Master Services Agreement

 

This  Master  Services  Agreement  (the “Agreement”)  is  made and  entered  into  as of  06/23/2022 (the “Effective Date”), by and among [Client] with offices at [Address] (“Client”), and LabFinder, LLC, a New York limited liability company with offices at 969 Third Avenue, 3rd Floor New York, New York 10022, (“LF”).

 

WHEREAS, LF is in the business of providing software technology, products and services;

 

WHEREAS, LF and Client desire that LF furnish Client with the software products, solutions and/or access to LF’s system set forth herein, in Schedule 1, and the Statement of Work.

 

NOW THEREFORE, in consideration of the promises and the mutual obligations contained in this Agreement, and for other good and valuable consideration, the parties agree as follows:


  1. Parties; Program.  Reference to “we”, “us”, “our” or the like is deemed to include LF and its assignees and successors. Reference to “you”, “your” or the like is for all purposes deemed to include the undersigned. The term “Program” includes our website(s) including LabFinder.com (and any additional and successor websites), software applications (mobile and Internet-based), instructions, materials (whether housed online, on a server/cloud or downloadable), content, layout, tables, data, consumer lead database (our registered users/consumers/subscribers) and any service, product or functionality we offer, as well as all associated intellectual property including trademarks, patents and copyrights, all now or hereafter existing. 

 

  1. Program Functionality. The Program functionality available to you is the same as that available to all participating listing providers of the same type, and includes, among other then-available functionality, a listing of your locations including business hours, photos, logo and insurance participation (as subscribed to by you) searchable by the user based on his/her location and payor participation; the ability of end users to schedule and access by you to a dashboard containing scheduling information (along with the ability to adjust scheduling) and scheduled user demographics. You must upload test results (for concurrent access by consumers and the ordering practitioner) and accept electronic orders as a condition of participation. You further agree to participate in our program for self-pay as well as our Widget program at all times during the term hereof. You must use the Widget at all times. The Widget is a clickable logo that you will at all times during the term place prominently on your website homepage (it only shows your locations as results). We retain the right to update and modify functionality on a consistent basis for all users of the same type with the goal of ensuring a value-added  and efficient experience for both end users and listed providers.
  2. Payment Terms. All pricing is subject to change upon 60 days’ prior notice, except for any pricing expressly stated as locked-in during any stated term. The amounts payable by you hereunder are exclusive of any applicable sales, use and other taxes. Late payment will accrue interest at the rate of 1.5% per month or the highest rate permitted by law, whichever is lower. You will also incur a late charge of 3% of the monthly payment for each late payment.  Payment is due within 15 days of invoice. Any invoice over 30 days past due may result in suspension of program functionality without any refund due for the remainder of your subscription term.  The Schedule(s) governing pricing will control only to the extent of any direct conflict with this paragraph.
  3. Independent Contractors; Representations/Warranties.  We are independent contracting parties. Each party shall be solely responsible for its (including its owners’, employees’, agents’, affiliates’, subsidiaries’ and parents’) own acts and omissions and breach of this Agreement (including any adverse change in any representation and/or warranty hereunder and compliance with all applicable Federal and State laws and regulations, as well as third party payor (private or governmental) requirements applicable to such party). You represent that the execution of this Agreement has been duly authorized and that you are duly organized and a validly existing entity with such licenses, registration and permits in the states in which you do business and with respect to the state residents you service. 
  4. Termination.  This Agreement commences upon acceptance and may be terminated upon the following events, at the terminating party’s option (and we can suspend access to the Program during the pendency of any cure by you but which will not affect any amounts still owing pursuant to any locked-in term or remaining notice or cure period): (i) the mutual written agreement of the parties; (ii) by us without cause at any time upon sixty (60) days’ prior written notice; (iii) notice of non-renewal by you at least ninety (90) days prior to the expiration of the initial term; (iv) following the expiration of the Initial Term (defined in Schedule 1), thereafter by you without cause at any time upon sixty (60) days’ prior written notice; (v) if you fail to pay the amounts owed hereunder when due; or (vi) if you fail to observe or perform or otherwise breach any of your obligations, covenants or warranties hereunder (including any adverse change in any representation/warranty).  No refund is available for amounts paid-to-date and still accruing, as applicable, through the end of your participation period pursuant to any locked-in term (or remaining notice or cure period if the locked-in term is expired), even if we suspend functionality pending any cure opportunity. 
  5. Confidentiality.  The parties agree to keep the terms of this Agreement strictly confidential, including following termination (other than for internal use and sharing with legal and financial advisors, prospective investors and/or with a potential successor to assets and/or business). This Section 6 survives termination 
  6. Program Ownership.   You acknowledge that our Program whether or not marked as “confidential” is special and unique proprietary assets and trade secrets of ours. You agree that at all times during the term of this Agreement and following its termination you will not, either directly or indirectly, disclose, share, use, reproduce, derive materials from, reverse engineer or in any manner divulge to any person or entity, any such confidential information, except for purposes of use of the Program for the purposes intended while under contract with us. This Agreement merely constitutes a revocable non-exclusive and non-transferable license to use and participate in the Program on the terms and conditions herein, and may not be sub-licensed by you.  If you devise any revisions, enhancements, or improvements in the Program, you will promptly disclose such improvements to us, and such improvements will be our sole property.  You will cause each authorized user of yours accessing the Program to abide by the terms and conditions of this Agreement as if each were a party hereto.  This Section 7 survives termination.
  7. Downtime; Infringement.  We will make commercially reasonable efforts to restore functionality when down time is caused by us, and the Agreement remains subject to the termination rights herein without fee abatement or other offset or penalty, except in the event that LF is unable to re-establish connectivity and bring the Program functionality back online within seventy-two (72) hours at which time all fees will be suspended until such time that Program functionality is re-established.  Our sole responsibility for any allegation of infringement of a third party’s intellectual property shall be to replace the functionality with equivalent functionality so long as we desire to continue to offer same for all such similarly-situated participants.
  8. Promotion. We have the right to issue a press release and conduct marketing/advertising to maximize the success of your participation as possible. Termination of your participation shall not affect publications already disseminated prior to the effective termination date. 
  9. LIMITED WARRANTY.  WE MAKE NO GUARANTY AS TO WHETHER USERS WILL CHOOSE TO SEEK SERVICES WITH YOU OR FIND YOU ON OUR LISTINGS (AND DO NOT GUARANTY LISTING PLACEMENT ORDER) OR WHETHER SEARCH ENGINE PLACEMENT OF OUR WEBSITE OR OTHER PROMOTION WILL RESULT IN THE SELECTION OF YOUR SERVICES. MARKETING, ADVERTISING, PROMOTIONAL OR SALES MATERIALS OR COMMUNICATIONS OF ANY NATURE OUTSIDE OF THIS AGREEMENT DO NOT CONSTITUTE ANY REPRESENTATION OR WARRANTY AND ARE NOT INCORPORATED INTO THIS AGREEMENT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WE UNDERTAKE NO OBLIGATION TO PROVIDE ERROR-FREE OR FAULT-FREE PROGRAM(S), WEBSITE ACTIVITY OR AVAILABILITY, DATA, INFORMATION, ITEMS, SUPPLIES OR EQUIPMENT, AND ALL PROGRAMS, SUPPLIES, ITEMS, SERVICES AND EQUIPMENT PROVIDED OR ARRANGED FOR BY US ARE PROVIDED “AS IS”. WE DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), WITH RESPECT TO ANY PROGRAMS, SUPPLIES, EQUIPMENT, SERVICES OR ITEMS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, TITLE, DESIGN, INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY ARISING FROM CONDUCT, COURSE OF DEALING, CUSTOM, OR USAGE IN TRADE. NOTWITHSTANDING THE FOREGOING, WE REPRESENT AND WARRANT THAT OUR PROGRAM FUNCTIONALITY WILL WORK AS DESCRIBED HEREIN. This Section 10 survives termination.
  10. LIMITATION OF LIABILITY.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, INCURRED BY THE OTHER OR ITS SUCCESSORS, WHETHER IN AN ACTION IN CONTRACT (INCLUDING PURSUANT TO ANY INDEMNITY), TORT OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.  ADDITIONALLY, IN NO EVENT SHALL WE BE LIABLE FOR DAMAGES IN AN AMOUNT MORE THAN THE AMOUNT ACTUALLY PAID BY YOU TO US OVER THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS OF THIS SECTION WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. This Section 11 survives termination.
  11. Non-Disparagement. At all times during the term of this Agreement and following its termination for any reason, the parties agree to not, directly or indirectly, in public or private, whether in oral, written, electronic or other format, disparage, deprecate, impugn or otherwise make any statements or remarks that would tend to or be construed to defame or slander the personal or professional reputations, professional qualifications, services, website/application, Program, functionality and/or business of the other party, including its owner(s), parents, subsidiaries, affiliates and/or its/his/her/their owners, independent contractors, employees, agents, affiliates, subsidiaries, parents and/or successors, nor shall a party in any manner assist or encourage any third party in doing so. This shall not prohibit the making of claims and the enforcement of rights and remedies arising under this Agreement, testifying truthfully under oath; nor shall it prohibit cooperation with investigations or inquiries by governmental authorities. This Section 12 survives termination.
  12. Remedies.  In the event of a breach or threatened breach of any of the covenants herein, in addition to any other rights or remedies which the party may have at law and in equity which shall be cumulative and not alternative, such party shall further be entitled to such equitable and injunctive relief (including a temporary and permanent injunction, without the requirement of the posting a bond or other security) as may be available from a court of competent jurisdiction to restrain the other party (and their respective owners, employees, agents, affiliates, parents and successors) from any violation. This Section 13 survives termination.

Miscellaneous.  We may amend this agreement at any time (except for any stated locked-in pricing), and you will be required to accept or otherwise acknowledge your agreement to the changes in order to maintain your listing/subscription and access to our services. If you fail to acknowledge your acceptance of any such change then your listing will expire immediately at our option and you will not be entitled to any refund for payments accrued to-date. Notices hereunder may be given by e-mail to the registered contact of the party (deemed given immediately), by overnight mail to the party’s last known principal address (deemed delivered the next day), or first class mail to such address (deemed given three days later).  The Agreement is not assignable by you without our written consent, though we may assign this Agreement to any transferee of our business or assets to which this Agreement relates.  If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held to be legally invalid, inoperative or unenforceable, the remainder of this Agreement shall not be affected. Any delay or failure to exercise any remedy or right under this Agreement (whether a default exists or not) shall not be construed as a waiver of such remedy or right, or an acquiescence in such default, nor shall it affect any subsequent default of the same or a different nature. Any reference to termination herein shall similarly apply to expiration, non-renewal or cancellation of a listing or participation. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement is governed by the laws of the State of New York without reference to its conflicts of law provisions. Each party hereby agrees and consents that any legal action or proceedings with respect to this Agreement and Schedules/BAA shall only be brought in the courts of competent jurisdiction in the State of New York in New York County. Each party hereby (i) accepts the jurisdiction of the aforesaid courts; (ii) waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the venue set forth above; and (iii) further waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum, and acknowledges personal jurisdiction in New York. Notwithstanding any other rights a party may have under law or equity, any cause of action you may have arising out of or related to this Agreement must commence within one (1) year after the cause of action arises. The substantially prevailing party in any action arising hereunder shall be entitled to all reasonable expenses incurred, including but not limited to, reasonable attorneys’ fees and court costs incurred in such proceeding, and the reasonable costs of collection on any judgment. This Agreement shall not be modified, except by a writing signed by all of the parties hereto.  All Statements of  Work (SOW), exhibits and Schedules annexed hereto are deemed incorporated herein.