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LA DOLCE LIVING - www.ladolceliving.com
CLIENT SERVICES AGREEMENT THIS CLIENT SERVICES AGREEMENT (this "Agreement") is by and between LA DOLCE LIVING, INC., a Delaware corporation ("LDL"), with offices at 27762 Antonio Parkway, Suite L1-421, Ladera Ranch, CA 92694, and its Client ("Client"). 1. SERVICES1.1 Web Site. LDL has developed a web site as a resource for Clients to promote housing, in-home care, financial, travel, medical and other products or services and for users ("Users") to locate senior care facilities, products and services designed for adults, and adult caregiving services, which web site is currently located at the following Uniform Resource Locator ("URL"): http://www.ladolceliving.com, or any new URL with which LDL replaces the above stated URL ("Web Site"). 1.2 Client Listing. Client shall be entitled to a listing ("Listing") on the Web Site, which shall consist of a detailed description of the facilities, products, or services offered to Users, and which shall be available to Users who search the Web Site for the facilities, products, or services offered by Client. Client shall be responsible for determining whether Client’s facilities, products, or services are appropriate for particular Users. All content included in a Listing shall be subject to approval and LDL reserves the right to reject or cancel any advertisement or position commitment at any time. 1.3 Non-Endorsement. LDL or the Web Site does not recommend or endorse Client facilities, products, or services. Each Client’s Listing is made available on the Web Site as a reference and information source only. 1.4 Handling of Leads. Leads shall remain a free service provided by LDL throughout the term of this agreement only for platinum members. In accordance under section 1.3, LDL will provide Users with only the contact information of five (5) "Platinum-Member" Clients that are within the scope of the User’s request and within closest proximity to the User. 1.5 Rating. LDL provides a platform for Users to rate and comment on Client’s facilities, products, or services purchased directly from Client. Client understands that any rating or comment is solely based on the opinion of the User and that LDL does not rate or comment on Client’s facilities, products, or services. Client agrees that they will not directly influence User’s opinion, rating or comments by forcing, harassing or compensating User and acknowledges any action aforementioned action is a violation of this contract and will be grounds for immediate termination by LDL. 1.6 Governing Laws and Licensing. If applicable to Client’s industry, Client agrees that their facility, products or services, shall be in compliance with any governing local, state or federal laws and licensing regulatory organizations. Should Client fail to be in compliance, Client agrees to notify LDL within five (5) business days. For any licensing compliance failure, LDL reserves the right to suspend this agreement and remove the details and information shown or listed on the Web Site or any other material belonging to LDL. Should Client’s facility, products or services status revert back to current or good standing, Client will notify LDL with proper evidence. This Agreement will then resume and any Client information will be listed and displayed on the Web Site. 1.7 Format. Client's Listing will be promoted through the Web Site in a standard proprietary format designed by LDL based upon information provided by Client. Client shall have the ability to promote the important features and benefits of its facilities, products, and services, including accommodation types, room types, levels of care, amenities, specialties, and other pertinent information. 1.8 Term of Contract. This contract shall commence on the date of this Agreement and continue for a period of one (1) month or year, whichever term is selected by Client on the LDL order form ("Order Form"). At the end of the initial term and each succeeding term, this Agreement shall automatically renew for an additional period of one (1) month or year unless Client or LDL has given written notice no less than thirty (30) days prior to the end of the current term that it intends to terminate this Agreement at the end of the current term. As used in this Agreement, the "current term" refers to one (1) month or year period during which services are currently being provided by LDL to Client. 1.9 Client Representative. Client shall designate a representative who is authorized to create, update, modify, or delete Client’s Listing, elect optional services provided by LDL, authorize payment and create and manage other Users within the Client’s company. Client warrants that all information included in Client’s Listing is current and agrees to modify the Listing within five (5) days of any changes to rates or services described in the Listing. 2. FEES AND PAYMENT 2.1 Client Fees. Client shall pay to LDL a fee to be billed in accordance with LDL’s published schedule of rates located on the LDL order form ("Order Form"). Client’s Listing shall remain on the Web Site until this Agreement is terminated. Terms, conditions, and rates are subject to change upon written notice to Client not less than thirty (30) days prior to the end of the current term, which new terms, conditions and rates will become effective upon renewal of the current term. 2.2 Taxes. In addition to the fees due located on the Order Form, Client shall pay any and all applicable federal or state taxes of any nature that may be assessed on the services being rendered by LDL, except that taxes on LDL's income shall be the sole responsibility of LDL. 2.3 Payments. Suitable forms of payment shall be Visa, Mastercard, Debit Card or check. All payments made pursuant to this Agreement shall be made in advance of services rendered on the payment due date ("Payment Due Date") and Client's Listing details will display on the Web Site once payment has been received. Payment shall be made in U.S. Dollars and due each month (or each year if indicated by Client on the Order Form) from the date of this fully executed agreement. 2.4 Invoice Reminders. Invoice reminders will be sent out ten (10) days prior to the Payment Due Date electronically via email to the email account designated by the Client Representative. 2.5 Auto Payment. Client acknowledges and agrees that the Credit Card or Check information on file will be automatically billed on a recurring monthly basis (or each year if indicated by Client on the Order Form) and deducted on the Payment Due Date. 2.6 Optional "A La Carte" Upgrades. Client understands and agrees that all optional upgrade features offered by LDL have additional costs, such as customized website, additional photos, virtual tour, highlighted facility, brochure upload and site sponsorship. Client also agrees that these aforementioned optional features are non-refundable and nontransferable and must be paid for in advance before LDL displays them in the Client’s Listing. 2.7 Late Payments. If credit card on record is invalid and payment is not received within ten (10) days from the date of invoice, Client will be in violation of agreement and all Client information hosted, displayed or listed on the Web Site will be suspended and removed until the outstanding balance has been paid in full and received. Should Client elect to reactivate the Listing, a reactivation fee of $25.00 shall be added to the outstanding balance owed to LDL. 2.8 Disputes. Client agrees to contact LDL customer service at 949.287.4600 for any billing questions and other billing-related issues prior to contacting the credit card companies for any refunds. 3. OWNERSHIP AND LICENSE RIGHTS 3.1 Property Rights and Ownership. The Web Site is the property of LDL. Client gives LDL perpetual right to use Client’s Listing. All materials included in Client’s Listing (including content, photographs, and other materials) and may be used by LDL in its discretion for marketing and advertising purposes. Client also acknowledges and agrees that LDL may share the Client’s Listing and all materials included, with other third-parties within LDL’s strategic alliance network for the purpose of additional exposure and marketing opportunities for Client and LDL. 3.2 Client’s Property. For purposes of this provision, the term "property" refers to ownership of all intellectual property rights including, but not limited to, all patent, copyright, trade secret and trademark rights, as applicable. Client gives LDL the perpetual and transferable right to use the property for LDL’s marketing and advertising campaigns. 3.3 License. During the term of this Agreement, Client grants to LDL a license to use Client’s Listing on the Web Site. Client, at its own cost and expense, shall defend LDL and its officers and directors, against a claim that the Client Listing infringes a third-party United States copyright or trade secret, and shall pay any settlements entered into or damages awarded against LDL, or its officers and directors. LDL reserves the right to remove Client’s Listing upon any request that LDL cease and desist inclusion of the Listing on the Web Site due to claims of infringement as described in this section. 4. LIMITATIONS ON LIABILITY 4.1 Indemnification. Client agrees to indemnify, defend and hold harmless LDL against any and all expenses, damages and losses of any kind (including reasonable legal fees and costs) incurred by LDL in connection with any claims, actual or threatened, of any kind (including, without limitation, breach of contract, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, false or misleading advertising or sales practices) arising from the Client’s Listing, and all materials included in Client’s Listing (including content, photographs, and other materials). 4.2 Liability. The maximum liability of LDL, its directors, officers, parent company, and affiliates, to Client for damages for any and all other causes whatsoever (including damages relating to LDL’s failure to perform services hereunder), and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to an amount equal to the total fees paid by Client to LDL during the current term. In no event shall LDL, its directors, officers, parent company, and affiliates, licensors, and suppliers, be liable for any lost content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the services provided under this Agreement. 5. TERMINATION 5.1 Termination for Cause. This Agreement may be terminated by either party in the event of (i) any material default in, or material breach of, any of the terms and conditions of this Agreement by the other party, which default continues in effect after the defaulting party has been provided with written notice of default and fifteen (15) days to cure such default; (ii) the commencement of a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to either party of its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect, that authorizes the reorganization or liquidation of such party or its debt or the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property; (iii) either party’s consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it; or (iv) either party’s making a general assignment for the benefit of creditors; or either party's becoming insolvent; or either party taking any corporate action to authorize any of the foregoing. In addition, LDL may terminate this Agreement, at its option, if Client fails to maintain any lease, license or other right required by law for it to offer the facilities, products, or services being promoted through the Web Site. Failure of Client to make payment within ten (10) days of the Payment Due Date shall be considered a material default under this Agreement. 5.2 Termination for Other Reasons. LDL reserves the right to terminate this Agreement for any failure by Client to satisfy certain requirements and performance criteria, as determined solely in the discretion of LDL. In evaluating whether to terminate this Agreement under this provision, LDL shall consider complaints made known to LDL about Client, claims asserted against Client by persons with business dealings with Client, overall reputation within the community, and any other information or circumstances deemed relevant by LDL. 5.3 Effect of Termination. If this Agreement is terminated by Client under section 5.1 or by LDL under section 5.2, LDL shall promptly remove Client’s Listing from the Web Site and refund to Client the prorated portion of any unearned fees paid by Client within thirty (30) days (i.e., prepaid fees for listing(s) after the date of termination.) If the Agreement is terminated by LDL under section 5.1, LDL shall promptly remove Client’s Listing from the Web Site and Client shall be responsible for all payments that would be due through the end of the current term. Upon termination of this Agreement at the end of the current term without renewal, LDL shall promptly remove Client’s Listing from the Web Site. LDL shall have no obligation to return any information removed from the Web Site relating to Client’s Listing. 6. CONFIDENTIALITY 6.1 Confidential Information. Each party acknowledges that, in connection with the performance of this Agreement, it may receive certain confidential or proprietary information and materials (including this Agreement) of the other party (“Confidential Information”). 6.2 Confidentiality. Each party hereby agrees: (i) to hold and maintain in strict confidence all Confidential Information of the other party including, but not limited to registration forms, agreements, product and service offerings, marketing materials and not to disclose it to any third party; and (ii) not to use any Confidential Information of the other party except as permitted by this Agreement or as may be necessary to perform its obligations under this Agreement. Each party will use at least the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like importance, and in no event shall such degree of care be less than reasonable care. 6.3 Exceptions. Notwithstanding the foregoing, the parties agree that Confidential Information will not include any information that: (i) is or becomes generally known or is or becomes part of the public domain through no fault of the other party, (ii) is authorized for disclosure by the other party, including information to be included in the Client Listing; (iii) is rightfully received by the other party from a third party without restriction on disclosure and without breach of this Agreement; or (iv) is known to the other party on the Effective Date from a source other than the first party, and not subject to a confidentiality obligation. 6.4 Injunctive Relief. Each party acknowledges that any breach of the provisions of this Section 6 may cause irreparable harm and significant injury to an extent that may be extremely difficult to ascertain. Accordingly, each party agrees that the other party will have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief to enjoin any breach or violation of this Section 10. 7. GENERAL PROVISIONS 7.1 Force Majeure. In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of any event beyond the control of the affected party including, but not limited to, natural disaster, acts of God, actions or decrees of governmental bodies or failure of communication lines (a “Force Majeure Event”), the party who has been so affected shall promptly give written notice to the other party and shall use its best efforts to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended for the duration of such Force Majeure Event. 7.2 Notice. The notices will be in writing and emailed to the email account designated by the Client Representative, or to such other notice addresses as the other party has provided by written notice. All notices, demands, requests or other communications required or permitted under this Agreement will be deemed given when (i) delivered personally; (ii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, emailed, faxed; or (iii) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. 7.3 Waiver. Waiver of any breach or failure to enforce any term of this Agreement shall not be deemed a waiver of any breach or right to enforce which may thereafter occur. No waiver shall be valid against any party hereto unless made in writing and signed by the party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein. 7.4 Severability. In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the parties will substitute a new enforceable provision of like economic intent and effect. 7.5 Governing Law. This Agreement, the rights and obligations of the parties hereto, and any claims or disputes thereto, shall be governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. All forms of this Agreement shall be enforceable and binding including, but not limited to, electronic via the LDL website, email, scan, fax, mail and in person. 7.6 Assignment. Neither party shall have the right to assign this Agreement without the prior written consent of the other party; provided, that either party shall have the right to assign this Agreement to any person or entity that acquires or succeeds to all or substantially all of such party’s business or assets upon written notice to the other party. 7.7 Publicity. Neither party will use the other party’s name, domain name, logo, trademark or service mark in advertising or publicity without obtaining the other party’s prior written consent; provided, however, that LDL shall have the nonexclusive right and license to use any information submitted by Client to be included in its Listing. |
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