MARKETING AND BUSINESS DEVELOPMENT AGREEMENT
Between Lifelog Health Network, LLC (“LLHN”), a South Carolina Limited Liability Corporation located at 111 E. Marion Avenue, #170, North Augusta, SC 29841, and Sales Consultant (“CONSULTANT”),an independent representative Sales Consultant as listed in the Signature Section
Lifelog Health Network, LLC (LLHN) is a digital health information consulting and managed services company focused on bringing the most advanced data management and wearable technology applications to healthcare worldwide.
LLHN desires to retain CONSULTANT to market and sell its products and services.
I. In consideration for the mutual promises, covenants, and agreements made below, the Parties, intending to be legally bound, agree as follows:
- Sales Distribution
- Recurring Revenues
- Overrides and
CONSULTANT shall earn fees from its marketing and sales efforts that directly result in the following sales. All fees are based on net sales:
- 5% of Hardware Sales
- 10% of Software License Sales
- 10% of Professional Services
- 10% of Managed Services
- 3% of Monthly Subscriptions
- 3% of Referrals and Leads (if closed by 3rd party other than CONSULTANT)
- 3% of Sales by a Managed CONSULTANT (agent):
- The Managed CONSULTANT must have a direct agreement with LLHN to qualify.
- If LLHN published prices are discounted, CONSULTANT commissions will be discounted accordingly to match new price.
II. Independent Contractor
CONSULTANT and its agents are not an employee of LLHN for any purpose whatsoever. LLHN is only interested in results from CONSULTANT and CONSULTANT shall have complete control of the manner and means of performing under this Agreement.
CONSULTANT does not have, nor shall CONSULTANT hold itself out as having any right, power or authority to create any contract or obligation, on behalf of, or binding upon LLHN, unless LLHN shall consent in writing.
CONSULTANT may represent other companies to market their products and services that do not compete with the products and services covered under this Agreement.
Individuals, corporations and other business entities solicited by CONSULTANT to provide funding or to purchase products or services from LLHN shall be submitted to and subject to approval by LLHN. Only LLHN may decide in its sole discretion whether to accept or reject any individual or entity solicited by CONSULTANT.
IV. Best Efforts
CONSULTANT shall use its best efforts to solicit individuals, corporations, and other business entities to purchase products or services from LLHN.
V. Term and Termination.
The initial term of this Agreement is for three years from the date first written above. Thereafter, unless terminated in writing at least sixty days prior to the end of the term, this Agreement shall automatically renew every two years unless terminated by agreement or upon acquisition of LLHN by a third party. Either Party may terminate this Agreement in the event of a material breach if the breach is not cured within 14 days after receipt of a written notice of breach from the non-breaching Party. The Parties may agree to terminate this Agreement at any time in a writing executed by both Parties, except this will not apply to any fundraising or sales agreements already in place.
VI. Force Majeure.
LLHN and CONSULTANT shall not be deemed to be in default of any provision of this Agreement, nor be liable for any delay, failure in performance or interruption of services, resulting directly or indirectly from acts of God, embargoes, quarantines, civil or military authority, riot, civil disturbance, insurrection, war, terrorism, other catastrophes or any such other cause beyond their control; provided, however, that the Parties shall exercise reasonable efforts to the extent reasonably practicable, to remedy any such cause of delay or cause preventing performance.
Each of the Parties covenants and agrees that it shall not, during the Term of this Agreement and for a period of twelve (12) months after the termination of this Agreement, regardless of the reason for termination, directly or indirectly, employ, engage, contract with or in any other way utilize or solicit or make any offers for the services of any of the other party's customers, clients, employees, contractors or other personnel during the term of their employment or engagement with such party.
VIII. Confidential Information.
- Confidential Information: In connection with business between LLHN and CONSULTANT, either party may find it beneficial to disclose to the other, certain information that the disclosing party considers to be proprietary and/or confidential, (hereinafter referred to as “Confidential Information”). “Confidential Information” may include, but is not limited to all (i) trademarks, service marks, industrial designs, trade dress, inventions, logos, trade names, and corporate names and registrations and applications for registration thereof, (ii) copyrights and registrations and applications for registration thereof, (iii) computer software, programs, data, and documentation, (iv) trade secrets and confidential business information (including ideas, formulas, compositions, work products, (whether patentable or unpatentable and whether or not reduced to practice)), know-how, manufacturing and production / operations processes and techniques, testing, research and development information, drawings, specifications, designs, plans, proposals, reports technical data, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing activities and plans, business strategies, training materials, client prospects, product descriptions, any contract discussions with a third party, and customer and supplier lists and information, (v) other corresponding proprietary rights worldwide, (vi) copies and tangible embodiments thereof (in whatever form or medium) and (vii) any idea, discovery, concept, finding, research, data specification, process, process work flow, algorithm, drawing, sketch, product schematic, diagrams, report, study, photograph, sample and prototype, unreleased products or services.
- Protection of Confidential Information: Each party(s) acknowledges that the other party(s) claims its Confidential Information as a special, valuable and unique asset. For itself and on behalf of its officers, owners, directors, agents, employees, and affiliates, each party(s) agrees that it will keep in confidence all Confidential Information and that it will not directly or indirectly disclose to any third party or use for its own benefit, or use for any purpose other than a proposed transaction, any Confidential Information it receives from the other party(s).
- No Commitment: Confidential Information provided by one party to the other(s) does not, and is not intended to represent a commitment by either party(s) to enter into any business relationship with the receiving party(s) or with any other entity. If the parties desire to pursue business opportunities, the parties will execute a separate written agreement to govern such business relationship.
- Performance: Other than in the performance of this Agreement, neither CONSULTANT nor its employees, shall use or disclose to any person or entity any Confidential Information of LLHN (whether in written, oral, electronic or other form), which is obtained from LLHN or otherwise prepared or discovered either in the performance of this Agreement, through access to LLHN, documents, systems and information (collectively, “Confidential Information”), or while on LLHN's premises. As used herein, the term "Confidential Information" shall include, without limitation, all Work Product as defined below, all information designated by LLHN in writing as confidential, all information or data concerning or related to LLHN’s customers, products (including the discovery, invention, research, improvement, development, manufacture, or sale thereof), processes, or general business operations (including sales costs, profits, pricing methods, organization, and employee lists), and any information obtained through access to any Information (including but not limited to computers, networks, voice mail, etc.) which, if not otherwise described above, is of such a nature that a reasonable person would believe it to be confidential or proprietary. CONSULTANT will protect the confidentiality of Confidential Information with the same degree of care as CONSULTANT uses for its own similar information; provided, however, that nothing herein will preclude CONSULTANT from using all databases, software or licenses owned or developed by CONSULTANT hereunder (subject to the confidentiality provisions) about its other engagements.
- Continuing Obligations: Unless otherwise agreed in writing, the obligations under this Section 9 shall continue for a period of three (3) years from the termination or expiration of this Agreement.
IX. Equitable Remedies.
In the event of a violation or threatened violation of the covenants and agreements contained herein, the aggrieved party, in addition to and not in limitation of any other rights, remedies or damages available at law or in equity, shall be entitled to seek equitable relief in a court of equity, including a temporary and permanent injunction against the other, or such other equitable relief as may be appropriate, including an order of specific performance.
The parties hereto will attempt to settle any claim or controversy arising out of or relating to this Agreement by consultation and negotiation in good faith and a spirit of cooperation. However, at any time before or during such negotiations, or following any unsuccessful negotiations, either party may, by written notice to the other, demand that the dispute be submitted to arbitration. Any claim or controversy arising out of or relating to this Agreement or any breach thereof shall be settled by arbitration. The venue for any such arbitration shall be in North Augusta, SC. Except as expressly set forth herein, all proceedings under this Section shall be undertaken in accordance with the commercial rules of the American Arbitration Association ("AAA"), then in force. Only individuals who are (i) lawyers engaged full-time in the practice and (ii) on the AAA register of arbitrators shall be selected as an arbitrator. There shall be one arbitrator who shall be chosen in accordance with the rules of the AAA. The parties to the arbitration shall be permitted to obtain discovery from each other in accordance with the federal rules of civil procedure. Any disputes concerning the scope of discovery requests or the compliance thereof shall be decided by the arbitrator. As soon as practicable after the conclusions of the arbitration hearing, the arbitrator shall prepare written findings of fact and conclusion of law. Judgment upon the written award may be entered and enforced in any court of competent jurisdiction. It is mutually agreed that the written decision of the arbitrator shall be valid, binding, final and non-appealable and shall be a condition precedent to any legal or equitable action that any party hereunder may contemplate against another party hereunder except to compel arbitration pursuant hereto (or as noted above). The arbitrator shall have the power to require the non-prevailing party to pay his fees and the fees of the arbitration and the prevailing party's legal fees and expert's fees. If in his opinion there is no prevailing party, the arbitrator's and arbitration fees and expenses will be borne equally by the parties thereto and each party shall pay its own legal fees and expert's fees.
XI. Miscellaneous Provisions.
- Entire Agreement: This Agreement (together with the agreements, certificates, instruments and any other documents referred to herein), sets forth all of the promises, covenants, agreements, conditions and understandings between the parties hereto, with respect to the subject matter hereof, and supersedes all prior and contemporaneous writings (including requests for proposals and responses thereto), agreements and understandings, inducements or conditions pertaining thereto, expressed or implied, oral or written, except as contained herein.
- Headings: The section headings in this Agreement and the Background of this Agreement are for reference purposes only and shall not define, limit or affect the meaning or interpretation of this Agreement.
- Assignment: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, this Agreement may not be assigned in whole or in part without the prior written consent of the other party; provided, however, this Agreement may be assigned by either party to a purchaser of all or substantially all the assets of such party or the survivor of a merger of such party and another entity or any other such successor of such party’s business.
- Governing Law: This Agreement and all questions relating to its validity, interpretation, performance and enforcement shall be governed by and construed in accordance with the laws of the state of South Carolina, notwithstanding any conflicts of laws, doctrines of such states or other jurisdictions to the contrary.
- Amendments: No amendment, alteration or modification of this Agreement shall be valid unless each such instance, amendment, alteration or modification is expressed in a written instrument executed by both parties hereto.
- No Waiver: The failure of any party to insist, in any one or more instances, on performance of any of the terms and conditions of this Agreement, shall not be construed as a waiver or relinquishment of any rights granted hereunder or of the future performance of such term, covenant or condition, but the obligations of the parties, with respect thereto, shall continue in full force and effect.
- Counterparts: This Agreement may be executed in any number of counterparts, which when taken together shall constitute an original document.
IN WITNESS, WHEREOF, the parties hereto have caused this Marketing and Business Development Agreement to be executed as of the day and year signed by the CONSULTANT above.
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