Crystal Clear Subscription Agreement
To help the government fight the funding of terrorism and money laundering activities, Federal Law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. When you open an account, we will ask your name, address, date of birth and other information that allows us to identify you. We may ask to see your driver’s license or other identifying documents. CUSTOMER INFORMATION Organization Type LLCCorporationProprietorship MAIN OFFICE CONTACT FOR MARKETING PURPOSES RELEASE AND AUTHORIZATION The undersigned individual who is either a principal, a personal guarantor or a sole proprietorship of the credit applicant, recognizing that his or her individual credit history may be a factor in the evaluation of the credit of the applicant, hereby consents to and authorizes the above named business credit provider and any assignee, lender or funding service that may be utilized to obtain and use a consumer credit report on the undersigned, now and from time to time, as may be needed in the credit evaluation and review process and waives any right or claim they would otherwise have under Fair Credit Reporting Act in absence of this continuing consent.
TERMS AND CONDITIONS:
1. PARTIES. This Software License and Subscription Agreement (the “Agreement”) is between the Subscriber (“Client”, “Practice”, “You” or “Your”) and Crystal Clear Digital Marketing, LLC (“Crystal Clear”, “We”, “Our” or “Us”).
2. ENTIRE AGREEMENT. This Agreement and the description of services described in the most current marketing system proposal and Exhibit B constitute the entire Agreement between Us and You. It contains the full understanding of the parties with respect to the subject matter hereof and no prior oral or written agreements, understandings, side agreements, guaranties, promises, conditions, representations or warranties shall be binding on Us. No modification shall be binding unless in writing and signed by both parties to this Agreement.
3. PAYMENTS. Payments (including Expenses) are due monthly, commencing 30 days after the execution of this Agreement, on the 1st of the month or any later date designated herein, and continue to be due on the same day of each following month until fully paid. For each and every payment to be paid by You under this Agreement that are not paid when due, You will pay Us a “late charge” equal to the greater of ten cents ($0.10) for each dollar overdue or twenty-five dollars ($25.00). This late charge will be due and payable with the next monthly payment and shall continue to accrue until so paid.
4. TERM & TERMINATION OF SERVICES. This Agreement shall remain in effect until the complete fulfillment of all of Your obligations for the indicated term of payments (the “Term”). The Agreement shall automatically renew on a month to month basis until terminated by You by providing Us at least 60 days prior written notice of termination by certified mail. Client agrees that We may terminate this Agreement upon any of the following events: (i) Client shall fail to cooperate, attend, participate in or respond to requirements of the Launch Process; (ii) Client is in default of the terms of this Agreement ; (iii) Client shall use the Software License or any of its components in a fraudulent or illegal manner; or (iv) initiation by or against Client of a proceeding under the Bankruptcy Code or the appointment of a receiver over the property of Client. We agree that Client may terminate this Agreement at any time after the 10th scheduled payment has been made by providing Us at least 60 days prior written notice of termination by certified mail. Upon termination, all outstanding payments due for services previously rendered and any outstanding costs shall be immediately due and payable to Us.
5. TAXES. If applicable, you are responsible for all taxes due in connection with this Agreement. You agree to report, file and pay when due to the appropriate governmental agency all taxes or fees (including sales/use tax, personal property tax, fines and penalties). If we are required by law to pay such taxes or other imposts on your behalf, you agree to reimburse us upon demand.
6. USE OF THE SOFTWARE LICENSE. Client agrees that its use of the Software License, including all products, features, components, internet sales and marketing strategies associated therewith, shall comply with all applicable terms and conditions hereto, and all applicable laws, including but not limited to advertising, privacy, and disclosure laws. Client also agrees it shall not exploit the Software License, products, features, components and internet sales or marketing strategies for gain, resale or distribution in any form or manner, nor shall it permit its shareholders, members, officers, managers, directors, employees, or agents to alter, circumvent, reverse engineer, recompile, decompile, disassemble, resell, pass-through, sublicense, rent, lease, or rebrand all or any part of the Software License, products, features, components, and internet sales and marketing strategies. Client also agrees that we reserve the absolute right to control the content of Client’s Marketing System to protect the integrity of the products, systems, and software licenses offered by us.
7. USE OF TRAINING MATERIALS. Client agrees that its use of the Training Materials, including all printed materials, programs, handouts, visuals, illustrations, media pieces, handouts, e-mail, CDs, podcasts or other products, features and marketing strategies associated therewith, shall at all times remain the property of Us and shall not be copied, reproduced, sold, distributed to others, referenced, sited, edited or relied upon by third parties without Our express written authorization.
8. AVAILABILITY OF SERVICE. While we will use commercially reasonable efforts to keep our Software Application available and accessible, the Software Application may be unavailable from time to time for repairs, upgrades, routine and emergency maintenance, or other interruptions that may be out of our reasonable control, including any outages of Third-Party Services or any related application programming interface (“APIs”) and integrations. Interruptions of our Software Application shall not serve as a basis to terminate your Agreement or demand any full or partial refunds or credits of prepaid and unused subscription fees.
10. CUSTOMIZATION, DELIVERY AND ACCEPTANCE. We will customize the Software System for delivery over the internet in accordance with the Plan referenced above. From the date of acceptance, (as hereinafter defined), until termination as provided herein, the Client shall utilize the Software License only in connection with its medical practice. Delivery of the Software License will be deemed complete when we provide Client with active logins to the Software Application. Client will not unreasonably withhold or delay its acceptance. Client agrees that it will devote substantial effort assisting Us in good faith with the design, development, setup and production of the Software System and that, in the event the delivery or acceptance of the Software License is delayed beyond 45 days after the date hereof due to Client’s action or inaction, We reserve the right to immediately invoice Client for 50% of the Total Contract Price.
11. INTELLECTUAL PROPERTY. Client hereby grants to us a non-exclusive, worldwide, royalty free license to use any text, photographs or other images provided by Client for use with the Software License (“Client Materials”). Client represents and warrants to us that Client has the right to publish the Client Materials without infringing upon the rights of any third party or in violation of law. We shall own all elements of the Software License, including, but not limited to software, website designs and formats, graphics, internet sales and marketing strategies, and all other intellectual property used to provide the Software License (“Our Property”). Following any termination of the Software License, all Our Property will remain the property of Us, and it shall not use or disclose to third parties any nonpublic personal information (as defined in the Gramm-Leach-Bliley Act) received in connection with this Agreement, except as necessary to provide the Software License to Client. See exhibit “A” for a detailed description as to what property will be transferable to the client upon termination.
12. NON-COMPETE. In view of the knowledge which may be acquired by the Client of Our internet sales and marketing techniques, formulas, patterns, concepts, approaches, designs, features, and recommendations, each of which has been developed by Us, and to induce Us to enter into this Agreement, the Client agrees that it and its shareholders, members, officers, managers, directors, employees, or agents will not during the Term of this Agreement, nor for one year after termination hereof, and without geographical limitation, directly or indirectly engage in the business, occupation, or trade of web-based marketing (including website design and development) or training either as owner, partner, employee, employer, director, officer, principal, agent, or in any other relation or capacity whatever, nor shall Client offer for sale similar Marketing Systems, nor be similarly engaged for itself or for any other person, firm, or corporation engaged in a like or competing line of business in which We are now or may during the Term of this Agreement be engaged. Client acknowledges that monetary damages may not be a sufficient remedy for breach of this Section and that we shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
13. CONFIDENTIAL CLIENT DATA. Client’s customer data (names, addresses, telephone numbers, e-mail addresses, and insurance policy information and other personal data) ("Confidential Client Data") provided by Client to Us pursuant to this Agreement shall be maintained by us in accordance with the following confidentiality policy. We shall hold all Confidential Client Data in confidence and not disclose it to third parties excepting, however, our employees and other companies and individuals who perform functions on behalf of us in connection with the Software License and training services. Examples include data analysis and manipulation to format data into our lead management tools. All written Confidential Client Data actually delivered to Us by You shall be returned to You upon your written request.
14. LIMITATION OF LIABILITY. Our liability for any breach of this Agreement shall not exceed, in the aggregate an amount equal to the monthly payment set forth herein.
15. NON-HIRE. Client agrees that during the Term and for 2 years following the termination of this Agreement for any reason, it shall not, directly or indirectly, solicit, offer employment to or hire any personnel employed by Us. We reserve all rights and remedies for breach of this provision including, without limitation, the right to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.
16. HIPPA: We agree to comply fully with the requirements of the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191 (the “Act”), the privacy standards adopted by the U.S. Department of Health and Human Services (“HHS”) as they may be amended from time to time, 45 C.F.R. parts 160 and 164, subparts A and E (the “Privacy Rule”), the security standards adopted by the Department as they may be amended from time to time, 45 C.F.R. parts 160, 162, and 164, subpart C (the “Security Rule”), and the Privacy provisions (Subtitle D) of the Health Information Technology for Economic and Clinical Health Act, Division A, Title XIII of Pub. L. 111-5, and its implementing regulations (the “HITECH Act”), due to its status as a “Business Associate” under the Act. As such, we shall enter into the Business Associate Agreement to be signed separately. In the event of a conflict between these Terms and Conditions and the Business Associate Agreement, the provisions of the Business Associate Agreement shall control. (The Act, the Privacy Rule, the Security Rule, and the HITECH Act are collectively referred to as “HIPAA” for the purposes of this Agreement.)
17. ANNUAL FEE: This annual fee will be charged on your 13th monthly subscription payment and will re-occur automatically every year thereafter. This fee will cover any maintenance required on your complete Software License including but not limited to one-time updates and improvements to your digital presence (compliance-based search engine optimization and infrastructure) as market conditions demand. Some examples of items currently covered are Software HIPAA security updates and maintenance, SSL (secure socket layer) Certificate, identifying and correcting ADA compliance issues, AMP (accelerated mobile pages), server configurations (website speed enhancement).
18. ADA: The ADA compliance services meet the guidelines of the Worldwide Web Consortium WCAG 2.1 Level A/AA Web Accessibility Standards as of the date of this Agreement. No representations or warranties are made hereunder as to whether these services will comply with state or federal law or rules and regulations which exist or are adopted thereunder in Your jurisdiction concerning access to websites by disabled persons. You understand that We have not provided legal advice. You should consult your legal counsel if you have questions concerning Your compliance with website ADA compliance laws, rules and regulations to enable disabled persons access to your website.
19. WARRANTY. THE APPLICATIONS AND PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, GUARANTEES, CONDITIONS, OR REPRESENTATIONS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, DESIGN, TITLE, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE CANNOT AND DO NOT WARRANT THAT THE APPLICATIONS AND PRODUCTS WILL BE UNINTERRUPTED, AVAILABLE, ACCESSIBLE, SECURE, TIMELY, ACCURATE, COMPLETE, FREE FROM VIRUSES, OR ERROR-FREE. 19. CRYSTAL CLEAR DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK OR ANY OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, DATA NOT WITHIN CRYSTAL CLEAR’S REASONABLE CONTROL.
20. INDEMNIFICATION: Client agrees to indemnify and hold Us harmless, its officers, directors, managers, members, employees, assignees and agents from and against any and all claims, liabilities, losses, causes of action, judgments, settlements, damages, costs and expenses, including, but not limited to reasonable attorneys’ fees and court costs arising from: (i) Client’s breach of any term of this Agreement; (ii) Client’s use of the Software License or any of its components; and (iii) claims by third parties in any manner related to Client’s use of the Software License.
21. DEFAULT AND REMEDIES. Any of the following events or conditions will constitute default hereunder: a) you fail to pay any sum due us within 10 days after the due date thereof; b) You fail to observe or perform any other term, covenant or condition of this Agreement and such failure continues for 10 days following the receipt of written notice from Us; c) any representation or warranty made by You herein or in any document delivered by You in connection herewith will prove to have been misleading or inaccurate in any material respect when made. Upon the occurrence of an event of default, We may, at our option, a) suspend all services; b) require you to pay the remaining balance of the payments due under this Agreement; or c) cancel this Agreement. In addition, You agree to pay Us all costs and expenses, including reasonable attorney’s fees, incurred by Us, in exercising or attempting to exercise any of Our rights or remedies, plus pay interest at the late fee rate on all amounts owing until paid.
22. OPPORTUNITY TO CURE. In the event that you believe Crystal Clear is not providing services that are listed in Exhibit B, You must provide Crystal Clear with reasonable notice of any alleged deficiencies in performance and if Crystal Clear agrees there are deficiencies, Crystal Clear shall have 60 days to cure any alleged defect in performance.
23. ASSIGNMENT/TRANSFER. YOU MAY NOT ASSIGN YOUR INTEREST IN THIS AGREEMENT WITHOUT OUR PRIOR WRITTEN CONSENT. PROVIDED YOU ARE NOT IN DEFAULT UNDER THIS AGREEMENT (AND SUBJECT TO APPLICABLE LAW), YOU MAY ENFORCE ALL RIGHTS YOU HAVE DIRECTLY AGAINST US, BUT NOT AGAINST ANY ASSIGNEE OF OURS. YOU AGREE TO ONLY PURSUE ANY DISPUTE YOU MAY HAVE REGARDING OUR PERFORMANCE HEREUNDER DIRECTLY WITH US AND NOT WITH ANY ASSIGNEE OF OURS. WE MAY TRANSFER OUR INTEREST IN THIS AGREEMENT, IN WHOLE OR IN PART, WITHOUT YOUR CONSENT AND WITHOUT NOTICE TO YOU. THE RIGHTS OF ANY ASSIGNEE SHALL NOT BE AFFECTED BY ANY BREACH OR DEFAULT BY US AND YOU SHALL NOT ASSERT AGAINST ANY SUCH ASSIGNEE ANY SET-OFF, DEFENSE OR COUNTERCLAIM THAT YOU MAY HAVE AGAINST US OR ANY OTHER PERSON. UPON NOTICE FROM US OR ANY ASSIGNEE, YOU SHALL MAKE ALL PAYMENTS DUE UNDER THIS AGREEMENT AS DIRECTED BY US OR SUCH ASSIGNEE. SUCH ASSIGNEE SHALL BE ENTITLED TO ENFORCE THE RIGHTS SO TRANSFERRED AGAINST YOU, BUT SHALL BE UNDER NO LIABILITY OR HAVE ANY OBLIGATION TO PERFORM ANY OF OUR OBLIGATIONS.
24. MISCELLANEOUS: Any claim arising under or related to this Agreement will be governed by the laws of the State of Florida, or the state where the any Assignee’s principal place of business is located. YOU HEREBY CONSENT TO PERSONAL JURISDICTION AND VENUE IN SUCH COURTS AND WAIVE ANY RIGHT TO TRANSFER VENUE. CLIENT HEREBY WAIVES THEIR RIGHTS TO A JURY TRIAL FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
25. FACSIMILIE SIGNATURE. You agree that a facsimile copy of this Agreement bearing authorized signatures may be treated as an original. This agreement is subject to the terms and conditions above all of which pertains to this agreement and which, you agree to having read. This agreement is not binding until accepted by us. You certify that all the actions required to authorize execution of this agreement, including Your authority have been fullfilled. Additionally by your signature below. Your hereby acknowledge receipt of notice that that we have sold and assigned to Crystal Clear Financial Services,LLC ("CCFS") all of our right, title, and interest (but none of our obligation, all of which remains with us) in and to this agreement. This assignment is made in accordance with Section 23 of this agreement. Without limiting the generality of the forgoing. CCFS is the owner of this agreement and the party entitled to collect and receive all payments and others sums not or hereafter becoming due pursuant thereto, all without right of deduction, set-off, abatement or counterclaim by client. By it's signature below, client reaffirms that its oblogation to make payments under this agreement are absolute and unconditional in all respects.
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Signed by Joe Amaral
Signed On: June 5, 2020
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Document Name: Crystal Clear Subscription Agreement
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