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LifePro Solutions Inc. Terms of Service

These Terms of Service are incorporated by reference into the Service Agreement you (defined as "Client" in the Service Agreement) entered into with LifePro Solutions Inc, a New Jersey corporation ("LifePro") The Effective Date of Client's Service Agreement or any Statement of Work or Order Form is the date such Agreement, Statement of Work or Order Form is accepted by LifePro.

1. LifePro Services. LifePro shall perform the services set forth in the document Client executed entitled Services Agreement and any subsequent documents entitled a Statement of Work or Order Forms (including but not limited to emails or online forms) ("LifePro Services"). The Services Agreement constitutes the initial Order Form or Statement of Work. All work will be performed professionally and in accordance with industry standards.

2. Term of Agreement. This Agreement shall remain in effect until terminated by its terms.

3. Compensation. Client shall pay LifePro the compensation as set forth in the Order Form or Statement of Work.

4. Independent Contractor Status. Both Client and LifePro agree that LifePro will act as an independent contractor in the performance of its duties under this Agreement.

5. Assignment. Neither party may assign this Agreement without the written consent of the other party, except that either party may assign this Agreement in conjunction with the sale of substantially all assets of the assigning party or a controlling ownership interest in the assigning party after 10 days advance written notice to the other party. This prohibition against assignment does not preclude the use of contractors by LifePro.

6. Confidentiality.

a. "Confidential Information" Defined. "Confidential Information" means any data, materials or information that is not generally known to the public and that is owned or possessed by either party ("Disclosing Party") and is disclosed to the other party ("Receiving Party"), whether in oral, written, digital or other form of disclosure. Confidential Information also includes any third party information which Disclosing Party is required to keep confidential ("Third Party Confidential Information"). Without limitation of the foregoing, the parties agree that the terms of this Agreement constitute Confidential Information (yet the fact that the parties have entered into the agreement and the general nature of the relationship between the parties is not confidential). This agreement may be disclosed by the Receiving Party in proper due diligence processes in business transactions in accordance with industry standards.


b. "Trade Secrets" Defined. "Trade Secret" shall mean information owned or possessed by Disclosing Party, without regard to form, that is disclosed by Disclosing Party to Receiving Party, including but not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers, in any form or format, which is not commonly known by or available to the public and which: (i) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Trade Secrets specifically include any Confidential Information satisfying the above criteria.

c. Excluded From "Confidential Information." Confidential Information does not include any data or information which Receiving Party can demonstrate: (i) was already known to Receiving Party at the time of disclosure; (ii) was independently developed by Receiving Party without reference to Disclosing Party's Confidential Information; (iii) is in the public domain; (iv) was rightfully disclosed to Receiving Party by a third party without obligation of confidentiality; or (v) the fact that Client is a LifePro customer and the general nature of the work performed by LifePro for Client.

d. Prohibition Against Disclosure and Use of Confidential Information & Trade Secrets. During the term of this Agreement, and indefinitely thereafter, Receiving Party will not, except as otherwise expressly directed by Disclosing Party, use, copy, or disclose, or permit any unauthorized person access to, any of Disclosing Party's Trade Secrets, except as expressly permitted herein and necessary for accomplishment of activities required hereby. During the term of this Agreement and for a period of two (2) years after termination hereof, Receiving Party will not use, copy, or disclose, or permit any unauthorized person access to, Disclosing Party's Confidential Information, except as expressly directed by such party or as permitted herein. Receiving Party agrees to comply with any confidentiality agreements or the like to which Disclosing Party is a party to the extent Disclosing Party notifies Receiving Party of such agreements and obligations in writing prior to execution of this Agreement.

e. Confidential Information & Trade Secrets Disseminated Only on Need to Know Basis. Receiving Party agrees that it will disclose Confidential Information or Trade Secrets to its employees or agents only as necessary for the performance of Receiving Party's obligations under this Agreement. Prior to disclosing Confidential Information or Trade Secrets to such employees or agents, Receiving Party will verify with Disclosing Party that such employees or agents are subject to appropriate confidentiality agreements.

f. Safeguards Against Disclosure. Receiving Party agrees to use at least the same degree of care to avoid and prevent disclosure of Disclosing Party's Confidential Information and Trade Secrets as Receiving Party uses to prevent disclosure of its own Confidential Information and Trade Secrets, or Receiving Party shall exercise a commercially reasonable degree of care, whichever degree of care is higher.

g. Equitable Relief. Receiving Party acknowledges and agrees that the misappropriation, unauthorized use or disclosure of Confidential Information or Trade Secrets would cause irreparable harm to the Disclosing Party. In the event of any breach of any part of this Section by Receiving Party, Disclosing Party shall be entitled to equitable relief, including but not limited to a temporary restraining order, temporary injunction and/or a permanent injunction. The rights of Disclosing Party under this Section are in addition to the rights that Disclosing Party may have under this Agreement, common law or statutory law.

7. Nonrecruitment/Nonhire. During the term of this Agreement and for twelve (12) months from the termination of this Agreement for any reason, Client shall not: (1) recruit or encourage, directly or indirectly, any LifePro employees, agents or independent contractors to leave LifePro's employ or discontinue doing business with LifePro, or (2) hire any LifePro employee, agent or contractor with whom Client had material contact under this Agreement during the 12 month period prior to termination of this Agreement to perform services for Client similar to the services performed by such employee, agent or contractor for LifePro while employed or retained by LifePro.

8. Notices. All notices, requests and demands given or made pursuant to this Agreement shall be sent by certified mail, registered mail, or private carrier such that the notifying party can prove both delivery of notice and that the recipient received the notice (or refused to receive the notice) and the respective dates thereof. Notices shall be sent to the address provided in the Service Agreement, Order Form or Statement of Work or to any successor address provided by either party. Additionally, duplicate notices shall be sent via fax and email to the last known fax and email addresses of the recipient.

9. Intellectual Property Rights.

a. Ownership of Intellectual Property. As between the parties, Client shall own, and LifePro hereby assigns and agrees to assign in the future as necessary, all property (and all rights in registrations and applications related to such property) which is created by LifePro (whether alone or jointly with Client or a third party) pursuant to this Agreement ("Created Works"), including but not limited to, property subject to protection by intellectual property laws (relating to patents, trademarks and copyrights), laws pertaining to trade secrets or unfair competition, similar laws protecting intangible property (database or information protection laws) and information not protectable by the preceding laws yet otherwise protectable (all of such property being referred to herein as "Intellectual Property"). Any property subject to copyright protection which qualifies as a "work made for hire" under the United States Copyright laws is hereby deemed a work made for hire and is owned by Client from the moment of creation. However, notwithstanding the foregoing, LifePro retains all rights to works created prior to the execution of this Agreement or created independently of this Agreement and all adaptations or derivative works therefrom ("Pre-Existing Works"), subject the license to Pre-Existing Works provided by LifePro herein. As an illustration, and not a limitation, the following constitute Pre-Existing Works: Existing Software, Third Party Existing Software.

b. Equitable Relief. The parties acknowledge and agree that the misappropriation of, unauthorized use of or infringement of Intellectual Property would cause irreparable harm to the owner thereof. In the event of any breach of any part of this Section by either party, the other party shall be entitled to equitable relief, including but not limited to a temporary restraining order, temporary injunction and/or a permanent injunction. The rights of the parties under this Section are in addition to the rights that such parties may have under this Agreement, common law or statutory law.

c. License to Pre-Existing Works. Software code (source, object or compiled) provided by LifePro pursuant to this Agreement may include existing software (the "Existing Software") that was developed prior to execution of this Agreement or has been independently developed or is otherwise owned by LifePro ("LifePro Existing Software") or a third party ("Third Party Existing Software"). Any Existing Software owned by LifePro is provided to Client hereunder in accordance with the LifePro Existing Software License below. Any Third Party Existing Software will be provided to Client in accordance with the terms of a separate software license or agreement that Client shall enter into with said third party, at Client's sole expense. LifePro Existing Software License is a worldwide, nonexclusive, perpetual, fully paid, royalty free license to use, reproduce, display, distribute, perform, and prepare derivative works from the LifePro Existing Software without any duty to account to LifePro, yet such license is limited to the purpose of Client's use for its internal use to further its core business as conducted at the time this Agreement is entered into. Client may not sublicense its rights to LifePro Existing Software, and Client may not assign its rights to such LifePro Existing Software except in conjunction with the sale of substantially all assets or ownership of Client.

d. Contingency to Grant of Intellectual Property & License. Notwithstanding any term to the contrary in this Agreement, all grants of ownership under this Section or licenses granted under this Section are contingent upon full payment of all amounts owed by Client under this Agreement for any reason and all of Client's payment obligations under this Agreement are conditions precedent to LifePro's grants of ownership and grants of license under this Section.

10. Indemnification. Each party ("Indemnifying Party") agrees to indemnify and hold the other party, its officers, directors, attorneys, employees and agents ("Indemnified Party") harmless from any and all claims, losses, damages, expenses, judgments or other liabilities (including but not limited to reasonable attorneys' fees which are incurred prior to, during or after trial, bankruptcy proceeding or any alternative dispute mechanism, and including but not limited to tax liability, interest and penalties) for which Indemnified Party becomes obligated to pay due to (1) any material breach of this Agreement by Indemnifying Party, its employees or agents, (2) property damage or personal injury caused by the negligent or willful acts or omissions by Indemnifying Party, its employees or agents, or (3) illegal acts or omissions by Indemnifying Party, its employees or agents.

11. Entire Agreement & Modification. This Agreement (made up of these Terms of Service, the Services Agreement (which constitutes the first order form) and any subsequent Order Forms) represents the entire agreement between the parties as to the matters referenced herein and is not subject to change or modification except by written agreement signed by both parties.

12. Dispute Resolution. The parties will attempt in good faith to resolve any issue, dispute, or controversy arising out of or relating to this Agreement. If any controversy or claim arising out of, or in any way related to, this Agreement is not resolved in a reasonable manner, at the request of either party, the matter will settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration will take place in Essex county New Jersey. The arbitration award will be valid and binding upon the parties, and judgment thereon may be entered and enforced as a final judgment in any court of competent jurisdiction. However, claims for injunctive relief or other equitable relief may be filed in the state or federal courts of New Jersey for an order effective until the conclusion of the arbitration and enforcement of the arbitration award. Furthermore, notwithstanding the foregoing, for claims qualifying for small claims court in New Jersey, either party may sue in small claims court in New Jersey if the good faith effort to resolve the issue/dispute fails after a reasonable time (which reasonable time for the purpose of a small claims court action is no later than 10 days from the date the complainant sends a detailed letter to the other party identifying the complaint and an acceptable solution/cure). The arbitrator and court shall award attorneys' fees, costs and expenses to the prevailing party in any arbitration or court proceeding (including small claims court). The parties agree to initiate arbitration in lieu of appealing any small claims court judgment. The parties waive in person service of process and agree that service pursuant to the notice provision of this Agreement shall constitute sufficient legal service for arbitration or litigation (yet this sentence does not create any right to litigation).

13. Severability. The covenants set forth in this Agreement shall be considered and construed as separate and independent covenants. Should any part or provision of any covenant be held invalid, void or unenforceable in any court of competent jurisdiction, such invalidity, voidness or unenforceability shall not render invalid, void or unenforceable any other part or provision of this Agreement.

14. Termination. Except to the extent provided in any Order Form or Statement of Work, this Agreement may be terminated by either party, with or without cause, upon not less than 30 days written notice of termination to the other party (however, prior to a Client providing notice of termination, the Client must make full payment of any amounts due LifePro). In the event Client fails to make any timely payment under this Agreement, LifePro may cease performing Services or terminate this Agreement effective upon written notice to Client.

15. Survivability. The terms and conditions of this Agreement that, by their sense and context, are intended to survive the termination, performance or completion of this Agreement shall so survive.

16. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to the conflict of laws provisions thereof. The state and federal courts located in the State of New Jersey shall have exclusive jurisdiction of the parties for the purposes of adjudicating all disputes that may arise under this Agreement. The parties hereby waive all objections to venue and personal jurisdiction in those forums for such disputes and agree that service of process may be made by in accordance with the notice provision of this Agreement.

17. Waiver. No waiver, amendment or modification of any provision of this Agreement or any agreements in connection with such waiver, amendment, or modification shall be valid unless in writing duly executed by both parties. No delay or failure by either party to exercise or enforce at any time any right or provision of this Agreement will be considered a waiver thereof or of such party's right thereafter to exercise or enforce each and every right and provision of the Agreement. No single waiver will constitute a continuing or subsequent waiver.

18. Limitation on Warranties and Cap on Liability.

FOR A PERIOD OF 30 DAYS FOLLOWING DELIVERY OF THE SERVICES, THE SERVICES WILL SUBSTANTIALLY CONFORM TO ANY SPECIFICATIONS MUTUALLY AGREED TO IN WRITING IN THE ORDER FORM OR STATEMENT OF WORK. IN THE EVENT OF ANY BREACH OF THIS WARRANTY, LIFEPRO'S SOLE RESPONSIBILITY, AND CLIENT'S SOLE REMEDY, IS FOR LIFEPRO TO MAKE REASONABLE EFFORTS TO REMEDY ANY DEFECTS, ON A TIME AND MATERIALS BASIS IN ACCORDANCE WITH THE APPLICABLE ORDER FORM OR STATEMENT OF WORK. OTHER THAN AS STATED HEREIN, LIFEPRO MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERABLES OR SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

THE MAXIMUM LIABILITY OF LIFEPRO OR ITS EMPLOYEES, AGENTS OR CONTRACTORS (AND CLIENT'S MAXIMUM REMEDY) WITH RESPECT TO SERVICES OR GOODS PROVIDED OR TO BE PROVIDED UNDER THIS AGREEMENT OR WITH RESPECT TO ANY CLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF SECTION 10 OF THIS AGREEMENT) SHALL IN NO EVENT EXCEED THE TOTAL FEES PAID DURING THE TWELVE MONTH PERIOD PRECEDING ANY OCCURRENCE OR INCIDENT OF ANY KIND GIVING RISE TO LIABILITIES OR DAMAGES. IN NO EVENT SHALL LIFEPRO OR ITS EMPLOYEES, AGENTS OR CONTRACTORS BE LIABLE (AND COMPANY SHALL HAVE NO REMEDY) (I) UNDER ANY THEORY INCLUDING CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR (II) FOR DAMAGES FOR LOSS OF DATA, UNAVAILABILITY OF DATA OR THE SYSTEM, LOSS OF USE OF COMPUTER HARDWARE, DOWNTIME, LOSS OF GOODWILL, LOSS OF REVENUE, PROFITS OR CUSTOMERS, OR SOFTWARE OR COMPUTER HARDWARE MALFUNCTION, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

19. Force Majeure. Neither party shall be liable for any delay or non-performance of any covenant contained herein nor shall any such delay or non-performance constitute a default hereunder, or give rise to any liability or damages if such delay or non-performance is caused by an event of "force majeure." The term "force majeure" means events beyond the reasonable control of such party. All parties shall make a good faith effort to effectuate this Agreement where there is an occurrence of a force majeure during and after the occurrence to the extent commercially reasonable.