Referral Partner Agreement
This Neurvana Health Referral Partner Agreement (the “Partner Agreement“) is between the applicable Partner (“you” or “Partner“), and Neurvana Health, Inc., with its corporate headquarters at 4039 Brentwood Rd NW, Calgary, Alberta T2L 1L1. If you are agreeing to this Partner Agreement not as an individual but on behalf of your company, then “Partner” or “you” means your company, and you are binding your company to this Partner Agreement.
This Partner Agreement is a separate agreement from the agreement that Neurvana Health has with its end users. For convenience and consistency, however, the definitions of certain terms related to our products and services (namely Functional Medicine, Neurofeedback, QEEG Analysis, and Nutritional Consulting) will be the same as those in the Neurvana Health agreement with it’s end users.
The Agreement shall become binding once Partner clicks through the Agreement in the manner provided by Neurvana Health (the “Effective Date”). Neurvana Health and Partner are sometimes referred to as a “Party”, and together as the “Parties”.
In consideration of the mutual promises and agreements herein contained, the Parties agree as follows:
Subject to this Agreement and its terms, Neurvana Health hereby grants to Partner a free, non-exclusive, non-transferable and revocable license (“License”) to market and distribute the Neurvana Health Solutions to Referrals, and to use the Neurvana Health trademarks, logos and URLs provided by Neurvana Health and listed in Schedule A (“Licensed Marks,” as may be amended by Neurvana Health from time to time), and associated materials, language or code for the sole purpose of promoting the Neurvana Health Solutions (collectively, “Marketing Materials”).
The license to use the Licensed Marks granted herein is subject to Neurvana Health’s Trademark Usage Guidelines (“Guidelines”) (which can be found at https://www.Neurvana Health.com/trademark ), incorporated here by reference, as updated from time to time by Neurvana Health at its sole discretion. Neurvana Health may revoke this license at any time by giving Partner a written notice (including via email). A list of certain Neurvana Health trademarks and logos (“Neurvana Health Marks”) is included in the Guidelines.
2. PROGRAM COMMITMENTS.
The Program. To participate in the Program, Partner must complete the online application for participation in the Program found on Neurvana Health’s website (“Site” or https://www.neurvanahealth.com/partner) and enter this Agreement. Neurvana Health may accept or reject any application at its sole discretion.
2.2 Promotion, Referral Activities. Partner agrees to engage in continued, active promotion of the Neurvana Health Solutions in various marketing channels using the Licensed Marks and Marketing Materials, and to do so in compliance with the terms of this Agreement.
2.3 Prohibited Activities. Partner agrees not to associate Marketing Materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in Neurvana Health’s sole discretion. Partner agrees not to send unsolicited electronic messages to multiple unrelated recipients (“Spamming”) in promoting the Neurvana Health Solutions, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement.
2.4 Permissible Use of Neurvana Health Marks.
2.4 (i) Partner expressly agrees to comply with all the terms herein (particularly Section 5.3) in using the Licensed Marks and in creating Marketing Materials.
2.4 (ii) Through the Guidelines and otherwise, Neurvana Health shall provide specifications and other instructions from time to time as to Partner’s permissible use of the Licensed Marks in creating Marketing Materials and promoting the Neurvana Health Solutions. Partner further agrees to comply with all such specifications and instructions.
2.4 (iii) Partner shall ensure that all Licensed Marks appearing on its Marketing Materials are in the form approved by Neurvana Health in the Guidelines or otherwise, shall not modify any Neurvana Health Marks or otherwise substantially modify other Marketing Materials contrary to reasonable instructions provided by Neurvana Health, and shall further comply with reasonable instructions from Neurvana Health as to the form, content and display of Marketing Materials. Upon termination of this Agreement for any reason whatsoever, or upon written request by Neurvana Health, the license granted herein shall expire and Partner shall immediately cease all its activities under this Agreement.
2.5 Liabilities. Partner shall be solely responsible for its operations in acting under this Agreement, including, without limitation, the legality of Partner’s operations and materials, created and used in connection with this Agreement. Except for a claim alleging that a Neurvana Health Mark violates a third party’s trademark rights, Neurvana Health is not responsible for the development, operation or content of Partner’s Marketing Materials and Partner agrees to defend, indemnify and hold Neurvana Health harmless against any and all claims, actions, causes of action, damages, or expenses (including attorney fees) relating to the development, operation, content and maintenance of Partner’s Marketing Materials.
3. QUALIFIED REFERRALS, COMMISSIONS.
“Qualified Referrals” mean Referrals (a) referred by Partner to Neurvana Health and who complete the sign-up procedure in accordance with the procedure described in Section 3.2 below; (b) of whom Neurvana Health has no record in connection with the Neurvana Health Solutions, or who are not, at the time referred to Neurvana Health by Partner, in any contractual relations or ongoing negotiations with Neurvana Health in connection with the Neurvana Health Solutions; (d) who are not rejected by Neurvana Health, and make at least one payment to receive the Neurvana Health Solutions. All Referrals will be deemed rejected by Neurvana Health if they do not become a Qualified Referral within ninety (90) days of first being submitted to Neurvana Health by Partner. On a case by case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend the ninety (90) day time limit for a particular Referral.
3.1 Referral Procedure. Each Referral shall be referred to Neurvana Health by Partner through a paper form provided by Neurvana Health to Partner by mail which can be re-ordered at https://neurvanahealth.com/referral-refill, which Partner shall fully complete and submit to Neurvana Health (“Referral Form”). Upon receiving each Referral Form, Neurvana Health shall send an email and make a phone call to the Referral’s contact details indicated in the Referral Form, detailing the steps to be taken towards registration to receive the Neurvana Health Solutions and become a Qualified Referral. Neurvana Health shall be responsible for the sales process to all Referrals, subject to the Parties’ continued good-faith cooperation in promoting the sales process to Referral.
Responsibilities. Neurvana Health shall collect all fees from Referrals for the Neurvana Health Solutions directly from Referrals (“Service Fees”).
3.2 (i) Referral Fees. Upon a Referral becoming a Qualified Referral, Neurvana Health shall pay Partner no referral fees.
3.2 (ii) Associated charges. Partner shall be responsible for payment of all taxes, duties, governmental charges, payment processing and other like charges levied on the Referral Fees, and Partner shall indemnify, defend and hold Neurvana Health harmless from and against any claims arising out or relating to all charges emanating from Neurvana Health’s payment of Referral Fees.
4. TERM AND TERMINATION.
Initial Term. This Agreement shall become effective as of the Effective Date and shall continue for twelve (12) months thereafter (“Initial Term”), unless Neurvana Health rejects Partner’s application to participate in the Program.
4.1 Renewal Term. Following expiration of the Initial Term, this Agreement will be automatically renewed for additional consecutive terms of twelve (12) months (each, a “Renewal Term”), unless a Party gives written notice of termination to the other Party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.
4.2 Early Termination.
4.2 (i) Without Cause. Neurvana Health shall have the right to terminate this Agreement at any time for any or no reason by giving ten (10) days’ prior written notice to Partner.
4.2 (ii) For Cause. Either Party may terminate this Agreement at any time, effective immediately upon written notice to the other Party who has materially breached this Agreement, provided that prior to terminating this Agreement the terminating Party shall provide written notice of such material breach and thirty (30) days’ opportunity for the breaching Party to cure such breach.
4.3 Effect of Termination. From and following the date of termination of this Agreement Partner’s rights under this Agreement shall terminate, and Partner shall not be entitled to receive any Referral Fees or any other payments under this Agreement other than commissions or payments earned or accrued prior to termination of this Agreement.
Modification of Agreement. Neurvana Health may modify this Agreement from time-to-time at its reasonable discretion by posting a change on the Site or notifying Partner via email. If Partner objects to any such change, Partner may terminate this Agreement for cause. Partner’s continued participation in the Program following receipt of notice about changes to this Agreement shall constitute binding acceptance of this Agreement as amended.
5.1 Assignment. Neurvana Health may assign this Agreement at any time. Partner may not assign or transfer this Agreement without Neurvana Health’s prior written consent, such consent not to be unreasonably withheld.
5.2 Intellectual Property Rights. All intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) in Neurvana Health Marks, the Neurvana Health Solutions and related content and technology around the world (“Neurvana Health IP Rights”) are and will remain the exclusive property of Neurvana Health and its subsidiary companies. The License granted by Neurvana Health to Partner under Section 1 of the Business Terms is granted solely under the terms of this Agreement and in furtherance of its objectives. Partner’s right to use the Licensed Marks is at the discretion of Neurvana Health and is subject to Partner’s compliance with the terms of this Agreement, Guidelines, and with all applicable laws and regulations. Partner agrees to (a) not use any Neurvana Health IP Rights in any manner reasonably likely to breach this Agreement; (b) not do anything contesting or impairing any Neurvana Health IP Rights; (c) not create or obtain any intellectual property rights (such as but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) that are substantially similar to any Neurvana Health IP Rights; (d) promptly notify Neurvana Health of any unauthorized use of any Neurvana Health IP Rights of which Partner has actual knowledge; and (e) always use the Licensed Marks and any other Neurvana Health Marks in compliance with the Guidelines. Neurvana Health may perform periodic reviews of any Marketing Materials presented by Partner, and shall have the exclusive authority and discretion to order the removal and/or amendment of any Marketing Materials presented by Partner.
5.3 No Waiver. Either Party’s failure to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of the first Party’s right to subsequently enforce such provision or any other provision of this Agreement.
5.5 Disclaimer of Warranty. Other than Neurvana Health’s express warranty under the previous subsection 5.5, Neurvana Health makes no other warranty, express or implied, of any kind and Neurvana Health expressly disclaims any and all warranties and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, security, title, and/or non-infringement of the subject matter of this Agreement.
5.6 LIMITATION OF LIABILITY. NEITHER NEURVANA HEALTH NOR ANY OFFICER, EMPLOYEE, DIRECTOR OR ANY OTHER REPRESENTATIVE OF NEURVANA HEALTH SHALL BE LIABLE TOWARDS PARTNER OR TOWARDS ANY THIRD PARTY, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS TERMINATION, IN CONTRACT, PRE-CONTRACT, TORT OR OTHERWISE FOR (A) ANY ECONOMIC LOSS (INCLUDING LOSS OF REVENUES, PROFITS, CONTRACTS, BUSINESS OR ANTICIPATED SAVINGS) OR (B) ANY LOSS OF GOODWILL OR REPUTATION. SUCH LOSSES INCLUDE, WITHOUT LIMITATION, ANY SPECIAL, INDIRECT, INCIDENTAL, STATUTORY, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES AS WELL AS ANY LOSSES OR DAMAGES CAUSED BY INTERRUPTION OF OPERATIONS. NOTWITHSTANDING ANY OTHER CIRCUMSTANCES OR UNDERSTANDINGS SURROUNDING ANY RELATIONS AMONG THE PARTIES, NEURVANA HEALTH’S ENTIRE LIABILITY TO PARTNER UNDER THIS AGREEMENT SHALL NOT EXCEED $100 CAD. FOR ANY AND ALL CLAIMS FOR DAMAGES OF ANY KIND MADE BY PARTNER UNDER THIS AGREEMENT, AND BY ENTERING THIS AGREEMENT PARTNER RECOGNIZES THE LIMITATIONS HEREIN ON NEURVANA HEALTH’S LIABILITY.
5.6 Independent Contractors. The Parties herein act on their own behalf as independent contractors. Nothing in this Agreement shall create any joint venture, agency, franchise, sales representative, employment or any other relationship between the Parties beyond the relations set out in this Agreement, and Partner is expressly precluded from acting on Neurvana Health’s behalf. Partner’s display of Licensed Marks under this Agreement, other content presented by Partner, or contact among Partner and third parties shall not misrepresent the relations described herein.
5.7 Indemnification. Partner will indemnify, defend and hold Neurvana Health and its subsidiaries, affiliates, contractors, officers and employees (the “Neurvana Health Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the Neurvana Health Indemnified Parties arising from any of the following: (a) a breach of the Agreement by Partner; (b) the negligence, gross negligence or willful misconduct of Partner or its employees, agents or contractors; or (c) a failure by Partner or its employees, agents, contractors or invitees to comply with the laws and regulations referenced hereinbefore.
5.8 Confidential Information and Prohibition on Raiding. Each of the Parties guarantees that all information of a confidential nature received from the other Party before, during and after the conclusion of the Agreement shall remain confidential. Information shall in any event be considered confidential if related to pricing, discounts, Referrals’ information or if designated as confidential by either of the Parties. Neither Party shall for the duration of this Agreement and for two (2) years after termination thereof hire, employ or solicit any employee of the other Party, or have such employee work for such Party either directly or indirectly.
5.9 Force Majeure. A Party shall not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of force majeure. “Force majeure” events shall include events beyond the reasonable control of the Parties, including acts of God, acts of government, acts of nature, strikes or riots, as well as improper performance by Neurvana Health’s suppliers or defects in objects, materials or software of third parties. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party.
5.10 Entire Agreement; Severability. This Agreement represents the entire agreement among the Parties regarding the subject matter thereof and the Parties’ respective obligations and commitments herein. No other documents, or oral or written agreements among the Parties reflect in any way on the agreements laid out in this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
5.11 Anti-Bribery and Export Compliance. Partner agrees not to promote, approach or submit Referrals, or use distribute, transfer, provide, sub-license, share with, or otherwise offer the Solutions in violation of any Laws or this Agreement.
5.12 Non-Disparagement. During the Term and for five (5) years thereafter, Partner agrees that it will not disparage Neurvana Health or any of its officers, directors or employees or otherwise take any action that could reasonably be expected to adversely affect Neurvana Health’s reputation. For purposes of this Agreement, “disparage” shall mean any negative statement, whether written or oral, about Neurvana Health or any of its officers, directors, contractors or employees. The Parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in the Neurvana Health refusing to enter into this Agreement.
5.13 Parties’ Expenses. The Parties shall each carry and pay all their respective costs, charges and expenses incurred by it in the performance of this Agreement, except as otherwise may be agreed-upon by the Parties in writing in advance.
5.14 Notices. All notices relating to this Agreement shall be delivered via email (with return receipt) or mail to the addresses detailed in the Sign-up Page.
5.15 Governing Law; Jurisdiction; Dispute Resolutions. This Agreement shall be governed by the laws of the Province of Alberta, Canada, without giving effect to any principles of conflicts of law. Jurisdiction shall lie exclusively in the District Courts of Calgary, Alberta. The sole and exclusive jurisdiction and venue for any litigation arising out of this Agreement shall be an appropriate federal or state court located in the Province of Alberta, and the Parties agree not to raise, and hereby waive, any objections or defenses based upon venue or forum non conveniens. Prior to initiating any legal action arising under or relating to this Agreement, a Party shall provide the other Party written notice of a dispute and the Parties shall actively and in good faith negotiate with a view to speedy resolutions of such dispute within thirty (30) business days of the receipt of such notice.
Permitted Neurvana Health marks for use by Partner
Logos: Licensed Marks to be provided to Partner by Neurvana Health.