FMEC Client Agreement

and e3Business LLC Series 1, doing business as Functional Medicine Energy Center (“FMEC”). Whereas Client is interested in providing I&FM resources to its patients; FMEC maintains and develops an online platform with I&FM resources (“FMEC Platform”) and; Client wishes to utilize the FMEC Platform, (“Practice Platform”), the parties agree as follows:

1)     Relationship.  Subject to the terms and conditions of this Agreement, this engagement is for Client to utilize the FMEC Platform for their Practice Platform.

2)     Term. This Agreement shall be effective for one (1) year from the date of execution and shall automatically renew for successive one-year terms unless terminated per Section 6 of this Agreement.

3)     Client Duties. As part of Client’s duties per this Agreement, Client shall:

a)     Create and maintain content for the Practice Platform.

b)     Ensure compliance with all applicable laws, regulations and licensing related to the products and services presented on the Practice Platform. 

c)     Market their Practice Platform, such as adding “A Functional Medicine Energy Center Affiliate” and the FMEC Affiliate Logo to the Practice website if requested by FMEC.

d)     Follow established guidelines in administering their patient’s access to the Practice Platform, including securing patient agreements, processing payments and payment disputes, and providing and servicing patient communications.

e)     Assist FMEC in the administration of Practice Platform services.

f)      Utilize mutually agreed upon practice resources for practice management.

4)     FMEC Duties. As part of FMEC’s duties per this Agreement, FMEC shall:

a)     Provide a FMEC subdomain to Client for their Practice Platform.

b)     Assist Client with creating and maintaining their Practice Platform.

c)     Provide reports to Client for Practice Platform fees per Section 5 below. 

d)     Promote the Client as a FMEC affiliate in marketing material, online and in any type of directory developed by FMEC.

5)     Receiving Party may adjust payments by any disputed amounts, refunds, charge backs or liabilities associated with the Practice Platform. FMEC may adjust Practice Platform fees by no more than 5% annually.

Receiving party shall not pay to Client any fees or other compensation on any Practice Platform Resource whether included in the Total FMEC Fee or added by patients. Parties agrees that any change to the Practice Platform cost or Total FMEC Fee requires the approval of Client and FMEC. Client agrees that the Client may not collect payments from patients for any purpose similar in nature to the FMEC Platform, Practice Platform, I&FM Resources or Total FMEC Fee.  

 Client agrees that FMEC may, at FMEC’s sole discretion, select all third-parties utilized to process payments. Client agrees to complete all documentation necessary for third-party processing of payments. Client agrees that FMEC retains all rights to limit Practice Platform content, including restricting file size and Platform size.

Client agrees that Practice Platform users who are no longer active users of the Practices Platform (i.e., “legacy users”) may continue accessing the FMEC Platform and related I&FM content, (but not the Practice Platform), at a cost established solely by FMEC. FMEC agrees to pay Client 50% of the platform fee generated from Client’s legacy users so long as this Agreement is active. Client acknowledges that Client’s users may continue with the FMEC Platform after the Termination of this Agreement. FMEC shall pay no fees to Client after the Termination of this Agreement.

Client retains all rights to Client’s content on the Practice Platform. Client is responsible for the content on their Practice Platform.

6)     Termination.  FMEC or Client may terminate this Agreement with 30-day written notice to the other party, with Termination effective upon 30 days after receipt of Notice per Section 14 below. Payments from FMEC to Client shall continue through the 30-day notice period. If the Client fails to provide a 30-day notice of termination, Client shall be responsible for paying 85% of the requested pro-rated refunds. FMEC may retain payments to address pro-rated refunds, with any remaining balance paid within 60 days. Any balance owed by Client must be paid within 60 days.

7)     Liquidated Damages. Client acknowledges that FMEC has invested significant time, effort and resources into the FMEC Platform and its utilization by clients. Unless provided by FMEC in writing, Client agrees that in the thirty-six months (36) following Termination of this Agreement either party, Client shall not utilize, support or develop any service similar to FMEC’s Platform, including:

a)     Employing a recurring fee or subscription fee to access I&FM content.

b)     Utilizing an online site with restricted access to patients available for a fee.

c)     Developing a network of I&FM providers accessed by patients for a fee.

Client acknowledges that if Client engages in any of the activities of Section 8a-8c, Client will pay to FMEC two (2) times the Client’s previous six (6) months Practice Platform fees received by Client as liquidated damages. Such damages shall be due following the date of Termination in equal payments every three (3) months for thirty-six (36) months. For example, if Client has received $5,000 a month for the previous six months prior to Termination, liquidated damages would be $60,000 (2 x $5,000 x 6 months), payable in twelve (12) quarterly payments of $5,000 staring three months after Termination. 

If Client pursues any of the activities in Section 8a-8c and does not pay to e3Business liquidated damages due, Client acknowledges that e3Business may obtain a restraining order against continued activities in Section 8a-8c and a summary judgement of remaining liquidated damages owed. In the event of a summary judgement for liquidated damages, Client acknowledges that ALL liquidated damages, court costs and expenses will be due upon the entry of the summary judgement.

8)     Confidentiality. Neither party shall disclose or discuss the specifics of any trade secret, technical information, form, agreement or operational approach developed by the other party or its personnel with any third party or its personnel. Neither party shall continue to use, adapt or create a similar product of any trade secret, technical information, form, agreement or operational approach developed by the other party after the termination of this Agreement.

Client acknowledges that FMEC’s operations, including its structure, contracting and management of practices, resources and vendors through a client site or “platform” constitutes confidential information of FMEC. Client acknowledges that breach of confidentiality regarding FMEC’s confidential information shall trigger Termination of this Agreement and Liquidated Damages in accordance with Section 7 above.

9)      Hold Harmless. FMEC and Client agree to hold harmless the other party, their owners, officers, directors, managers, members, employees, resources, representatives, agents, consultants, affiliates, and vendors for any and all claims or liability arising from this Agreement. Client agrees to hold harmless Practice Platform Resources for content included on the Practice Platform. Except for Section 5, Section 7 and Section 8, the exclusive remedy available to either party for any breach of this Agreement is Termination in accordance with Section 6.

10)     Choice of Law.  The laws of the state of Nevada shall govern the validity of this Agreement, the construction of its terms and the interpretation of the rights and duties of the parties hereto.

11)     Dispute Resolution. Parties agree that, except for credit card/bank charge/charge back disputes, Section 7 “Liquidated Damages,” and Section 8 “Confidentiality,” the sole remedy for any controversies arising out of the terms of this Agreement or its interpretation for either party shall be Termination of the Agreement in accordance with Section 6.

12)     Headings.  Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.

13)     Waiver.  Waiver by one party hereto of breach of any provision of this Agreement by the other shall not operate or be construed as a continuing waiver.

 

14)     Notices.  Any notice or communication to be given under the terms of this Agreement shall be in writing and shall be personally delivered or sent by email, overnight delivery, or registered or certified mail, return receipt requested (“Notice”).  Notice shall be effective: (a) if personally delivered, when delivered; (b) if by email, on the day of the receipt of the return receipt requested; (c) if by overnight delivery, the day after delivery thereof to a reputable overnight courier service, delivery charges prepaid; and (d) if mailed, at midnight on the third business day after deposit in the mail, postage prepaid by certified mail.  Notices shall be addressed as follows:

If to e3B:     

e3Business LLC Series 1

dba Functional Medicine Energy Center

ATTN: Brett Sparks, Manager

145 Sapodilla Lane

Las Vegas, NV 89144

Email: bsparks@e3Business.com

Any party hereto may change its address for purpose of this paragraph by written notice given in the manner provided above.

15)     Construction. Common nouns and pronouns and all other terms shall be deemed to refer to the masculine, feminine, neuter, singular and/or plural, as the identity of the person or persons, firm or association may require in the context. Each party has participated in negotiating and drafting this Agreement, so if an ambiguity or a question of intent or interpretation arises, this Agreement is to be construed as if the parties had drafted it jointly, as opposed to being construed against a party because it was responsible for drafting one or more provisions of this Agreement.

16)     Modification or Amendment.  No amendment, change or modification of this Agreement shall be valid unless in writing signed by the parties hereto.

17)     Entire Understanding.  This document and any exhibit attached constitute the entire understanding and agreement of the parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.

18)     Unenforceability of Provisions.  If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.

IN WITNESS WHEREOF the undersigned have executed this Agreement as of the day and year first written above.  The parties hereto agree that facsimile signatures shall be as effective as if originals.

 

Brett W. Sparks, President, e3Business, LLC/Date:

[Form is not executed until counter signed and dated.]