SERVICES AGREEMENT

 

By checking this box and engaging Take Stock Global, a Nevada corporation d/b/a salesMD (“Provider”), you acknowledge and agree that you have read, understand, and agree to be bound by Provider’s terms and conditions related to the provision of it services.

1. Services and Compensation.
   • Services. Provider agrees to perform the services described in the proposal, statement of work, or similar document as set forth on Exhibit A which is incorporated into and made a part of this Agreement (such documents shall collectively be referred to as the “Statement of Work” (“SOW”) and such services referred to as the “Services”). The parties may from time to time agree upon or issue subsequent SOWs in a form similar to that of Exhibit A, which shall (i) be sequentially numbered; (ii) be subject to all of the terms and conditions contained in this Agreement; (iii) become binding upon execution by each of the parties hereto; and (iv) upon execution, be incorporated into this Agreement by reference. Provider shall render to Client the Services set forth in the applicable SOW in a timely and professional manner consistent with industry standards, in accordance with this Agreement and any additional terms set forth in the applicable SOW. In the event of a conflict between the terms of this Agreement and any SOW, this Agreement shall control, unless the applicable SOW specifically identifies the provision of this Agreement it is meant to supersede.
   • Compensation. In consideration of the Services to be rendered pursuant to each SOW, Provider shall be compensated as set forth in the applicable SOW. Unless otherwise agreed by the parties, payment for Services shall be on-going during the Term (set forth below) hereof, and Client agrees that he/she/it shall provide Provider with a valid bank account, credit card, or debit card that Client authorizes Provider to bill monthly in exchange for the Services (“Payment Method”). Client acknowledges that its authorization shall remain in force until revoked by Client in writing or until this Agreement terminates or naturally expires pursuant to the terms hereof. Client may change its Payment Method upon written notice to Provider.
   • Expenses. Except as expressly specified in Exhibit A hereto, unless otherwise agreed to by the Client, Provider shall not be authorized to incur any expenses on behalf of the Client. As a condition to receipt of reimbursement, Provider shall be required to submit to the Provider reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Agreement.
2. Relationship of Parties.
   • Independent Contractor. Provider is an independent contractor and is not an agent or employee of Client. Provider has no authority to bind Client by contract or otherwise without Client’s prior written authorization. Provider will perform the Services under the general direction of Client, but Provider will determine, in Provider’s sole discretion, the manner and means by which the Services are accomplished, subject to the requirement that Provider shall at all times comply with applicable law. Client has no right or authority to control the manner or means by which the Services are accomplished. Provider agrees to furnish all tools and materials necessary to accomplish the Services.
   • Taxes and Benefits. Provider agrees to pay all taxes on the compensation provided to Provider or its employees and other individuals and entities performing Services on behalf of Provider, if any (collectively “Provider’s Agents”). Provider agrees that Provider and its agents will not be eligible to participate in, or receive benefits under, any employee benefit plans, arrangements or policies of Client including, but not limited to, any plan, arrangement or policy providing bonus, vacation, stock options, stock purchase, sick leave, disability, health or life insurance, 401(k), retirement, profit sharing or similar benefits for Client’s employees.
3. Property.
   • Return of Client Property. Upon the termination or expiration of this Agreement or any applicable SOW, or upon written request by Client, Provider will return to Client any tangible or intangible Client property that comes into Provider’s possession during the term of this Agreement. Such property may include, but shall not be limited to, any documents containing Confidential Information, as that term is defined in Exhibit B attached hereto.
   • Provider Property. As of the Effective Date, Provider has developed, and shall develop certain, designs, ideas, discoveries, inventions, products, services, procedures, methods, improvements, documents, information, know-how, trade secrets, software, implantation of software, and other materials which Provider may use in connection with the execution and provision of the Services hereunder (“Provider Property”). Provider Property shall at all times remain Provider’s intellectual property and shall be separate property to that licensed, transferred, or assigned to Client by Provider pursuant to Section 3.3. Upon the termination or expiration of this Agreement, or upon written request by Provider, Client will return to Provider any tangible or intangible Provider property that comes into Client’s possession during the term of this Agreement. Provider Property may include, but shall not be limited to, any documents containing Confidential Information, as that term is defined in Exhibit B attached hereto.
   • Work Product. Provider agrees that, other than Provider’s Property, all copyrightable material, notes, works, records, patient records/information, drawings, designs, reports, data, opinions, certificates, software, models, results, inventions, improvements, developments, strategies, discoveries and trade secrets conceived, made or discovered by Provider, solely or in collaboration with others, during the period of this Agreement which relate to the business of Client that Provider may be directed to undertake, investigate, analyze, test or experiment with, or which Provider may become associated with in work, investigation, testing, analysis or experimentation in in relation to the business of Client in performing the Services hereunder (collectively, “Work Product”), are the sole property and Confidential Information of Client. Provider further agrees to assign (or cause to be assigned) and does hereby assign fully to Client all Work Product and any applicable intellectual property rights relating thereto.
4. Confidentiality and Nondisclosure. The parties hereto have entered into the Mutual Nondisclosure Agreement attached hereto as Exhibit B and incorporated by this reference as though fully set forth herein. The parties shall be and remain fully responsible for the acts, errors, or omissions of their agents or employees with respect to this confidentiality obligation and shall pay any and all legal fees incurred by the other party in enforcing its rights under such confidentiality obligations.
5. Term and Termination.
   • Term. This Agreement will commence on the Effective Date and will continue until final completion of the Services in the last SOW or until otherwise terminated as provided in this Section 5.
   • Termination.
     • Either party may terminate this Agreement at any time, with or without cause, without further liability or obligation to the other party upon thirty (30) days prior written notice.
     • Should either party default in the performance of this Agreement or materially breach any of its obligations under this Agreement, the non-breaching party may terminate this Agreement immediately if the breaching party fails to cure the breach within five (5) business days after having received written notice by the non-breaching party of the breach or default, except in the event of a material breach of Section 4 or Exhibit B of this Agreement by either party, in which case the non-breaching party may terminate this Agreement immediately upon providing written notice to the other.
     • Upon termination and/or expiration of this Agreement, Client shall be obligated to pay the amounts owing to Provider for Services performed up to the effective date of termination.
   • Effect of Termination. Upon termination of this Agreement, Provider shall immediately cease performing the Services. Termination or expiration of this Agreement will not relieve either party of its obligations under Sections 2, 3, 4, 5, 7, or 8, nor will expiration or termination relieve either party from any liability arising from any breach of this Agreement.
6. Limitation of Liability.
   • CONSULTANT IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND. CONSULTANT’S LIABILITY TO CLIENT ON ACCOUNT OF ANY ACTS OR OMISSIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO EXCEED THE COMPENSATION PAID TO CMPANY BY CLIENT FOR THE SERVICES. THESE LIMITATIONS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT.
   • Client acknowledges and agrees that the compensation set forth in any applicable SOW pursuant to this Agreement reflects the overall allocation of risk between the parties and that the total amount paid under the SOW out of which a claim arises is Client’s exclusive remedy under this Agreement. The foregoing is an essential basis of the bargain between the parties and a modification of such provisions would affect substantially the amount charged by Provider hereunder. In consideration of the compensation hereunder, Client agrees to such allocation of risk and hereby waives any and all rights, through equitable relief or otherwise, to subsequently seek a modification of such provisions or allocation of risk.
   • Provider shall not be responsible for any impairments to the Services caused by acts or omissions of Client or any of its agents, or other cause reasonably within Client’s control.
   • Client understands and agrees that there is no guarantee of outcome based on the Services being performed under this Agreement and that Provider does not and cannot promise, guarantee, or assure Client success of any prospective patients’ business.
   • Client acknowledges and agrees that Provider shall have no obligation or liability to Client in relation to abusive, hostile, or disgruntled callers, whether such callers are patients of Client, prospective patients of Client, or Client’s employees, contractors, or agents. For the avoidance of doubt, Provider may immediately terminate any hostile or abusive call in its reasonable discretion with no liability to Client in doing so.
7. Representations, Warranties and Covenants. Each party makes the following representations, warranties and covenants, as applicable, each of which shall be true and correct on the Effective Date and at all relevant times thereafter during the Term:
   • General. (i) the signatory has requisite power and authority to sign this Agreement and bind its respective organization hereto; (ii) this Agreement constitutes a valid, legal and binding agreement of the party, enforceable against such party in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency and other laws affecting creditors’ rights generally; (iii) the execution, delivery, and performance of this Agreement does not and will not conflict with or violate any agreements between such party and any other party; (iv) neither party or its respective officers, employees or agents has solicited or received from the other party any sum, gift, gratuity, or other thing of value as an inducement to securing or maintaining the performances hereunder.
   • Intellectual Property. Provider owns or has the necessary rights to use and/or permit Client to use all Company Property or third-party intellectual property (“IP”) in the manner contemplated under this Agreement, and that the use of such IP does not infringe or violate any rights of any person, does not contain any libelous or defamatory matter, and is not  false, misleading or deceptive.
   • Licenses and Permits. The parties, at their respective sole cost and expense, shall obtain and maintain in good standing at all times during the Term, and upon request submit to the requesting party copies of all applicable licenses and permits required for each party to operate legally under the terms and conditions of this Agreement.
   • Standard of Care. In performing the Services, Provider shall act consistent with that degree of care and skill exercised by members of the same profession currently practicing under the same or similar circumstances and standards of care.
   • EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH HEREIN, PROVIDER PROVIDES THE SERVICES AND PRODUCTS “AS IS” AND DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE.
8. Indemnification.
   • By Provider. Provider shall defend at its expense, indemnify, and hold harmless, Client, and its parents, subsidiaries, affiliated entities, and each of their respective officers, directors, executives, employees, agents, insurers, managers, partners, principals, licensees, and representatives, from and against all claims, including, fines, penalties, interest, damages, expenses, awards, costs, demands, liability, attorney’s fees, court costs, costs of appeal, and expert witness fees that result from or in any way related to:  (i) Provider’s breach of this Agreement or willful misconduct; (ii) alleged infringement of patent, copyright, trademark, trade secret or other intellectual property rights; (v) any claim by any individual employed or engaged by Provider related to allegations concerning unpaid wages or any other amounts or benefits owed to or on behalf of any said individual; or (vi) the failure of Provider to comply with the laws, rules, regulations, ordinances, statutes, codes and orders of any governmental or quasi-governmental or regulatory or administrative authority.
   • By Client. Client shall defend at its expense, indemnify, and hold harmless, Provider, and its parents, subsidiaries, affiliated entities, and each of their respective officers, directors, executives, employees, agents, insurers, managers, partners, principals, licensees, and representatives, from and against all claims, including, fines, penalties, interest, damages, expenses, awards, costs, demands, liability, attorney’s fees, court costs, costs of appeal, and expert witness fees as a result of: (i) Client’s breach of this Agreement or willful misconduct (ii) death or injury arising out of Client’s negligent acts or omissions;  (iii) any materials provided by Client for use by Provider and/or its service providers under this Agreement, including, without limitation, any claim that any such Client materials are libelous or defamatory or violate or infringe the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, or any rights of privacy or publicity; or (iv) any of Client’s products or services.
   • or (vi) the failure of Provider to comply with the laws, rules, regulations, ordinances, statutes, codes and orders of any governmental or quasi-governmental or regulatory or administrative authority.
   • Procedure. Each party’s indemnification obligations under this section are conditioned upon the indemnified party: (i) promptly notifying the indemnifying party of any claim in writing, no later than thirty (30) days after actual knowledge of the claim; and (ii) cooperating with the indemnifying Party in the defense of the claim.  The failure to give prompt written notice shall not, however, relieve the indemnifying party of its indemnification obligations, except and only to the extent that the indemnifying party forfeits rights or defenses by reason of such failure. Such notice by the indemnified party shall describe the claim in reasonable detail, shall include copies of all material written evidence thereof, and shall indicate the estimated amount, if reasonably practicable, of the loss that has been or may be sustained by the indemnified party.  In the event that a claim is brought, the indemnifying party shall have the right and option to control the defense of such claim with counsel of its choice, provided however that the indemnified party at its own expense may participate and appear on an equal footing with the indemnifying party in the defense of any such claims.  The indemnifying party shall not consent to judgment or concede or settle or compromise any claim without the prior written approval of the indemnified party, which approval shall not be unreasonably withheld.
9. General Provisions.
   • Governing Law; Severability. This Agreement will be governed by and construed in accordance with the laws of the State of Nevada excluding that body of law pertaining to conflict of laws. Any suit arising out of this Agreement shall be brought in the appropriate federal or state court located in Clark County, in the State of Nevada. Each party agrees that such court shall have personal jurisdiction over it. If any provision of this Agreement is for any reason found to be unenforceable, the remainder of this Agreement will continue in full force and effect.
   • Notices. Any notice, consent or approval required or permitted under this Agreement shall be in writing and shall be deemed given when delivered (1) personally; (2) by postage mail; or (3) by email. Notices shall be provided to either party at the mailing address and/or email address provided to each party by the other, which such addresses may be updated upon written notice of such change to the other party from time to time.
   • Insurance. Provider will maintain at least minimum coverage in amounts sufficient to insure Provider’s continuing operations. Upon request, Provider will furnish Client certificates evidencing such insurance coverage.
   • Force Majeure. If performance of any obligation under this Agreement or applicable SOW is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent reasonably necessary by such event. The term “Force Majeure” shall include, without limitation, acts of nature, acts of God, fire, explosion, vandalism, storm, epidemics, pandemics, or other similar occurrence; orders or acts of military or civil authority; national emergencies, insurrections, riots, wars, strikes, lock-outs, work stoppages, or other labor disputes, supplier failures, shortages, breach, or delays. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted or caused by such party, or its employees, officers, agents or affiliates.
   • Neutral Interpretation. This Agreement shall not be construed either for or against Provider or Client but shall be interpreted in accordance with the general tenor of its language. Provider and Client understand, agree and acknowledge that: (i) this Agreement has been freely negotiated by both parties; and (ii) that, in any controversy, dispute, or consent over the meaning, interpretation, validity, or enforceability of this Agreement or any of its terms or conditions there shall be no inference, presumption, or conclusion drawn whatsoever against either party by virtue of that party having drafted this Agreement or any portion thereof.
   • Assignment. Provider acknowledges that Client has entered into this Agreement on the basis of the particular abilities of Provider. Accordingly, Provider shall not and shall not have the right to assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Client.
   • Counterparts. This Agreement and any SOW may be executed and delivered in one or more counterparts and all such counterparts shall be deemed an original and together shall be deemed to constitute one and the same instrument. The counterparts of this Agreement may be executed and delivered by email or other electronic signature by any of the parties to any other party, and the receiving party may rely on the receipt of such document so executed and delivered as if the original had been received. All parties to this Agreement consent to the use of digital signatures as sufficient signing of the record. All electronic signatures shall be fully enforceable and deemed originals.
   • Headings. The headings used in this Agreement are for convenience only and shall not be considered in construing or interpreting this Agreement.
   • Severability. In the event that any phrase, clause, sentence, paragraph, section, article, or other portion of this Agreement shall become illegal, null or void, or against public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal, null or void, or against public policy, the remaining portions of this Agreement shall not be affected thereby and shall remain in force and effect to the full extent permitted by law.
   • Complete Understanding; Modification. This Agreement and any SOW constitute the complete and exclusive understanding and agreement of the parties and supersede all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto. In the event of any conflict between any term the Agreement or the SOW, the specific conflicting term of this Agreement shall supersede the SOW.
   • No Partnership. Nothing contained in this Agreement shall be deemed or construed by the parties or by any third party to create the relationship of principal and agent or of partnership or of joint venture or of any association between Provider and Client.

 

Statement of Work

SERVICES: Pursuant to the Services Agreement executed by the parties into which this SOW is incorporated, Provider shall provide the following Services to Client and Client shall pay to Provider compensation for such Services as set forth herein:

The statement of work covers the Med Spa- Bronze, Silver and Gold tiers, the Plastic Surgeon- Bronze, Silver and Gold tiers, and the Enterprise B2B- Bronze, Silver, and Gold Tiers. The base minutes and extra minute pricing is the current rate as shown on the salesMD website, https://www.salesmd.com/pricing-appointment-scheduling/

Contact Center

Provider will make and answer phone calls, leave voicemails, send, and receive texted messages, send emails, for the purposes of booking appointments, consultations, meetings, treatments, procedures, and surgeries. Provider will present itself as the Clients practice/company and will understand the patients/end customers’ requirements.

Provider will capture required information from patient/end customer, based on the Clients requirements and as documented during the Onboarding Meeting. Information will be added to the Clients EHR/EMR/CRM or other defined database.

Onboarding

Provider will facilitate an onboarding meeting to review the onboarding document. The onboarding meeting is for the provider to fully understand the practice/business allowing provider to fully represent them during all communications with the patient/end customer.

Provider will integrate the Clients leads forms, social media, telephony, allowing Provider to manage leads seamlessly.

Bolt-on Minutes

Client purchases bolt-on minutes to cover extra minutes when the base minutes are fully consumed during the billable month. Bolt-on minutes are purchased as a dollar value and are consumed at the Tier rate for the chosen package.

Monies held for bolt-on minutes do not expire and any unused funds will be refunded at the end of the contract.

 

Mutual Non-Disclosure Agreement

By checking this box and engaging Take Stock Global, a Nevada corporation d/b/a salesMD (“Provider”), you acknowledge and agree that you have read, understand, and agree to be bound by this Mutual Nondisclosure Agreement (“MNDA”). (Each, a “Party” and collectively, the “Parties”).

1.       Purpose.  The Parties intend to enter into that certain Services Agreement on a date even herewith and, in connection with the Services Agreement, each Party may disclose to the other Party certain confidential, proprietary, technical, and business information that the disclosing Party wishes the receiving Party to treat as confidential.

2.       “Confidential Information” means any information disclosed by a Party to the other Party, directly or indirectly, in writing, orally, or by inspection of tangible objects, including, without limitation, documents, prototypes, samples, materials, processes, software, techniques, know-how, trade secrets, methods, client/customer list and information, financial information, operational information, or similar information, whether or not the same is designated as “Confidential,” “Proprietary” or a similar designation.  Information communicated orally will be considered Confidential Information if the information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure.  Confidential Information may also include information disclosed to the disclosing Party by third parties.  Confidential Information will not, however, include any information that:

(i) was publicly known and made generally available in the public domain prior to the time of the disclosing Party’s disclosure;

(ii) becomes publicly known and made generally available after the disclosing Party’s disclosure to the receiving Party through no action or inaction of the receiving Party;

(iii) is already in the receiving Party’s possession at the time of the disclosing Party’s disclosure, as shown by the receiving Party’s files and records;

(iv) is obtained by the receiving Party from a third party without (to the receiving Party’s knowledge) a breach of the third party’s obligations of confidentiality; or

(v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by the receiving Party’s files and records.

3.       Non-use and Nondisclosure.  No Party will use the other Party’s Confidential Information for any purpose other than to the Services Agreement.  No Party will disclose the other Party’s Confidential Information to third parties or to such Party’s employees or contractors, except to those employees and contractors of the receiving Party who are required to have the information in order to perform its obligations under the Services Agreement. A Party may disclose the other Party’s Confidential Information if required by law so long as the receiving Party notifies the disclosing Party promptly in writing prior to the disclosure and assists in obtaining an order protecting the information from public disclosure. No Party will reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody the other Party’s Confidential Information and that are provided to the Party in accordance with this MNDA.

4.       Maintenance of Confidentiality.  Each Party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the other Party’s Confidential Information.  Without limiting the foregoing, each Party will take at least those measures that it takes to protect its own most highly confidential information and, prior to any disclosure of the other Party’s Confidential Information to its employees and contractors, will have the employees and contractors sign a non-use and nondisclosure agreement that is substantially similar in content to this MNDA.  No Party will make any copies of the other party’s Confidential Information unless approved in writing by the other Party.

5.       Return of Materials.  All documents and other tangible objects containing or representing Confidential Information and all copies of them will be and remain the property of the disclosing Party.  Upon the disclosing Party’s request, the receiving Party will promptly deliver to the disclosing Party all Confidential Information, without retaining any copies.

6.       Non-Solicitation.  The Parties covenant and agree that they shall not directly or indirectly, on their own behalf or on behalf of any other person, firm, partnership, corporation, association or other entity, induce or solicit or attempt to induce or solicit any person to leave the employ of, or contractual engagement with, the other Party.

7.       No License.  Nothing in this MNDA is intended to grant any rights to either Party under any patent, copyright, or other intellectual property right whatsoever of the other Party, nor will this MNDA grant any Party any rights in or to the Confidential Information of the other Party, except as expressly set forth in this MNDA.

8.       Term.  The receiving Party’s obligations under this MNDA will survive until all Confidential Information of the disclosing Party becomes publicly known and made generally available through no action or inaction of the receiving Party.

9.       Remedies.  Each Party acknowledges that any violation or threatened violation of this MNDA may cause irreparable injury to the other Party, entitling the other Party to seek injunctive relief, without the need to post a bond, in addition to all legal remedies.

10.    Miscellaneous.  This Agreement binds and inures to the benefit of the Parties and their successors and assigns.  This MNDA is governed by Nevada law, without reference to conflict of laws principles of any jurisdiction.  This document contains the entire agreement between the Parties with respect to this MNDA’s subject matter. Any failure to enforce any provision of this MNDA will not constitute a waiver of that provision or of any other provision.  This MNDA may not be amended, nor any obligation waived, except by a writing signed by both Parties.  This MNDA may be executed in two or more counterparts, via electronic transmission, each of which is deemed to be an original, but all of which together constitute the same agreement.