx and pay them to
the appropriate taxing authority; provided however, that ClientCare Inc shall
promptly secure and deliver to XX.Xxx an official receipt for any such taxes
withheld or other documents necessary to enable XX.Xxx to claim a U.S. Foreign
Tax Credit. ClientCare Inc will make certain that any taxes withheld are
minimized to the extent possible under applicable law.
12.4 This tax section shall govern the treatment of all taxes arising as a
result of or in connection with this Agreement notwithstanding any other section
of this Agreement.
13. GENERAL PROVISIONS
13.1 INDEPENDENT CONTRACTORS. The parties are independent contractors with
respect to each other, and nothing in this Agreement will be construed as
creating an employer-employee relationship, a partnership, or a joint venture
between the parties. The only agency relationship created by this Agreement is
created in Section 5.2 regarding the provision of billing and collection
services by XX.Xxx.
13.2 GOVERNING LAW. This Agreement will be governed by the laws of the
State of Arizona, excluding choice of law rules. The parties agree to
jurisdiction and venue in the state and federal courts sitting in Maricopa
County, Arizona. In any action or suit to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the prevailing party
will be entitled to recover its costs, including reasonable attorneys' fees.
13.3 ASSIGNMENT. Neither party may assign its rights or obligations under
this Agreement without the prior written consent of the other party, except that
either party will be permitted, without the other party's prior written consent,
to assign its rights and obligations to an acquiring or successor entity in
connection with a merger, a sale of its business or a sale of all or
substantially all of its assets, upon prompt written notice thereof given to the
other party once said assignment becomes certain and provided such successor is
not a direct competitor of the other party. All terms and provisions of this
Agreement will be binding upon and inure to the benefit of the parties hereto
and their respective permitted transferees, successors and assigns.
13.4 COSTS. Except as otherwise expressly provided herein, each party: (a)
will be responsible for all costs associated with the performance obligations
expressly undertaken by such party under this Agreement, and (b) will have no
right to obtain reimbursement or other payment from the other party.
13.5 CONSTRUCTION. In the event that any provision of this Agreement
conflicts with governing law or if any provision is held to be null, void or
otherwise ineffective or invalid by a court of competent jurisdiction, (i) such
provision will be deemed to be restated to reflect as nearly as possible the
original intentions of the parties in accordance with applicable law, and (ii)
the remaining terms, provisions, covenants and restrictions of this Agreement
will remain in full force and effect. This Agreement has been negotiated by the
parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either party. The section headings used in this Agreement are intended
for convenience only and will not be deemed to affect in any manner the meaning
or intent of this Agreement or any provision hereof.
13.6 NOTICES. All notices and requests in connection with this Agreement
will be given in writing and will be deemed given on the date of first attempted
delivery (whether successful or not) to the
11
intended recipient's last known address by messenger, delivery service, or in
the United States of America mail, postage prepaid, certified or registered,
return receipt requested, and addressed as follows:
12
To XX.Xxx: To ClientCare Inc:
XX.Xxx ClientCare Inc, Inc.
0000 X. Xxxxxxx Xx., Xxx 000 0000 X. Xxxxxxxxx Xxxxxx
Xxxx, XX. 00000 Xxxx, XX 00000
Attention: Attention: Xxx Xxxxxx
Phone 000-000-0000 Phone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
or to such other address as the applicable party may designate pursuant to this
notice provision.
13.7 ENTIRE AGREEMENT. This Agreement and the attached Exhibits constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements or
communications. This Agreement will not be modified except by a written
agreement dated subsequent to the date of this Agreement and signed on behalf of
XX.Xxx and ClientCare Inc by their respective duly authorized representatives.
No waiver of any breach of any provision of this Agreement will constitute a
waiver of any prior, concurrent or subsequent breach of the same or any other
provisions hereof, and no waiver will be effective unless made in writing and
signed by an authorized representative of the waiving party.
The parties have caused this Agreement to be executed by their duly authorized
representatives as of the Effective Date.
XX.XXX CLIENTCARE INC, INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxx Xxxxxx
------------------------ -----------------------
Name (Print) Xxxx Xxxxx Name (Print) Xxx Xxxxxx
---------------
Title E.V.P. Title Pres.
---------------------
Date 5-10-02 Date 2-20-02
----------------------- ----------------------
13
EXHIBIT A
SPECIFICATIONS
I. DESIGN SPECIFICATIONS
- XX.Xxx Basic Service as described in EXHIBIT B with the following
modifications:
- XX.Xxx (o provide an XML API to externally create e-generated sites
based upon the transfer of user data collected through ClientCare
Inc's sign-up process.
- XX.Xxx will host the Private Label Sign-Up process with ClientCare
Inc's unique branding requirements.
- XX.Xxx will enable the service for private labeling.
URL will be private labeled as "XXX.xxxxxxx.xxx", ezwebsite icon
position in Management Console. ClientCare Inc specific tab in
the Management Console with link to ClientCare Inc website
- YP. Net will provide a Partner Dashboard for:
Reporting
Managing
II. TECHNICAL SPECIFICATIONS
- Basic Service: YP. Net's Basic Service allows for the automatic
generation of industry specific e-businesses for SBOs. XX.Xxx provides
a cutting edge eBusiness solution which includes an integrated,
comprehensive and diverse suite of services designed to allow small
business owners to create a robust and professional online presence,
promote their business, conduct secure e-commerce, service their
customers, and measure the success of their business online.
- XML API: This capability allows ClientCare Inc to send specific SBO
information to XX.Xxx in a format that allows XX.Xxx to create sites
for ClientCare Inc SBOs. There are two types of XML defined for
inbound and outbound traffic: request XML and response XML. The
request XML contains information such as partner information, customer
information, company name, and desired url for the site. The response
XML, sent in response to the receipt and processing of request XML,
contains status information about the processing of site creation.
- PRIVATE LABEL SIGN-UP: Private label sign-up process includes; custom
offer & pricing page, online sign-up form, sample sites, and guided
tour accessed through the ClientCare Inc web site.
- PRIVATE LABEL SERVICE: ClientCare Inc SBOs will feel like they are
using a service offering from ClientCare Inc. The SBO's URL will say
SBO is at xxxxxxx.xxx. When the customer administers their site, they
will see the xXxxxxxxx.xxx logo prominently placed at the top of the
Management Console and they will see the ClientCare Inc tab in the
Management Console offering specific ClientCare Inc services and
information.
- PARTNER DASHBOARD: This capability allows ClientCare Inc to manage the
relationship with their SBOs, The Partner Dashboard is a key element
of the easy to use functionality that allows ClientCare Inc to manage
these relationships using the very same XX.Xxx technology that
ClientCare Inc SBOs will be using. The Partner Dashboard will only be
available to Partners, like ClientCare Inc and their Tier 2
Associates, and includes the ability to run pre-built reports for
tracking the customer relationship. The Partner Dashboard also
contains applications that allow ClientCare Inc to manage their SBO's.
All of these capabilities are accessible via the ClientCare Inc
Partner Dashboard.
III. CLIENTCARE INC PRIVATE LABEL SERVICE MOCK-UP
14
[GRAPHIC OMITTED]
II. BRANDING GUIDELINES
Every Management Console of the ClientCare Inc Private Label Service will
contain the following "Fueled by vista" logo or other xxxxx.xxx as may be
updated by Vista from time to time (the "Logo");
[GRAPHIC OMITTED]
III. SCHEDULE
Both parties agree to use commercially reasonable efforts to complete the work
specified by February 20, 2002
15
EXHIBIT B
XX.XXX BASIC SERVICES
XX.Xxx reserves the right to change the Vista Basic Service, and/or replace
services upon reasonable notice to Customers. The XX.Xxx Basic Services include
the following:
- Web Site Creation
Web Site Set-up
Web Site Hosting
- Content Offerings
Content Editor
Images
Weather
Maps
Driving Directions
Logo Creator
Calculator
- Marketing Services
Search Engine Placement
Domain Registration
Banner Ad Creation
Banner Ad Exchange
E-forms
Message Templates
Broadcast email
- Commerce Services
Online Store
Inventory Management
Secure Shopping Cart
Auto Tax Calculator
Auto Shipping Calculator
Order Processing
Merchant Account Services
Auctions
- Community Services
Events Calendar
Reservations
Appointments
Message Boards
Chat
- Management Services
Query Reporting
Analysis
Custom Reports
Management Console
Notification
- Storage
20MB of Disk Space
16
EXHIBIT C
MEMBERSHIP TERMS OF SERVICE
Welcome to xxx.xxxxxxx.xxx ClientCare Inc, Inc., ("ClientCare Inc"), a Arizona
Corporation, provides the web site ClientCare Inc and all services offered
through the web site (collectively the "Site"), subject to the following Web
Site Access Agreement ("Agreement"). Your access to and use of the Site is
governed by this Agreement. As used in this Agreement "ClientCare Inc" "We,"
"Us," or "Our refers to ClientCare Inc, Inc. "You" or "Your" refers to you, a
small business owner subscribing this Site.
TABLE OF CONTENTS
---------------------------------------------------------------------
1. ELECTRONIC TRANSACTIONS 11. LINKS
2. DESCRIPTION OF SERVICE 12. WARRANTIES
3. LICENSE TO USE THE SITE 13. DISCLAIMER OF
WARRANTIES
4. PROTECT YOUR PASSWORD: 14. LIMITATION OF LIABILITY
YOU AUTHORIZE ALL USES
MADE OF IT
5. CLIENTCARE INC'S PRIVACY POLICY 15. THIRD PARTY
BENEFICIARY
6. CONDUCT ON THE SITE 16. EXPORT CONTROLS
7. CONTENT SUBMITTED TO 17. AMENDING THIS
THE SITE AGREEMENT
8. INDEMNITY 18. FEES; PAYMENTS
9. RECORD RETENTION 19. GENERAL INFORMATION:
WASHINGTON CHOICE OF
LAW, JURISDICTION & VENUE;
ONE YEAR STATUTE OF
LIMITATIONS
10. TERMINATION
---------------------------------------------------------------------
1. ELECTRONIC TRANSACTIONS
-----------------------
Communications and transactions at this Site are conducted electronically,
ClientCare Inc may provide all communications, disclosures, and notices
electronically including, without limitation, in text on a web page or via email
to any email address you may provide. - If you do not wish to deal with
ClientCare Inc electronically, please do not use this Site.
All electronic records are deemed sent when properly addressed and when they
enter an information processing system outside the control of the sender. All
electronic records are deemed received when the record enters an information
processing system that the recipient has designated or uses for the purpose of
receiving electronic records of the type sent, in a form capable of being
retrieved from that system.
17
2. DESCRIPTION OF SERVICE
----------------------
The Site currently permits small business owners to maintain a business presence
on the Internet via personalized web pages. Unless explicitly stated in any
offer from ClientCare Inc to amend this Agreement, any new features that augment
or enhance the current Site, including the release of new ClientCare Inc
features and services, are subject to this Agreement
3. LICENSE TO USE THE SITE
-----------------------
ClientCare Inc hereby grants you a non-exclusive, non-transferable, personal
license to access and use the Site solely as necessary to create and manage
personalized web pages solely in connection with the operation of a licensed
business ("Account"). Except for the license in this Section 3, ClientCare Inc
retains all right, title, and interest in and to the Site. Subject to applicable
law, ClientCare Inc reserves the right to suspend or deny, at its sole
discretion, your access to all or any portion of the Site with or without
notice. You may not access or use the Site or any portion of the Site if such
access would violate any law. We advise you to retain a copy of this Agreement.
Permission to reprint or electronically reproduce any content available on the
Site, in whole or in part for any purpose other than as necessary to create and
manage your Account is expressly prohibited, unless you have obtained prior
written consent from ClientCare Inc. The Site is protected by copyrights,
trademarks, service marks, patents or other proprietary rights and laws under
both United States and foreign laws. All rights not expressly granted herein are
reserved to ClientCare Inc and its licensors.
4. PROTECT YOUR PASSWORD: YOU AUTHORISE ALL USES MADE OF IT.
--------------------------------------------------------
You are responsible for maintaining the confidentiality of the password that you
choose to access and use the Site and your Account. Subject to applicable law,
you agree to be liable for all uses of your Account whether or not actually
authorized by you, including but not limited to access to your Account
information through the "Manage your Site" feature. This means that you should
not supply your password to anyone who is not authorized to take actions for
you.
5. CLIENTCARE INC PRIVACY POLICY
-----------------------------
Our Privacy Policy is a part of this Agreement and its terms are incorporated by
--------------
this reference. Please read it now (by clicking on "Privacy Policy"). The
policy explains how certain information about you may be used.
6. CONDUCT ON THE SITE
-------------------
You understand that all information, data, text, files, software, music, sound,
photographs, graphics, video, messages or other posted or transmitted by you
through your Account and the Site, are your sole responsibility. This means that
you, and not ClientCare Inc, are entirely responsible for all content that you
or users of your web site upload, post or otherwise transmit via the Site,
ClientCare Inc does not control the content on this Site and does not guarantee
the accuracy, integrity or quality of any content. You understand that by using
the Site, you may be exposed to content that is offensive, indecent or
objectionable. Further, you agree to not use the Site to:
(a) upload, post or otherwise transmit any content that is unlawful, harmful,
threatening, abusive, harassing, tortuous, defamatory, slanderous, vulgar,
obscene, libelous, invasive of another's privacy, hateful, embarrassing, or
racially, ethnically or otherwise objectionable to any other person or entity as
determined by ClientCare Inc in its sole discretion;
(b) impersonate any person or entity, including, but not limited to, a
ClientCare Inc staff, or falsely state or otherwise misrepresent your
affiliation with a person or other entity;
(c) forge headers or otherwise manipulate identifiers in order to disguise the
origin of any content transmitted through the Site or develop restricted or
password-only access pages, or hidden pages or images (those not linked to from
another, accessible page);
18
(d) upload, post, or otherwise transmit any content that you do not have a right
to transmit under any law or under contractual or fiduciary relationships (such
as inside information, proprietary and confidential information learned or
disclosed as part of employment relationships or under nondisclosure
agreements);
(e) upload, post or otherwise transmit any content that infringes any patent,
trademark, trade secret, copyright or other intellectual property or proprietary
rights of any party or the privacy or publicity rights of others;
(f) upload, post or otherwise transmit any unsolicited or unauthorized
advertising, promotional materials, "junk mail," "spam," "chain letters"
"pyramid schemes," or any other form of solicitation;
(g) upload, post or otherwise transmit any content that contains viruses or any
other computer code, files or programs which interrupt, destroy, limit the
functionality of, or cause damage to any computer software or hardware or
telecommunications equipment;
(h) disrupt the normal flow of dialogue, cause a screen to "scroll" faster than
other users of the Site are able to type, or otherwise act in a manner that
negatively affects other users' ability to engage in real time exchanges;
(i) interfere with or disrupt the Site or servers or networks connected to the
Site, or fail to comply with any requirements, procedures, policies or
regulations of networks connected to the Site;
(j) intentionally or unintentionally violate any applicable local, state,
national or international law, including, but not limited to, regulations having
the force of law;
(k) "stalk," harass, or otherwise harm another;
(l) collect or store personal data in violation of any laws governing privacy;
(m) promote or provide instructional information about illegal activities,
promote physical harm or injury against any group or individual, or promote any
act of cruelty to animals;
(n) use your Account as storage for remote loading or as a door or signpost to
another home page, whether inside or beyond the Site;
(o) reproduce, duplicate, copy, sell, resell or exploit any portion of the
Site, use of the Site, or access to the Site;
(p) engage in any other conduct that inhibits any other person from using or
enjoying the Site;
(q) engage in any other behavior on the Site, which in ClientCare Inc's sole
discretion is unacceptable.
ClientCare Inc may (but is not obligated) to remove your content and terminate
your Account and access to the Site for any reason, with or without notice to
you, including without limitation, your web page or any listings on your web
page that do not conform with the rules for the Site.
7. CONTENT SUBMITTED TO THE SITE
-----------------------------
By submitting content to the Site for any purpose, including use in connection
with your Account, you grant ClientCare Inc a world-wide, royalty-free,
perpetual, irrevocable, non-exclusive license to use, copy, reproduce, modify,
create derivative works from, adapt, and publish, edit, translate, sell,
distribute, publicly perform and display the content without any limitation and
in any media or any form now known or later developed for the purpose of
providing you services under this Agreement. You acknowledge that ClientCare Inc
does not pre-screen content, but that ClientCare Inc and its assignees will have
the right (but not the obligation) in their sole discretion to refuse or remove
any content that is available via the Site. You agree that you must evaluate and
bear all risks associated with, the use of any content, including any reliance
on the accuracy, completeness, or usefulness of such content.
19
8. INDEMNITY
---------
You agree to defend, indemnify and hold harmless ClientCare Inc, and its
subsidiaries, affiliates, officers, directors, agents, co-branders or other
partners, and employees, harmless from any claim or demand, including reasonable
attorneys' fees, due to or arising out of your content, your use of the Site or
your Account your violation of the this Agreement or any third party's rights.
ClientCare Inc reserves the right, at its own expense, to participate in the
defense of any matter otherwise subject to indemnification from you but shall
have no obligation to do so. You shall not settle any such claim or liability
without the prior written consent of ClientCare Inc if the settlement would
affect ClientCare Inc's ability to provide the Site.
9. TERMINATION
-----------
ClientCare Inc may terminate this Agreement and your access to the Site upon
thirty (30) days notice with or without cause, ClientCare Inc may terminate this
Agreement and your access to the Site immediately if you breach this Agreement.
In the event that ClientCare Inc terminates this Agreement without cause and you
have prepaid for services, you may request a refund of any undisputed prepaid
fees.
10. LINKS
-----
We may provide, or third parties may provide, links to other Internet sites or
resources. ClientCare Inc is not responsible for and does not endorse the
informational content or any products or services available through other
Internet sites or resources, and does not make any representations regarding its
content or accuracy. We do not control any third party Internet sites and we are
not liable for any technological, legal, or other consequences that arise out of
your visit or transactions there. Your use of third party Internet sites is at
your own risk and subject to the terms and conditions of use for such sites.
This means that we are not your agent and will not be a party to any agreement
that you may enter at third party Internet sites.
11. WARRANTIES
----------
You represent and warrant for the benefit of ClientCare Inc and ClientCare Inc's
licensors, suppliers, and any third parties mentioned on the Site that: (a) you
possess the legal right and ability to enter into and make the representations
and warranties contained in this Agreement; (b) all information that you submit
to us is true and accurate; (c) you will keep your registration information
current; (d) you will be responsible for all use of your Account even if such
use was conducted without your authority or permission; (e) you will not use the
Site for any purpose that is unlawful or prohibited by this Agreement: and (f)
all content submitted to the Site is owned by you and ClientCare Inc's use of
the content does not infringe or violate the intellectual property or other
rights of any third parties; and (g) you have a valid business license.
12. DISCLAIMER OF WARRANTIES
------------------------
THIS SITE AND ALL INFORMATION ACCESSIBLE ON OR THROUGH IT IS PROVIDED "AS IS,"
"AS AVAILABLE," "WITH ALL FAULTS," AND WITHOUT WARRANTY OF ANY KIND, ClientCare
Inc GIVES NO EXPRESS WARRANTIES AND DISCLAIMS: (A) ALL IMPLIED WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY; FITNESS FOR A
PARTICULAR PURPOSE; AVAILABILITY OF THE SITE; LACK OF VIRUSES, WORMS, TROJAN
HORSES, OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES;
ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, CURRENCY, OR USEFULNESS OF ANY
CONTENT ON THE SITE; AND (B) ANY DUTIES OF REASONABLE CARE, WORKMANLIKE EFFORT
OR LACK OF NEGLIGENCE IN CONNECTION WITH THE SITE-QR CONTENT AVAILABLE ON IT.
THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IN
CONNECTION WITH THE SITE AND CONTENT AVAILABLE ON IT IS BORN BY YOU.
IN ADDITION, ClientCare Inc DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, TITLE,
OR QUIET ENJOYMENT IN CONNECTION WITH THE SITE AND INFORMATION AVAILABLE ON IT.
13. LIMITATION OF LIABLLITY
-----------------------
20
IN NO EVENT WILL ClientCare Inc BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY DAMAGES, OR XXX OTHER DAMAGES
(INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS
INTERRUPTION, LOSS OF DATA, PERSONAL INJURY, FAILURE TO MEET ANY DUTY INCLUDING
ACTS OF GOOD FAITH OR OF REASONABLE CARE, LACK OF NEGLIGENCE, AND FOR ANY OTHER
PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY CONNECTED WITH
THE USE THIS SITE AND ANY INFORMATION AVAILABLE ON IT, THE DELAY OR INABILITY TO
USE THE SITE OR ANY INFORMATION, EVEN IN THE EVENT OF FAULT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF
ClientCare Inc AND EVEN IF ClientCare Inc HAS BEEN ADVISED OF THE" POSSIBILITY
OF SUCH DAMAGES. THESE LIMITATIONS AND EXCLUSIONS REGARDING DAMAGES APPLY EVEN
IF ANY REMEDY FAILS.
NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL ClientCare Inc BE LIABLE FOR ANY
AMOUNT IN EXCESS OF THE AMOUNT PAID BY YOU TO US FOR USE OF THE SITE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 13 AND 14 MAY NOT APPLY
TO YOU.
14. THIRD PARTY BENEFICIARY
-----------------------
15. EXPORT CONTROLS
---------------
You agree to abide by U.S. and other applicable export control laws and not to
transfer, by electronic transmission or otherwise, any content or software
subject to restrictions under such laws to a destination prohibited under such
laws, without first obtaining, and then complying with, any requisite government
authorization. You further agree not to upload to your web site(s) hosted by
ClientCare Inc any data or software that cannot be exported without prior
written government authorization, including, but not limited to, certain types
of encryption software.
16. AMENDING THIS AGREEMENT
-----------------------
This Agreement constitutes the entire agreement between you and ClientCare Inc
about this Site and your use of it and it supercedes any prior or
contemporaneous communications or displays whether electronic, oral, or written
between you and ClientCare Inc regarding the Site (including, but not limited
to, any prior versions of the Agreement). Except as described below in Section
17 regarding changes to fees, this Agreement may not be amended except by a
specific offer from ClientCare Inc designated as an offer to amend its terms
which is accepted by you in the manner indicated in the offer. If you accept the
amended terms, they supersede any previous terms in the Agreement (or any
amended version of the Agreement). If you do not accept the amended terms, you
may terminate the Agreement and request a refund of any undisputed prepaid fees.
17. FEES; PAYMENT
-------------
Your use of the Site and your Account is subject to fees that ClientCare Inc
sets from time to time. Click here to see the current fee schedule for the
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services offered at the Site. ClientCare Inc reserves the right to change its
services or any fees charged for them upon 30 days' notice. If you do not agree
to changes in fees, you may terminate your Account. You are responsible to pay
ClientCare Inc for all fees, duties, taxes, and assessments arising out of your
use of this Site and your Account. Current applicable charges
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for the services are due in advance of each month for which the services are
provided. If any service, other than the basic service plan, is selected by you,
payment shall be due in full upon ordering the service. Only valid credit cards
acceptable to ClientCare Inc may be used for orders placed at the site, and all
refunds will be credited to the same card. By submitting your order for
processing, you authorize us to charge your order (including taxes and any
amounts shown to you before submission) to your card. If your card cannot be
verified, is invalid, or is not otherwise acceptable, your order will be
suspended automatically and we will send you an e-mail notice. You must resolve
any problem within the time stated in the email notification or your order will
be cancelled without further notice. You will also be liable for all attorney
and collection fees arising from ClientCare Inc's efforts to collect any unpaid
balance of your Account(s).
18. GENERAL INFORMATION
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This Agreement does not create any agency, employment, partnership, joint
venture, franchise or other similar or special relationship between you and
ClientCare Inc. Neither party will have the right or authority to assume or
create any obligations or to make any representations, warranties or commitments
on behalf of the other party or its affiliates, whether express or implied, or
to bind the other party or its affiliates in any respect whatsoever.
Your rights and obligations under this Agreement shall not be transferred or
assigned directly or indirectly without the prior written consent of ClientCare
Inc.
This Agreement and the relationship between you and ClientCare Inc is governed
by the laws of the State of Arizona without regard to its conflict of law
provisions. You and ClientCare Inc agree to submit to the personal and exclusive
jurisdiction of the courts located within the county of Maricopa, Arizona. The
failure of ClientCare Inc to exercise or enforce any right or provision of this
Agreement will not constitute a waiver of such right or provision.
If any provision of this Agreement is found by a court of competent jurisdiction
to be unenforceable, then the provision (or portion) will be deemed superseded
by valid enforceable language that most clearly matches the intent and
allocation of risk in the original provision {or portion), and the other
provisions of this Agreement remain in full force and effect. You agree that
regardless of any statute or law to the contrary, any claim or cause of action
arising out of or related to use of the Site or this Agreement must be filed
within one (1) year after such claim or cause of action arose or be forever
barred. The section titles in the Agreement are for convenience only and have no
legal or contractual effect.
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EXHIBIT D
PRIVACY POLICY
CLIENTCARE INC USER PRIVACY POLICY
This Privacy Statement describes how ClientCare Inc, Inc. may collect and uses
information through xxx.xxxxxxx.xxx ("Site").
WHAT INFORMATION MIGHT CLFENTCARE TNC COLLECT FROM USERS OF THE SITE?
ClientCare Inc and ClientCare Inc's service providers might collect information
that you provide that personally identifies you when you use the Site. Such
information may include, but is not limited to, your name, e-mail alias, user
identification password and other information which can be connected to you via
use of cookies (described below) (collectively "Personal Information").
Additionally, in the event that you purchase products or services from the Site
you will need to disclose financial information such as a credit card to pay for
such products or services ("Financial Information"). ClientCare Inc may collect
"AGGREGATE INFORMATION" which does not indicate the identity of any particular
user, but describes the habits, usage patterns and/or demographics of users as a
group.
WHAT ARE COOKIES AND HOW ARE THEY USED?
A cookie is a very small text file placed on your hard drive by a computer
server. It serves as your identification card and is uniquely yours. Cookies
tell us that you returned to a specific web page on our Site and help us track
your preferences and transactional habits. Cookies recognize your password and
help us personalize your experience at the Site by permitting our computer
server to "remember" who you are.
By modifying your browser preferences you may chose to accept all cookies, to be
notified when a cookie is set, or to reject all cookies. If you choose to reject
all cookies you may be unable to use those ClientCare Inc services that require
registration in order to participate. Generally, we might use cookies to:
(1) Remind us of who you are. This cookie is set when you register or "Sign In"
and is modified when you "Sign Out" of our ClientCare Inc services.
(2) Estimate our audience size. Each browser accessing ClientCare Inc is given a
unique cookie which is then used to determine the extent of repeat usage, usage
by a registered user versus by an unregistered user, and to help target
advertisements based on user interests and behavior.
(3) Measure certain traffic patterns, which areas of ClientCare Inc you or your
page visitors have visited, and those visiting patterns in the aggregate. We use
this research to understand how our users' habits are similar or different from
one another so that we can make each new experience on ClientCare Inc a better
one. We may use this information to better personalize the content, banners and
promotions that you and other users may see on our sites.
(4) ClientCare Inc might also collects IP addressers system administration and
to report aggregate information to our advertisers.
HOW MIGHT CLIENTCARE INC USE AND SHARE MY PERSONAL INFORMATION?
For Small Business Owners.
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ClientCare Inc and ClientCare he's service providers might use your Personal
Information to operate the Site, provide you services, open your Account, and
enforce or investigate your Membership Terms of
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Service regarding it. We also collect and store Personal Information regarding
users that your personalized web pages (your Account).
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For General Users Visiting Small Business Owner
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ClientCare inc and ClientCare he's service providers might use your Personal
Information to operate the Site provide you services, and to enforce or
investigate our User Terms of Service and claims regarding it. Your Personal
Information may be stored and it may be shared with the small business owners
whose web pages you visit ClientCare Inc does not control the use of your
Personal Information made by any small business owner - so please contact them
directly if you have questions about their policies concerning the use of your
Personal Information.
PROMOTIONAL OFFERS FROM CLIENTCARE INC AND FROM THIRD PARTIES
We may send you information from time to time about ClientCare Inc's promotional
offerings and we may share your Personal Information with third parties who wish
to send you promotional offerings. Your consent to receipt of promotional
offerings may be given to us via or in response to an email communication
requesting your consent or otherwise during registration for use of the Site in
the appropriate check boxes (if any) within the Site signifying your consent. To
stop delivery of promotional information from ClientCare Inc please send e-mail
to Xxx@xxxxxxxxxxx.xxx. You may also be able to stop delivery of promotional
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offerings from others by contacting them directly.
OTHER SITUATIONS IN WHICH PERSONAL INFORMATION MAY BE DISCLOSED
We store and disclose Personal Information as allowed or required by applicable
law or when deemed advisable in ClientCare Inc's discretion. This means that we
may make disclosures that am necessary or advisable to conform to legal and
regulatory requirements or processes and to protect the rights, safety and
property of ClientCare Inc, users of the Site and the public.
Financial Information: Generally, we do not share Financial Information with
outside parties except to the extent necessary to provide you with any product
or service that you may have purchased.
Aggregate Information: ClientCare Inc and ClientCare Inc's service providers
reserve the right to freely use and distribute all Aggregate Information
collected at this Site.
WHAT IS CLIENTCARE INC'S POLICY ABOUT ALLOWING ME TO UPDATE OR CORRECT MY
PERSONAL INFORMATION?
You may update or edit your Personal Information at any time, if you are a small
business owner, by accessing your Account, or if you are a user of the Site
generally by sending email to Xxx@xxxxxxxxxxx.xxx.
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WHAT SECURITY PRECAUTIONS ARE IN PLACE TO PROTECT THE LOSS, MISUSE, OR
ALTERATION OF MY INFORMATION?
We take reasonable steps to protect Personal Information and use encryption
technology to help ensure security at the Site. However, no data transmission
over the Internet or any wireless network can be guaranteed to be 100% secure.
As a result, while we strive to protect your Personal Information ClientCare Inc
cannot ensure or warrant the security of any information communicated to the
Site.
QUESTIONS, COMMENTS, CONCERNS
If you have any questions or comments about our use of Personal
Information, please contact us at Xxx@djronhoward.ocm--
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EXHIBIT E
MARKETING
XX.XXX OBLIGATIONS:
1. Provide position statements, marketing data, and branding requirements to
ClientCare Inc to promote the Private Label Service.
2. Promote Private Label Service via;
2.1. A mutually agreed upon press release
2.2. Additional marketing promotions will be mutually agreed upon by the
parties
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EXHIBIT F
MONTHLY SERVICE FEE
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Maximum Number Monthly Per Site
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of Pages Per Site Charge
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56 $ 12.50 *
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* ClientCare to pay XX.Xxx Per Site, Per Month
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EXHIBIT G
PARTNER ESCALATION SUPPORT
Technical Support: Technical Support is provided by a designated specialist in
the xxxxx.xxx Customer Service Center ("CSC") in response to a request from the
Partners designated Technical Contacts. The CSC is the focal point of service
delivery and service interaction with partner. Both telephone support and
electronic services are offered from the CSC. Only Partner's Contact(s) will
communicate with the designated CSC specialists.
SUBMITTING A SERVICE REQUEST: TO SUBMIT A REQUEST FOR SERVICE, PARTNER HAS THREE
SERVICE OPTIONS:
(a) over the phone, Contact will dial xxxxx.xxx service number as supplied
to the Partner by xxxxx.xxx. When a CSC specialist answers the phone,
Partner contact will be prepared to discuss the problem with the
specialist.
(b) via electronic chat, contact will connect to support chat via the
xxxxx.xxx website (xxx.xxxxx.xxx)
(c) via email, Contact will enter the service request and send it to
xxxxxxx@xxxxx.xxx.
In order to submit a service request, either telephonically or
electronically, Partner will employ the following procedures:
(a) provide a clear description that fully explains what the problem is,
and when the problem occurs; and
(b) describe the steps taken to attempt to resolve the problem.
DEFINITIONS OF SUPPORT PRIORITIES:
PRIORITY 1: (P1) status is reserved for critical and severe problems. These
problems occur when the XX.Xxx service is down, thereby halting
transactions throughout the site, and there is no workaround.
PRIORITY 2: (P2) Serious problem: a major function is experiencing a
reproducible problem which causes major inconvenience; common operations
fail consistently; service exhibits system-wide security holes
PRIORITY 3: (P3) Problem: a fundamental function is experiencing an
intermittent problem, or a common operation sometimes fails; a less common
operation fails consistently
PRIORITY 4: (P4) Minor problems: a less common operation fails
occasionally; all other errors
Priority 5: (P5) Request for enhancements
SUPPORT RESPONSE TIME: Upon receipt of a service request, the designated CSC
specialist will reply to Contact to discuss the problem within one (1) business
hour on a P-1 request, within four (4) business hours on a P-2 request, within
eight (8) hours on a P-3 request, and within twenty four (24) hours on a P-4 or
P-5 request from the time of receipt of the service request. Business hours are
standard operation hours of xxxxx.xxx
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