TERMS OF SERVICE

1.         Retention of Welnys.  Company hereby retains Welnys and Welnys hereby agrees to provide the services (“Services”) described in Exhibit A to this Agreement upon the terms and conditions set forth herein.  Welnys may provide additional services to Company not described herein, but Welnys shall not be obligated to provide any such services unless the nature and terms of such services and the compensation to be provided are mutually agreed upon in writing prior to the commencement of such services.

2.         Compensation.  The fees and schedule of payments for the Services which Welnys is obligated to perform under this Agreement are set forth on Exhibit B

3.         Late Payment.  Any failure by Company to pay Welnys according to the terms of this Agreement shall entitle Welnys, without prejudice to its other rights and remedies under this Agreement, to: (i) charge interest on a daily basis from the original due date at the rate of 1.5% per month; (ii) suspend the provision of Services; and (iii) seek reimbursement for all reasonable costs incurred by Welnys in collecting past due amounts.

4.         Warranty Disclaimer.  WELNYS SPECIFICALLY DISCLAIMS WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM TRADE USAGE OR COURSE OF CONDUCT, ANY AND ALL WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE SERVICES PROVIDED HEREUNDER.

5.         Limitation of Liability.  in no event shall WELNYS be liable to COMPANY for any lost profits or special, incidental, punitive or consequential damages (however arising, including negligence) arising out of or in connection with this Agreement; AND IN NO EVENT SHALL WELNYS’ AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO WELNYS BY COMPANY.

6.         Term of Agreement and Termination.  The term of this Agreement shall commence on the Effective Date and shall expire on the completion of the Service by Welnys unless terminated sooner in accordance with the terms and conditions set forth herein.  At any time during the term hereof, Welnys may terminate this Agreement or a One-Time Service (as defined in Exhibit A) and/or Assignment (as defined in Exhibit A) by providing Company with reasonable advance written notice of its intention.  In the case where Welnys terminates this Agreement, the Company shall pay Welnys the Welnys’ fees and expenses that have accrued until the date of termination.  Those provisions that by their nature survive shall survive the termination of this Agreement.  Company and/or Welnys may reschedule any Service by providing the other with reasonable advance written notice of such party’s request to reschedule. Company may terminate this Agreement with no penalty by providing Welnys written notice of its intention to terminate this Agreement within sixty (60) days of the date of the first Service arranged by Welnys for Company.

7.         Confidential Information. The parties recognize that, in the course of their dealings, each may come into possession of information relating to the business of the other which is not generally known in the industry, which reasonably or logically may be considered to be confidential or proprietary and which might reasonably be expected to do harm to the other if divulged (“Confidential Information”).  Each agrees to keep it confidential and not to disclose it, in whole or in part, to any third persons whatsoever, nor even to any of its own employees except those having a “need to know,” and otherwise to protect the confidentiality of such Confidential Information in accordance with reasonable industry practices. Confidential Information of a party shall no longer be subject to the foregoing restrictions (a) if it is or becomes available to the public through no fault of the other party, (b) if it is otherwise known to the other party as shown by written records of the other party at the time of disclosure of the Confidential Information, (c) if, subsequent to disclosure hereunder, it is obtained by the other party on a non-confidential basis from a third party who has the right to disclose such information or (d) if it is required to be disclosed pursuant to a court order, so long as the nondisclosing party is given adequate notice and the ability to challenge the required disclosure.  Confidential Information will include the terms and conditions of this Agreement.

8.         Non-Competition.  During the term hereof and for a period of twelve (12) months thereafter, Company agrees that Company will not, directly or indirectly, on Company’s own behalf, or as a partner, member, stockholder, principal, agent, vendor, or in any other capacity, without the prior written consent of Welnys, (i) hire or solicit any employee, sales representative, service provider or independent contractor of Welnys to perform services similar to those Services being provided hereunder by Welnys; (ii) cause or induce any employee, sales representative, service provider or independent contractor of Welnys to terminate their relationship or employment with Welnys and/or (iii) suggest to, attempt to persuade, solicit, cause or induce any customer of Welnys not to do business with Welnys, or to do business with any person, firm, corporation, partnership, limited liability company, association or entity other than Welnys.

9.         Indemnification.  Company hereby agrees to defend, indemnify and hold harmless Welnys, its directors, officers, employees, agents, and any assignee from and against any and 1all losses, damages, injuries, claims, suits, demands, judgments, decrees, losses, costs, expenses and liabilities, including, but not limited to, attorney’s fees and court costs asserted against, imposed upon or incurred by Welnys arising from Welnys Services, the performance of the Services by Welnys and/or this Agreement.

10.       Miscellaneous.

            (a)        This Agreement constitutes the entire agreement between the parties, superseding all prior agreements, either oral or written.  This Agreement may not be amended or any provision hereof waived except by a document signed by both parties hereto. 

            (b)       This Agreement shall be deemed to be made in and shall be governed and construed in accordance with the laws of the State of Delaware, without regard to conflict of law rules.  The parties mutually consent and submit to the exclusive jurisdiction of the federal and state courts of the State of Delaware. 

            (c)        Any notice given under this Agreement shall be given when delivered in person or by registered or certified mail, postage prepaid, return receipt requested or by other delivery service (including, but not limited to, electronic mail) providing evidence of receipt to the party to whom such notice is to be given at the address set forth above or at such other address as either party shall hereafter give notice of to the other in writing. 

            (d)       This Agreement or any of the parties’ respective rights or obligations hereunder may not be assigned or transferred, directly or indirectly, by operation of law or otherwise, by Company without the prior written consent of Welnys.  Notwithstanding anything in this Agreement to the contrary, Welnys may in its sole discretion and without obtaining prior written consent from Company assign this Agreement or any of its rights or obligations hereunder.

            (e)        In rendering services hereunder, Welnys is acting solely as an independent contractor and not as an agent, employee or partner of Company for any purpose.  Welnys has no authority to bind Company in any contractual manner or to represent to others than the relationship between Company and Welnys is other than stated herein. 

            (f)        Welnys may reference Company as a customer on its website, in marketing materials and in private oral conversations with existing or prospective customers.  At any time, Company may reasonably withdraw its consent with respect to Welnys’ use of the Company’s name and logo on its website and published marketing materials.

Exhibit A

 

Scope of Services

 Welnys shall provide to Company yoga, massage, personal training and other similar services pursuant to this Agreement.  In addition, Welnys will identify whether the Services are a One-Time Service or an Assignment.

 For the purposes of this Agreement, a “One-Time Service” is when the Welnys provides Services for Company for a one time fixed amount of time.

For the purposes of this Agreement, an “Assignment” is when Welnys agrees to provide Services to Company on more than one occasion, such as five (5) sessions of yoga in a month. 

Exhibit B

Fees

All fees shall be paid in the following manner (“Service Fee”):

Welnys will bill monthly for the services that are to be performed in that month. Unless otherwise set forth herein, 100% of Service Fee payment and reimbursement of expenses shall be due within thirty (30) business days upon invoice from Welnys whether a One-Time Service or an Assignment.