This Membership Agreement (the “Agreement”), dated as of [DATE] (the “Effective Date”), is entered into by and between Lifestyle Matrix Resource Center (”the LMRC), an Illinois ______________, and __________________ a [STATE OF ORGANIZATION] [TYPE OF ENTITY] having its principal place of business at [BUSINESS ADDRESS] (“Member”, and together with the LMRC, the “Parties”, and each, a “Party”).
Whereas, the LMRC is in the business of providing clinical tools and educational resources to help doctors and their patients at www.lifestylematrix.com (”the Services”);
Whereas, Member wishes to become a subscribing member of the LMRC to utilize the Services provided by the LMRC;
NOW THEREFORE, in consideration of the mutual covenants, terms and conditions herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Members and Membership. A “Member” may consist of one healthcare provider clinic. If an entity has multiple clinics, each clinic must become a separate Member. There are three levels of membership with the LMRC. Those membership levels are the following:
□ Practice Builder
□ Practice Pro
□ Patient Engagement
Specific details of those membership levels can be viewed at www.lifestylematrix.com
2. Term. The initial term of this Agreement is one year. At the end of the initial term, this Agreement will extend for another one year term unless Member terminates its membership at least thirty (30) days before the end of the term. This Agreement will continue to renew for subsequent terms until terminated by one of the parties.
3. Payment. Payment for membership may be made in one annual payment at the time of membership or in monthly installments. If the Agreement is renewed, payment for the subsequent term shall be executed in the same manner as the payment terms for the initial terms.
4. Grant of License.
(a) License. Subject to the terms and conditions of this Agreement, the LMRC hereby grants the Member a non-exclusive, non-sublicensable, and non-transferable license solely to access and use the Services in the course of the Member’s healthcare practice.
(i) From time to time, you may be required, as a condition of access or continued access to the Service to comply with certain terms and conditions required by the LMRC’s third party licensors and data providers. Such terms shall be legally binding on you. The LMRC uses commercially reasonable efforts to provide notice of such third party restrictions at www.lifestylematrix.com. Some restrictions may also be contained within the Service or supplied directly by the third party provider. The LMRC does not warrant that the restrictions on the website or in the Service are accurate or complete. Third party providers may also have the right to require that the LMRC terminate your access to all, or any portion of, the Service at any time, with or without notice.
(iii) The LMRC shall provide the Service to you at such times and at such frequency as it, in its sole discretion, deems appropriate. You acknowledge and agrees that the LMRC is free to select and alter the components and method of formulation of the Services, and the information and data provided in connection with the Services, without your consent and without notice. The LMRC may update, change, modify, suspend, or discontinue any aspect of the Services at any time. The LMRC may also impose limits on certain features or restrict your access to parts or all of the Services without notice or liability. You have no interest, monetary or otherwise, in any feature or content contained in the Services.
(iv) Except as expressly set forth herein or as may be authorized by the LMRC in writing, you shall not, directly or indirectly, (1) reverse engineer or attempt to ascertain the method of formulating all or any portion of the Services, or (2) license, sublicense, sell, resell, rent, lease, transfer, assign, publish, disclose, distribute or otherwise commercially exploit or make available to any third party all or any portion of the Service. You agree that you use the Services in accordance with all applicable laws, rules and regulations and the terms and conditions of this Agreement and any applicable documentation provided to you by the LMRC. You agree that (i) your use of the Services is at your sole risk; (ii) the Services do not constitute a recommendation to buy or sell securities of any kind; and (iii) the LMRC has not undertaken any liability or obligation relating to the purchase or sale of securities for or by you or any other user. You further agree that you will not use the Servicse to create an LMRC that will be used as a tradable instrument in the nature of a security.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE LMRC IS PROVIDING THE SERVICES “AS IS” AND DOES NOT MAKE ANY WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUCH SERVICE, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OR USE.
(c) No Representations. You shall not make any statement that misrepresents the value, composition, or application of the Services or represent, directly or indirectly, that any product or any service provided by you has been approved or endorsed by, or is otherwise associated with the LMRC or its third party licensors. You may not use the Services to develop any product or any service provided by you.
5. Termination. This Agreement may be terminated as follows:
(a) Either the Member or the LMRC may terminate this Agreement immediately if the other party materially breaches any of its obligations which relate to this Agreement as a whole; provided that this Agreement will continue if the breaching party remedies a breach which is capable of being remedied within 30 days of receipt of written notice of the breach.
(b) Either Member or the LMRC may terminate this Agreement immediately and without notice in the event of the other party’s (i) insolvency; (ii) adjudication of insolvency; (iii) filing of a voluntary petition in bankruptcy or a voluntary petition or answer seeking reorganization, arrangement or readjustment of its debts; (iv) agreement indicating its consent to, approval of or acquiescence in any such petition or proceeding; (v) application for, or consent or acquiescence to, the appointment of a receiver or trustee over all or a substantial part of the other party’s property or assets; (vi) failure to have dismissed within 60 days any filing of an involuntary petition against the other party seeking reorganization, rearrangement or readjustment of its debts or for any other relief under any insolvency act or law, now or hereafter existing; or (vii) having an involuntary appointment of a receiver or trustee over all or a substantial part of the other party’s property or assets.
(c) If the Member materially breaches this Agreement, the LMRC may, upon giving the Member notice, immediately suspend the Services, or any portion thereof, and the Member’s rights granted in relation thereto, without penalty, until the breach is remedied.
(d) Upon the end of the initial term or any subsequent term, the Member may opt out and choose not to renew this Agreement with at least thirty (30) days written notice before the end of a term.
(e) The LMRC may terminate this Agreement at any time with thirty (30) days written notice to the Member.
(g) Effect of Termination. Upon termination or expiration of this Agreement, you shall have no further rights to use the Service pursuant to this Agreement. Upon any termination of this Agreement, the licenses granted to you under this Agreement shall automatically and immediately terminate and you shall immediately delete or destroy all complete or partial copies of the Service and any documentation or materials provided to you in connection with the Service. Termination will not affect a party’s respective accrued rights and obligations, and the following Sections shall survive termination: Sections 4, 6, 7, 8 and 9.
(a) Confidential Information. You shall treat as confidential and shall not disclose or transmit to any third party (i) any documentation or other materials that are marked as “Confidential” by the LMRC, (ii) any other information or materials of the LMRC disclosed to you or to which you otherwise have access under this Agreement which reasonably can be considered to be confidential under the circumstances, and (iii) any of the terms of this Agreement, including, without limitation, the consideration provisions (collectively, "Confidential Information"). You agree to use the same degree of care with respect to the Confidential Information that you use to
protect your own confidential information of a like nature from unauthorized disclosure, but in no event less than a reasonable degree of care. Confidential Information as described in clauses (i), (ii) or (iii) of the preceding sentence shall not include (A) any information that is in the public domain (other than as a result of a breach of this Agreement) or lawfully available to you hereunder from sources other than the LMRC (provided that such source is not subject to a confidentiality agreement with regard to such information), or (B) any information that you can demonstrate was independently developed by you without use of or reference to information provided by the LMRC. Any non-public information about the Services shall be deemed Confidential Information of the LMRC.
7. Indemnification. You shall indemnify and hold harmless the LMRC and its licensors and their respective affiliates, assignees, partners, managers, officers, directors, employees and agents against any and all judgments, damages, costs, or losses of any kind (including reasonable attorneys’ and experts’ fees) as a result of, and defend any action brought against the same, with respect to any third party claim, action, or proceeding that arises out of or relates to (i) your selection and/or use of the Services, (ii) any product or any services provided by you, (iii) a breach by you or your obligations hereunder, or (iv) any claim of infringement, misappropriation or violation of any patent, trademark, copyright, trade secret, license, or other proprietary right that arises from your use of the Service other than as permitted hereunder.
8. Limitation of Liability. EXCEPT FOR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE LMRC, UNDER NO CIRCUMSTANCES AND UNDER NO THEORY OF LAW, TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL THE LMRC OR ANY OF ITS LICENSORS OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR TRADING LOSSES OR LOST PROFITS, OR FOR ANY CLAIM OR DEMAND BY ANY THIRD PARTY, EVEN IF THE LMRC KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES, CLAIM OR DEMAND. IN NO EVENT SHALL THE CUMULATIVE AGGREGATE LIABILITY OF THE LMRC TO YOU, YOUR AFFILIATES OR ANY THIRD PARTIES UNDER THIS AGREEMENT (WHETHER BASED UPON CONTRACT, TORT, WARRANTY OR OTHERWISE) AT ANY TIME EXCEED THE AMOUNT OF FEES COLLECTED FROM YOU PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING REPRESENTS AN EXPRESS ALLOCATION OF RISK BETWEEN THE PARTIES.
(a) Notices. Any notices or other communications required or permitted to be given or delivered by the LMRC under this Agreement shall be undertaken by the LMRC by any means the LMRC determines in its discretion to be reasonable including, but not limited to, sending you an email notification (in which case the notice or other communication shall be deemed to be given when it is sent) or posting the notices or other communications on the LMRC’s website located at www.lifestylematrix.com (in which case the notice or other communication shall be deemed to be given when posted in LMRC’ website). Any notices or other communications required or permitted to be given or delivered by you under this Agreement shall be in writing and shall be
sufficiently given if delivered personally or if delivered by overnight commercial courier or by first class mail, postage prepaid, to the LMRC at the following address: 1991 Duncan Place, Woodstock, IL. 60098. Any notice or other communication by you shall be deemed to be given when it is personally delivered or as of the date it is delivered by the commercial courier or five (5) days after being deposited in first class mail, as the case may be, as herein specified. Any change of address shall be served by notice pursuant to this Section 9(a).
(b) Assignment. The Member may not assign or transfer this Agreement or any rights hereunder, by operation of law or otherwise, without the prior written consent of the LMRC, which the LMRC may withhold in its sole discretion. Any purported assignment in violation of this Section 9(b) shall be null and void. Subject to the foregoing limitation on assignment, this Agreement shall be binding upon the parties and their respective legal successors and assigns.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to the conflict of law provisions thereof. In any action or proceeding among them, the parties hereto consent to the exclusive jurisdiction of the state courts located in Wisconsin, or a federal court located in Wisconsin.
(d) Attorneys Fees. If either party to this Agreement brings a legal action to enforce its rights hereunder, the prevailing party shall be entitled to recover its costs, expenses, and reasonable attorney’s fees incurred as a result of such action or the appeal of any such action.
(e) Waiver. The waiver by the LMRC of a breach of any provision of this Agreement by you shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision hereof.
(f) Remedies. All remedies hereunder are cumulative and you acknowledge that, in the event of a breach of this Agreement by you, the LMRC will not have an adequate remedy in monetary damages. The LMRC shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. The right to obtain injunctive relief shall not limit the right to seek further remedies.
(g) Entire Agreement; Amendment. This Agreement embodies the entire agreement of the parties relating to the subject matter hereof and shall supersede entirely all prior agreements, oral or written, between the parties. No amendment or modification of this Agreement shall be valid or binding except upon the unanimous consent of the parties hereto and implemented in the manner contemplated in this Agreement.
(h) Severability. Should any one or more of the provisions hereof be determined to be illegal or unenforceable, all other provisions hereof shall be given effect separately therefrom and shall not be affected thereby.