MARKETPLACE SERVICES AGREEMENT

Last Updated: November 16, 2017

This Marketplace Services Agreement (“Agreement”) is made as of __________, 2017 (the “Effective Date”) by and between Health Sqyre, Inc., with its principal place of business located at 191 University Boulevard, Suite 147, Denver, CO 80206 (“Company” or “we” or “us”), __________________________, with its principal place of business located at ________________________ (“Supplier” or “you” or “your”).   Supplier desires to access and use in its own business operations certain proprietary software of Company that is provided by Company under a hosted “software as a service” model in order to facilitate the buying of Products by End Users through the Marketplace.  By signing below, the parties agree to the terms and conditions of this Agreement.  Any different or additional terms of a related purchase order, confirmation or similar form signed by the parties after the date hereof shall have no force or effect on this Agreement or its subject matter, and pre-printed or standard terms of Supplier’s purchase order are specifically excluded.  This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.  Once signed, any reproduction of this Agreement, or any attachment or exhibit hereto, made by reliable means (for example, photocopy or facsimile) is considered an original and all Company Services ordered under this Agreement will be subject to it.

Standard Terms and Conditions

  1.                   DEFINITIONS.

1.1                Claim Information” means all health insurance information and documentation requested by Company to permit Company to fulfill and/or to verify (as applicable) any Product purchases made by End Users.

1.2                Company Service” means the on-line service delivered by Company to Supplier using the Software hosted by Company and as made available by Company through the access methods described in this Agreement that allows Supplier to view Product orders made through the Marketplace by End Users.

1.3                Company Site” means the web site located at a unique URL to be provided by Company to Supplier where Users may access and use the Company Service.

1.4                Confidential Information” means the terms and conditions of this Agreement and all information related to a party’s business, financial affairs or operations, including but not limited to information related to business plans, technology, source code, product or service development plans, pricing, techniques and methods, which is either marked or identified as confidential or which the receiving party knew or reasonably should have known, under the circumstances, was confidential.

1.5                Confirmed Order” means an order by an End User in the Marketplace for a Product where such order has been approved by Company.   

1.6                Specifications” means the specifications and functional requirements published by Company for the Company Service and provided to Supplier in either electronic, online help files or hard copy format.  Marketing materials shall not be considered Specifications hereunder.

1.7                End User” means an individual who uses the Marketplace to purchase Products.

1.8                Intellectual Property Rights” means any and all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and other proprietary rights, whether registered or unregistered.

1.9                Marketplace” means the services provided by Company that lets End Users view, compare, purchase and rate products or other items, some of which may be Products.

1.10             Products” means the products, services, devices, components or other materials sold by or on behalf of Supplier through the Marketplace.  The list of Products is set forth on Exhibit B and may be modified by the parties via email to a designated contact from time to time.

1.11             Software” means Company’s proprietary computer software programs described in Exhibit A, including any updates and new releases thereto, made available to Supplier (and its Users) under this Agreement in connection with the Company Service.

1.12             Supplier Data” means the product images, marketing materials, marketing copy, data and content directly provided by Supplier to Company in the course of Supplier’s access to, and use of, the Company Service in accordance with this Agreement.

1.13             Supplier Pricing” means the pricing provided to Company by Supplier for the Products.  The current Supplier Pricing is set forth on Order Form. Supplier shall ensure that all Supplier Pricing includes prices for in-network health insurance, out-of-network health insurance, and a non-insurance cash price. Cash pricing will be compliant with Manufacturers MAP pricing policy.       

  1.                   COMPANY SERVICE.

License.  Subject to the terms and conditions of this Agreement, Company grants to Supplier, during the Term (as defined below), a non-exclusive, non-transferable right to remotely access and use the Company Service in accordance with this Agreement in connection with fulfilling Product Orders made through the Marketplace, and pursuant to the Order Form attached hereto (the “Order Form”). Supplier’s employees, independent contractors and other authorized individuals may use the Company Service on Supplier’s behalf, so long as Supplier agrees to be responsible for their acts and omissions. Support and Service Levels.  As part of the Company Service and subject to the terms and conditions of this Agreement, including, without limitation, Supplier’s payment of all applicable Fees, Company will use commercially reasonable efforts to (a) ensure that the Software is accessible through the Company Site over normal network connections, excepting downtime due to necessary maintenance and troubleshooting; (b) maintain the security of the Company Service; and (c) provide telephone, e-mail and web-based support services during Company’s regular business hours for Software related questions.  Supplier is solely responsible for providing, at its own expense, all network access to the Company Service, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Company Service.

2.1                Access and Users.   Supplier will be assigned a unique user identification name and password (“User ID”) for access to and use of the Company Service.  Supplier shall be responsible for ensuring the security and confidentiality of its User IDs.  User IDs may not be shared within Supplier’s organization. Supplier will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Company Service, and notify Company promptly of any such unauthorized use.

2.2                Proprietary Rights; Restrictions on Use.  The Marketplace, Company Service, Software and Specifications, and all worldwide Intellectual Property Rights therein, are the exclusive property of Company and its licensors.  All rights in and to the Company Service and Software not expressly granted to Supplier in this Agreement are reserved by Company and its licensors.  Supplier is responsible for all activities that occur under Supplier’s user account.   Except as expressly permitted in this Agreement or as otherwise authorized by Company in writing, Supplier will not, and will not permit any User to (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Company Service or Marketplace to any third party, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software ; (d) interfere in any manner with the operation of the Company Service or Marketplace; (e) remove, alter, or obscure any proprietary notices (including copyright notices) of Company or its licensors contained within the Specifications or displayed in connection with the Company Service or Marketplace (including Software); or (f) otherwise use the Marketplace, Company Service or the Software except as expressly allowed under this Agreement.    

2.3                Data.

(a)                Supplier Data. Supplier hereby grants to Company a non-exclusive, royalty-free, fully paid up, transferable right and license to use the Supplier Data during the term of this Agreement for the limited purposes of performing Company’s obligations hereunder for the benefit of Supplier.  Company shall not use the Supplier Data for the benefit of any other supplier of Company, or for any other purpose, without Supplier’s prior approval.  Subject to the rights granted in this Agreement, Supplier retains all right, title and interest in and to the Supplier Data, and Company acknowledges that it neither owns nor acquires any additional rights in and to the Supplier Data not expressly granted by this Agreement. In the event any Supplier Data is anonymized by Company, Company and its agents, subcontractors and licensors may use and share such anonymized Supplier Data without restriction in accordance with local laws.

(b)                Usage Data. Company collects information and data about how the Marketplace is used by End Users and how the Company Services are used by Supplier (such as, but not limited to, demographic information, search terms used or how Supplier performs searches and information about the platform and workflow) (the “Usage Data”) and reserves the right to disclose to use, modify, and share such Usage Data in its discretion. Company owns all Usage Data.

(c)                 End User Data.  As a result of sales and other activity through the Marketplace, information may be created or shared about identified or identifiable End Users and related third parties (such as third parties to whom End Users designate as recipients of shipments), including without limitation names, Protected Health Information (“PHI”) (as defined under the Health Insurance Portability and Accountability Act (“HIPAA”), health information, health insurance information, contact information, purchase information, and the fact that individuals have a relationship with Company (“End User Data”).  As between the parties, Company shall own all End User Data. You may only use the End User Data to perform your obligations in servicing clients  and to exercise your rights under this Agreement and for purposes of legal compliance.

  1.                   PRODUCTS.

3.1                Product Listings.  Supplier agrees to provide accurate, complete, and up-to-date information about all Products and Supplier Pricing.  Supplier shall promptly update any out of date or incomplete information about a Product. Supplier will only list Products that it owns or controls, and may not sell or list for sale any Products not owned or controlled by Supplier.  Supplier shall provide all Product related information in the format requested by Company.  Company may remove or suspend any Product listings in its discretion.

3.2                Confirmed Orders.  You (or your designee) agree to fulfill any Confirmed Orders at your own expense.  You (or your designee) agree to pack, fulfill, ship and deliver each Confirmed Order on the Marketplace at your own expense and in compliance with these terms.  You will provide any ordering, shipping or tracking information to Company, and Company may use all such information to interact with End Users. Company and Supplier will jointly prioritize  the End User’s needs. In order to maintain a great End User experience, every effort should be made to provide fulfillment information and maintain operational settings that provide specific delivery days as opposed to delivery date ranges. This objective can be achieved by providing specific shipping methods (e.g. UPS Ground) in the Company Service as opposed to general service levels. In order to ensure a positive End User experience, Company typically expects orders to be delivered to End Users within 5 business days or less from a Confirmed Order, although the parties acknowledge that shipping and delivery times for Confirmed Orders covered by health insurance may vary greatly. The parties will mutually cooperate with each other to confirm and ship out any Products covered by health insurance as soon as practicable. All transactions are in U.S. Dollars.

3.3                Branded Packaging.  Supplier shall ensure that within the packaging of any Products there is included a one -page document with the Company’s name and logo, indicating that the order is from the Company Marketplace, and instruction to contact Company for support  or any questions regarding their order. The parties will mutually agree upon the form of the document.

3.4                Marketplace Pricing.  If Company determines in its sole discretion that your actions may result in a dispute with an End User, Company may delay any payments relating to such dispute until the dispute is resolved. Company reserves the right to impose activity limits on some or all End Users, or on Supplier on the Marketplace (including, without limitation, volume or dollar restrictions). In such case(s), Company will not be liable to you for any transaction by Company that does not proceed or is withdrawn due to any of these limitations.  Company will bear the risk of credit card fraud (i.e., fraudulent purchases arising from the theft and unauthorized use of a third party’s credit card information) occurring in connection with sales of your Products; provided, that Company will not bear the risk of credit card fraud in connection with any of your Products that are not fulfilled strictly in accordance with the order information and shipping information that Company provides you.

3.5                Returns and Refunds.

(a)                Company’s General Policy. Supplier shall comply with any return, exchange, refund and credit policies set forth in this Agreement, or provided by Company to Supplier from time to time.   In general, Confirmed Orders may be cancelled by Supplier or End User any time prior to shipment.  End Users have the right to request returns or exchanges of items for up to 30 days after the original ship date subject to a restocking fee (currently fifteen percent (15%) of the total order amount, excluding applicable taxes and shipping) (the “Returns Processing Fee”).  The Returns Processing Fee shall be retained by Company. Company may change the Returns Processing Fee in its discretion. Returned items must meet the following requirements: (a) the item is not on the list of “Non-Returnable Products and Product Categories”; and (b) The item must still be new, unopened in the original packaging and with the original tags still attached.  Damaged, defective and incorrect items delivered to End Users (“Damaged Products”)) may be returned at no added charge (and there shall be no Returns Processing Fee assessed), regardless of whether the item was listed as a Non-Returnable Products and Product Categories. Relating to this timing, and to ensure an appropriate End User experience, our Suppliers must accept returns at their facilities for up to 40 days after the original ship date. Returns arriving after 40 days from the original ship date can be either accepted and approved or returned to the sender at the Supplier’s discretion. No refunds will be given to End Users, only Company store credit will be provided. No shipping charges shall be refunded to End Users, except for Damaged Products.  All returns and exchanges are determined in Company’s discretion.

(b)                Products Purchased Using Health Insurance. Notwithstanding anything to the contrary herein, different health insurance companies may have different return, exchange, or refund policies, and Supplier hereby warrants that, for any Confirmed Order covered by health insurance, it will comply with all applicable policies of the applicable health insurance agency.  

(c)                 Returns Processing.  For any return or exchange, you will receive either a return notification requesting that the Product(s) be replaced upon return or receive an order that is identified as a replacement order for the previously shipped Product(s). Upon your receipt and processing of returned Product(s), you will, as requested by Company, either replace the Product(s) at no charge, or provide a refund for the total purchase price (less shipping) to Company. If Company determines that more than one week has passed since you received returned Product(s) and you have not yet processed the returns, Company will initiate the returns processing for the Product(s) on your behalf and you shall be responsible for all expenses associated therewith. In order to ensure a positive End User experience, Company expects that all Suppliers promptly review and process returns. Company will review and monitor return processing performance and work with the Supplier to address any issues.

(d)                Drop shipping.  Drop shipping, or allowing a third party to fulfill orders to customers on your behalf, is generally acceptable. If you intend to fulfill orders using a drop shipper, you must always: (i) be the seller of record of your Products; (ii) identify yourself as the seller of your Products on all packing slips and other information included or provided in connection with them; (iii) be responsible for accepting and processing customer returns of your Products; and (iv) comply with all other terms of this Agreement.

3.6                Marketing.  Company may engage in merchandising, promotion and advertising of the Products offered on the Marketplace, as determined by Company in its sole discretion. The activities may be performed on the Marketplace or through other online or offline features or programs (including, for example, mailings or inserts), or through any third party relationships with Company.

  1.                   HEALTH INSURANCE-RELATED PROVISIONS.

4.1                Claim Fulfillment.   If Supplier requests that Company fulfill claims,  Company shall be responsible, on behalf of Supplier, for filing all health insurance claims for any Products purchased through the Marketplace by End Users using health insurance.  Supplier will provide Company with the required information, access, and permission needed to register and/or work with various health insurance providers on the Suppliers behalf in order to assist the Company in providing its services including but not limited to Authorizations, Eligibility, Claims, Claims Status, Electronic Remittance Advice, and Referrals.  For all claims, Supplier shall promptly provide Company with any Claim Information, including without limitation the claim ID number and Supplier’s National Provider Identifier (“NPI”), so that Company may verify coverage, deductibles, co-pays, and any amounts payable hereunder.  Each party shall diligently pursue any health insurance claims.  Where Company is filing claims on behalf of the Supplier, Company shall provide Supplier with copies of any documentation reasonably required by Supplier, including, without limitation, provider notes, prescriptions, test results, and pre-authorizations.  Company shall use reasonable efforts to enter into an assignment of benefits and an authorization to release medical information (the “AOB”) with each End User using health insurance to purchase Products.  Supplier will provide Company with any reasonably requested information or assistance in connection with the AOB and related claims processing and fulfillment.

4.2                HIPAA.  Supplier represents and warrants that it shall comply with all applicable laws related to the pricing, sale, advertising, payment, and fulfillment of any Products, including the Health Insurance Portability and Accountability Act, as revised (“HIPAA”).  Supplier shall enter into Company’s standard-form Business Associate Agreement.

4.3                Compliance with Laws.  The parties acknowledge that the amounts and prices paid hereunder are consistent with fair market value in arms-length transactions and are not determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the parties for which payment may be made in whole or in part under Medicare, Medicaid, or other Federal health care programs. The parties acknowledge that the prices paid hereunder may reflect a discounted pricing arrangement. The parties acknowledges that, by law, they may be required to disclose, in any cost reports or claims for reimbursement submitted to Medicare, Medicaid, or certain other health care programs, the cost (including, but not limited to, discounts or any other price reductions) of any items purchased, leased or otherwise obtained and, on request, provide to the U.S. Department of Health & Human Services and any state agencies, any invoices, coupons, statements, and other documentation reflecting such cost. Supplier shall fully and accurately report discounted pricing, if applicable, on the invoice, coupon or other statement submitted to Company. Company may request additional information from Supplier to meet its reporting or disclosure obligations and Supplier shall provide such requested information to Company within a reasonable time of such request. The parties acknowledge that the warranty set forth herein is intended to cover only the cost to replace, repair or otherwise service the Products.  Company agrees that it will fully and accurately report any price reduction or free items obtained as part of the warranty, on the applicable cost reporting mechanism or claim for payment from a government healthcare program. Seller shall note the existence of the warranty on its invoice or statement to Company and fully and accurately report the actual value of such warranty, when known.

  1.                   FEES AND PAYMENT.

5.1                Marketplace Payments. Supplier will pay to Company the fees set forth in Exhibit A and the Order Form as consideration for Company’s facilitation of any Product purchases made through the Marketplace.   For clarity, Exhibit A and the Order Form are incorporated into this Agreement.

5.2                Taxes and Fees.  Supplier shall pay, all sales, use and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement, except for taxes based upon Company’s net income.

5.3                Verification of amounts owed. Both parties will provide acceptable proof that amounts owed have been properly figured prior to the true up.  And that if there is an inquiry about those facts, each party will satisfy the inquiry until it is satisfied.  All payments are in in US dollars.

5.4                Late Payments. Outstanding balances shall accrue interest at a rate equal to the lesser of one and one half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Company’s reasonable costs of collection.  All Fees due hereunder are exclusive of, and taxes and fees.  

  1.                   WARRANTIES; DISCLAIMER.

6.1                Company Warranties.  During the Term, Company warrants that the Company Service, when used as permitted by Company and in accordance with the instructions in the Specifications, will operate as described in the Specifications in all material respects.  Company does not warrant Supplier’s use of the Company Service will be error-free or uninterrupted.  Company will, at its own expense and as its sole obligation and Supplier’s exclusive remedy for any breach of this warranty, correct any reproducible error in the Company Service reported to Company by Supplier in writing during the Term.

6.2                Supplier Warranties. Supplier represents and warrants that: (a) it has the right to provide the Product information to Company and to authorize Company to list the Products as set forth herein; (b) it has the right to offer the Products at the Supplier Pricing; (c) neither it, nor any of its personnel hereunder, have been convicted of an offense related to healthcare or listed by a federal agency as debarred, excluded, or otherwise ineligible for federal program participation, and it shall promptly notify Company of any status change upon receipt of such information;  (d) the Products will be in conformance with all applicable laws and regulations, and will not infringe or violate the rights of any third party; and (e)Supplier has the rights to market, advertise, sell, and provide the Products to the End User.

6.3                Disclaimers.  THE EXPRESS WARRANTIES IN THIS SECTION ARE IN LIEU OF, AND COMPANY HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SOFTWARE AND THE COMPANY SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.  EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION, ACCESS TO THE COMPANY SERVICE AND MARKETPLACE ARE PROVIDED “AS IS” WITH ALL FAULTS.

  1.                   LIMITATION OF LIABILITY.  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE MARKETPLACE, COMPANY SERVICE OR THE SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.  THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO ANY PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS HEREUNDER.
  2.                   CONFIDENTIALITY.

8.1                Protection.  The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

8.2                Exceptions.  The Receiving Party’s obligations under above with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information:  (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is:  (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

8.3                Return of Information.  Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or upon the expiration or termination of this Agreement; provided, however, the Receiving Party may retain one (1) archival copy for record retention purposes and compliance with applicable law.  Upon the request of the Disclosing Party, the Receiving Party will certify in a writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this section.

8.4                Injunctive Relief.  Each party acknowledges that a breach or threatened breach of this Section 8 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain.  Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section 8 by the other party or any of its employees or agents.

  1.                   INDEMNIFICATION

9.1                Company Indemnification.  Company will defend at its own expense any action against Supplier brought by a third party to the extent that the action is based upon a claim that the Company Service (including the Software) infringes any U.S. copyrights or misappropriates any trade secrets of a third party, and Company will pay those costs and damages finally awarded against Supplier in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.  The foregoing obligations are conditioned on Supplier (a) notifying Company promptly in writing of such action, (b) giving Company sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Company’s request and expense, assisting in such defense.  If the Company Service (including the Software) becomes, or in Company’s opinion is likely to become, the subject of an infringement claim, Company may, at its option and expense, either (i) procure for Supplier the right to continue using the Company Service, (ii) replace or modify the Company Service so that it becomes non-infringing, or (iii) terminate this Agreement upon written notice to Supplier and refund Supplier the Fees paid for such Company Service during the twelve (12) month period preceding the effective date of termination.  Notwithstanding the foregoing, Company will have no obligation under this section or otherwise with respect to any infringement claim based upon (A) any use of the Company Service (including the Software) not in accordance with this Agreement or the Specifications or for purposes not intended by Company, (B) any use of the Company Service (including the Software) in combination with other products, equipment or software not intended by Company to be used with the Company Service (including the Software), (C) any Supplier Data, or (D) any modification of the Company Service (including the Software) by any person other than Company or its authorized agents or subcontractors.  THIS SECTION STATES COMPANY’S ENTIRE LIABILITY AND SUPPLIER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

  1.                SUPPLIER INDEMNITY.  Supplier will defend, indemnify and hold harmless Company and its affiliated companies and each of their respective officers, directors, employees and agents from and against any claims, liabilities, losses, damages, judgments, awards, fines, penalties, costs and expenses (including reasonable attorneys’ fees and defense costs) which may be sustained or suffered by any of them arising out of or based upon a claim by a third party against a Company indemnitee related to (a) Supplier’s (and its Users’) access to and use of the Company Service, except to the extent arising from Company’s breach of this Agreement or Company’s negligence or willful misconduct; (b) any Product ordered by an End User; or (c) any breach of Supplier’s representations and warranties.
  2.                TERM; TERMINATION

11.1             Term.  The initial term of this Agreement will begin on the Effective Date and will continue for a period of one (1) year (“Initial Term”), unless terminated earlier as provided herein.  Thereafter this Agreement will automatically renew for successive one (1) year terms (each, a “Renewal Term”) unless a party notifies the other party in writing of its intent not to renew at least thirty (30) days prior to the end of the Initial Term or the then-current Renewal Term.  The Initial Term and all Renewal Terms are collectively referred to as the “Term.”

11.2             Termination.  Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof.  Either party may terminate this Agreement for any or no reason upon thirty (30) days written notice to the other party.

11.3             Effects of Termination.  Upon termination or expiration of this Agreement for any reason, any amounts owed to Company under this Agreement before such termination or expiration will be immediately due and payable, all rights granted by Company to Supplier in this Agreement will immediately cease to exist and Supplier must discontinue all use of the Marketplace, Company Service and Software and return to Company or destroy all copies of Specifications and other Company Confidential Information in Supplier’s possession or control.  Sections 1, 2.4, 2.5(b)-(c), 4.2, 5.3, 6.2, 6.3, 7-9, 11.3, 12 together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.

  1.                GENERAL

12.1             Non-Exclusive.  This Agreement shall not be construed to limit or prohibit Company in any manner or fashion in providing products and/or services of any type of nature including those identical to the Supplier Products on the Marketplace or to any End User.

12.2             Assignment.  Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including the license rights granted to Supplier to access the Company Service) to any third party without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed.  Notwithstanding the foregoing, Company may assign its rights and obligations under this Agreement to a parent, affiliate, or subsidiary, or to a successor, whether by way of merger, sale of all or substantially all of its assets or otherwise.  Any attempted assignment of this Agreement not in accordance with this subsection shall be null and void.

12.3             Relationship of Parties.  The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.

12.4             Force Majeure.  Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party.

12.5             Notices.  All notices, consents, and approvals under this Agreement must be delivered in writing by courier or internationally recognized overnight delivery service, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the first page of this Agreement, and will be effective upon receipt or when delivery is refused.  Either party may change its address by giving notice of the new address to the other party.

12.6             Governing Law and Venue.  This Agreement will be governed by and interpreted in accordance with the laws of Colorado, without reference to its choice of laws rules.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.  Any action or proceeding arising from or relating to this Agreement shall be brought in a federal or state court in Denver, Colorado, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.

12.7             Remedies.  Except as expressly provided otherwise, the parties’ rights and remedies under this Agreement are cumulative.  If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

12.8             Waivers.  All waivers must be in writing.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

12.9             Severability.  If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

12.10         Publicity.  Supplier hereby grants to Company the limited right to use Supplier’s name and marks in marketing and publicity materials listing Supplier as a Supplier of Company.

12.11         Construction.  The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement.  As used in this Agreement, the word “including” means “including but not limited to.”

12.12         Entire Agreement.  This Agreement (including all exhibits and attachments) constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral regarding such subject matter.  This Agreement may be amended only by a written document signed by both parties.

In witness whereof, the parties have executed this Marketplace Services Agreement as of the Effective Date.

Company: Health Sqyre, Inc.

By: _____________________________________

Name: __________________________________

Title: ____________________________________

Address: _________________________________

_________________________________________

Supplier:      

By: ___­­­­______________________­­___________

Name: _________________________________

Title: ___________________________________

Address: ________________________________

________________________________________

 

Exhibit A

Description of Service and Fees

  1.                   Software.  The Software to which access will be provided under this Agreement will be the then-current release of Company’s proprietary  software to be accessed at the following Company Site: http://healthsqyre.com.  
  2.                   Marketplace Fees.

(a)                Definitions.

(i)                  “Cash Services Fee” means an amount equal to (a) ten percent (10%) of Revenue excluding applicable taxes; plus (b) any charges, fees, deductions, or other amounts charged by the applicable merchant services company.  For clarity, Cash Services Fee is consideration for the work done by Company to attract End Users to the Marketplace, service and support End Users, and process transactions on behalf of Supplier.

(ii)                “Insurance Services Fee” means an amount equal to (a) fifteen percent (15%) of  Revenue excluding applicable taxes; plus (b) any charges, fees, deductions, or other amounts charged by the applicable merchant services company. For clarity, Insurance Services Fee is consideration for the work done by Company to attract End Users to the Marketplace, service and support End Users, process transactions on behalf of Supplier, collect patient information through online patient forms and perform health insurance eligibility verification for each patient, and process and manage all patient health insurance claims and work directly with health insurance companies to process and manage the claims.

(iii)              “Revenue” means all amounts (including shipping) actually received by Company from End Users who purchased Supplier’s Products on the Marketplace.

(b)                Cash Payments. If an End User does not use health insurance to purchase a Product through the Marketplace, then this paragraph applies and the Cash Services Fee shall be assessed on any Products purchased or provided hereunder If an End User does not have, or does not wish to use, health insurance to Purchase a Product through the Marketplace, then the cash price Supplier Pricing set forth on the Order Form shall apply.  Once payment is received the order shall be a Confirmed Order and Supplier may only cancel it as set forth in the Agreement.   For any Product purchased by an End User without using health insurance, Company shall collect all amounts due from the End User. Supplier is responsible for informing Company of any applicable taxes or fees that must be charged to the End User, and all required taxes shall be set forth on Exhibit B.  All taxes and fees related to the Products or required to be collected upon the sale of Products are the responsibility of Supplier, except for taxes based on Company’ income.   

(c)                 Insurance Payments.  If an End User uses health insurance to purchase a Product through the Marketplace, then this paragraph applies and the Insurance Services Fee shall be assessed on any Products purchased or provided.  If any End User wishes to use health insurance to purchase a Product through the Marketplace, Company shall  verify such End User’s health insurance information prior to confirming the order.  Upon confirmation that the End User’s health insurance will cover the Product (either at the in-network price or out-of-network price), the order shall be a Confirmed Order and Supplier may only cancel it as set forth in the Agreement.  Except for those Products where Supplier chooses to do the reimbursement, all  health insurance claims shall be processed by Company on Supplier’s behalf. The parties acknowledge that a portion of the payment may be paid by the End User to Company up front and a portion of the payment may be paid by a health insurance provider to Supplier. Except as otherwise agreed by the parties in writing, Company shall collect all initial amounts due from the End User at the time of purchase, and Supplier shall receive all amounts from the applicable health insurance provider. Supplier is responsible for informing Company of any applicable taxes or fees that must be charged to the End User, and all required taxes shall be set forth on Exhibit B.  All taxes and fees related to the Products or required to be collected upon the sale of Products are the responsibility of Supplier, except for taxes based on Company’ income.

Once Company confirms that a health insurance claim has been approved, Company shall (a) if Company owes Supplier any Revenue under this Exhibit, Company will deduct the Insurance Services Fee from any Revenue owed to Supplier; or (b) if Company does not owe Supplier any Revenue under this Exhibit,  Company will charge Supplier’s credit card on file for the Insurance Services Fee.  Supplier will reasonably cooperate with Company to resolve any insurance questions, issues, or disputes.

(d)                True-Up.  On a monthly basis (at such date as agreed by the parties in writing), Company shall send Supplier a report detailing Revenue received in the previous month, as well as the Insurance Services Fees and  Cash Services Fees for the previous month.  If, as detailed in such report, (a) Company owes Supplier any outstanding Revenue under this Exhibit (after deducting the Insurance Services Fee and Cash Services Fee),  Company will provide such Revenue (less any Insurance Services Fee and Cash Services Fee) to Supplier; or (b) if the Insurance Services Fee and Cash Services Fee exceed the amount of Revenue owed to Supplier, Company will charge Supplier’s credit card on file for difference between the Insurance Services Fee and the Cash Services Fee and the Revenue.

(e)                 Returns. In the event End User does not pay Company some or all of any amounts due for any reason, no payment obligations shall arise or be deemed to be earned with respect to the unpaid amount (i.e., if a unit price is $100, and an End User only pays $30, then the amount upon which a commission will be paid is $30).  Supplier shall promptly refund Company any amounts paid to Supplier for Products subsequently returned, although except for Damaged Products, Supplier may retain any shipping charges. Company reserves the right to chargeback (debit) the full amount of any amounts payable on Products returned by a customer to Company for credit.  

  1.                   Subscription Fees. Company does not currently charge any onboarding, subscription, or monthly maintenance fees, but, after the first twelve (12) months of the initial term,  may at any time start charging fees (or increase fees, as applicable) upon thirty (30) days written notice to Supplier.  

 

Exhibit B

Product

 

 

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