Neuro Therapy Network Area Developer License
 
ALL FIELDS MUST BE COMPLETED
Today's Date (mm-dd-yyyy)
Sales Person (required):
Full Business Name:
Email Address:
Business Street Address:
City:
State:
Zip Code:
Country:
Business Phone:
Fax:
Licensee Full Name:
Licensee SS# (required):
Email Address:
Home Street Address:
City:
State:
Zip Code:
Home Phone:
Cell Phone:
License Start Date:
License End Date:
Notes:
DEPOSIT REQUIRED:
NOTE: Deposit required of $10,000 to secure territory.
TERRITORY:
Exclusive Territory
CHECKING ACCOUNT INFORMATION:
Your Banks Name or Depository Institution:
ABA Routing Number:
Account Number:
CREDIT CARD INFORMATION:
Credit Card #:
Exp Date:
Sec #:
The Actual Name Shown On Your Credit Card Account:
Billing Address:
SYSTEM LICENSE
THIS AREA DEVELOPMENT AGREEMENT (the “Agreement”) is made effective as of this date, by and between ARP Wave, LLC, a Minnesota limited liability company whose principal place of business is located at 7721 145th Street West, Apple Valley, MN 55124-7516 (“ARP”) and you (“Developer”).
RECITALS:
A. ARP Wave, LLC, is a Minnesota limited liability company engaged in the business of providing Neuro Therapy - Neuro Recovery Treatment Systems (hereinafter the “System(s)”) and related services to health care providers and the public at large. Neuro Therapy - Neuro Recovery is a unique and patented treatment process which treats the neurological origin of physiological symptoms. ARP grants the right to third parties to act as independent representatives of the System(s), with the right to market and promote the System(s) in a designated territory for license by ARP to End Users.
B. Developer desires to obtain the right to act as an independent representative of the System(s), with the right to market and promote the System(s) in a designated territory for license by ARP to End Users.
C. On the terms and subject to the conditions set forth herein and the attached, ARP desires to appoint Developer as an independent, authorized representative of the System(s) in the geographic area identified in Paragraph 1.03 below ("Territory"), and Developer hereby accepts such appointment, under which appointment Developer may market and promote the System(s) for license by ARP to End Users.
D. For purposes of this Agreement, "End User" means a person or entity that desires to acquire the System(s) for his or its own use, rather than for release, relicense, resale, or redistribution of the System(s). All rights not specifically granted by ARP hereunder are reserved by ARP.
E. ARP reserves the right to advertise, promote, market and distribute the System(s), and to appoint third parties to advertise, promote, market and distribute the System(s) worldwide. Further, ARP reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the System(s), or to discontinue the publication, sale, lease or licensing of any or all of the System(s) without liability of any kind.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing Recitals, which by reference are incorporated into this Agreement, the mutual promises of the parties hereto, the mutual benefits to be gained by the performance hereof, and for other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, ARP and Developer hereby agree as follows:
1.01 Appointment and Acceptance. Upon the execution of this Agreement ARP shall appoint Developer as its exclusive representative to market and promote the System(s) for license
by ARP to End Users in the “Territory” during the “Term”, as defined below and Developer hereby accepts such appointment. Developer may not directly or indirectly license, or offer to relicense, any of the ARP System(s) to an End User. All End User license agreements for the System(s) will be entered into contractually by ARP, directly with the End User.
1.02 System(s) Defined. The Neuro Therapy - Neuro Recovery Treatment System(s) consist of a ARP RX 100 Electronic Muscle Stimulation Device and or or a PRS Electronic Muscle Stimulation Device, and are combined with relevant and related ARP Protocols and Programs that treat the neurological origin of physiological symptoms (including all modifications, new versions or replacements thereof), as well as any accessories intended for use with the System(s). It is agreed that the System(s) may be amended from time to time by ARP to (i) add any new System(s) developed or licensed by ARP, (ii) add any new and improved versions of existing System(s) developed by ARP, and (iii) delete any discontinued System(s). The System also includes new protocols and programs developed, marketed or otherwise released by ARP which are not currently available to the market.
1.03 Exclusive Territory Defined. The Territory is defined to be The Territory is deemed to be exclusive to Developer hereunder during the Term of this Agreement, as long as Developer maintains ARP minimum sales requirements for securing Medical Providers to join the ARPwave Neuro Therapy - Neuro Recovery Network. Developer shall be required to secure one Medical Provider in the first yearly quarter after the effective day of this Agreement. Developer shall be required to secure three Medical Providers in each yearly quarter after the first quarter following the effective day of this Agreement. Developer shall be required to secure ten Medical Providers in each year after the effective day of this Agreement, until the Territory reaches capacity. If Developer fails to maintain the ARP quotas set forth in this paragraph, the Territory defined herein shall be deemed and become “non-exclusive” at the option of ARP, and may be granted to other third party area developers or representatives.
Additionally, for geographical areas outside the defined Territory, ARP grants to Developer the nonexclusive right to solicit orders for the System(s) from End Users in those geographical areas so long as they that have not been designated as “Exclusive Territories” by ARP and granted to other representatives and developers of ARP.
2. COMPENSATION AND TERMS
2.01 Compensation. ARP and Developer shall be compensated for Neuro Therapy - Neuro Recovery Treatment Systems licensed, sold or provided to an End User, as agreed to by the parties and as set forth on Schedule A.
2.02 Retail Price And Changes. ARP shall provide Developer with a retail list price under Schedule B for purposes of promoting the System(s) to End Users. ARP may change existing retail list prices as it may deem appropriate and shall provide notice of the changes to Developer.
2.03 License Prices. Developer may market and promote the System(s) in the Territory for license by ARP to End Users, only at the retail price levels designated by ARP and as set forth on Schedule B or amendments thereto. Notwithstanding the foregoing, ARP hereby agrees that it
shall not change the suggested selling prices without at least 60 days prior written notice to Developer.
2.04 Orders And Delivery. Developer shall assist End User in completing the license and related documentation available online at ARPWAVE.COM and will forward all necessary documentation to ARP along with payment information and delivery instructions. Orders shall be shipped F.O.B. ARP warehouse. All freight, insurance, duty and taxes applicable to the license of ARP System(s) shall be paid by Developer, except as otherwise provided in this Agreement. Developer shall submit to ARP an executed copy of the End User Lease and Protocol License Agreement (System(s) License) in the form available on the ARP Wave website. Developer shall comply with the following process for Ordering System(s) from ARP destined for End Users at a Medical Provider location or related to a Provider patient referral:
a. Powered Muscle Stimulators regulated under 21 CFR 890.5850 are regarded as prescription devices. Federal law restricts the ARP RX 100 device to sale or lease by or on the order of a practitioner licensed by the law of the State in which he or it practices to use or order the use of the device. Before executing any licenses for the System(s) with End Users, Developer must insure that a prescription for the System(s) is issued by a licensed practitioner.
3. DEVELOPER’S DUTIES
3.01 Developer's Efforts. Developer shall use commercially reasonable efforts to promote the license of ARP System(s) in the Territory. Developer shall not knowingly detract from the good name of ARP or the reputation of its System(s), and shall at all times comply with the terms and conditions of this Agreement and with other agreements with ARP executed in connection herewith.
3.02 Enforcement of the System(s) License Agreement. Developer shall notify ARP immediately in writing of any known breach by the End User of the System(s) License Agreement in force between ARP and an End User.
3.03 Training and Sales Force. Developer shall be responsible for training its personnel who promote the System(s) so that they are knowledgeable about and can adequately represent the System(s). Developer shall insure that all personnel execute a Confidentiality, Non-Compete And Non-Solicitation Agreement a copy of which is attached as Schedule C, hereto.
3.04 Developer's Expenses. All costs and expenses, including but not limited to salaries, commissions, bonuses, contributions to social security or other welfare system payments, taxes, benefits, severance pay and other expenses incurred by Developer in connection with its performance of this Agreement shall be borne solely by Developer.
3.05 Medical Provider Recruitment. Developer shall market to and recruit Medical Providers to join the ARPwave Neuro Therapy - Neuro Recovery Network. Developer will deliver to Medical Provider offices that have joined the network, Neuro Therapy - Neuro Recovery equipment, Neuro Therapy - Neuro Recovery protocols and related business services, as are necessary and appropriate for the day-to-day implementation of Neuro Therapy - Neuro Recovery
Treatment Systems to patients of the Medical Provider. Developer shall be responsible for the following services rendered to in network Medical Providers (hereinafter “Provider”):
(a) To supply the Provider with a trained Neuro Therapist (who has completed the ARP Neuro Therapy - Neuro Recovery training program) to render Neuro Therapy - Neuro Recovery protocols and related business services at the Provider location;
(b) To supply Provider with ARPwave Neuro Therapy - Neuro Recovery Treatment Systems comprised of Equipment and Proprietary Protocols, and help conduct specific Neuro Therapy - Neuro Recovery treatment directed at the particular aspects of the Provider’s practice;
(c) To hold seminars to promote a free ARPwave Neuro Therapy evaluation and equipment demonstration to attendees.
(d) To coordinate a joint marketing program to patients for a complimentary Neuro Therapy Session or seminar invitation.
(e) To assist ARP in the establishment of a referral network for ARPwave Neuro Therapy from existing network of health care providers and other ARPwave resources.
(f) To assist ARP and Provider with financing of Neuro Therapy - Neuro Recovery treatment Systems to patients, as necessary.
4. MARKETING AND PROMOTION OF SYSTEM(S)
4.01 Promotion. Developer shall use its best efforts to market and promote ARPwave Neuro Therapy - Neuro Recovery Network and related System(s). Developer shall work with ARP to determine the reasonable methods and means of marketing of ARPwave Neuro Therapy - Neuro Recovery Network and related System(s)within the Territory. Developer shall abide by all applicable ARP instructions, manuals, processes and protocols in marketing and promoting the System(s).
4.02 Marketing Practices.
a. The standard indications approved by the FDA for use for the ARP RX 100 device under 21 CFR 890.5850 are:
1. Relaxation of muscle spasms;
2. Prevention or retardation of disuse atrophy;
3. Increasing local blood circulation;
4. Muscle re-education;
5. Immediate post-surgical stimulation of calf muscles to prevent venous thrombosis; and
6. Maintaining or increasing range of motion.
Federal law restricts the ARP RX 100 device to sale or lease by or on the order of a practitioner licensed by the law of the State in which he or she practices to use or order the use of the device.
Developer will at all times tailor its marketing practices to the above FDA approved standard indications. Developer shall market, promote and perform hereunder in a professional manner and in accordance with this Agreement and any guidelines issued by ARP to Developer. Developer will: (a) conduct its business in a manner that reflects favorably at all times on the System(s) and the good name, goodwill and reputation of ARP; (b) avoid deceptive, misleading or unethical practices that are or may be detrimental to ARP or the System(s) or the public, including but not limited to disparagement of ARP or the System(s); (c) make no false or misleading representations with respect to ARP or the System(s); and (d) make no representations with respect to ARP or the System(s) that are inconsistent with the FDA approved standard indications and the End User License agreement for the System(s), promotional materials and other product literature, including all liability limitations and disclaimers contained in such materials, copies of which materials shall be provided by ARP to Developer.
4.03 Representatives, Agents and Employees. Developer shall have the right to appoint such representatives, agents, employees and other third parties to assist Developer's marketing of the System(s) in the Territory as shall be deemed appropriate by Developer in his or its reasonable discretion; provided, however, that Developer shall be solely responsible for supervising and monitoring the activities of all such persons and entities to ensure compliance with the terms and provisions of this Agreement, and Developer shall be liable for any breaches caused by such persons and entities as though such breaches had directly been caused by Developer. Developer shall require that each such third party shall execute Confidentiality, Non-Compete and Non-Solicitation Agreement in substantially the form attached as Schedule C hereto prior to such appointment.
4.04 Promotional and Sales Materials. Developer will be provided with a template for marketing materials for promotional the use and demonstration to Providers. Developer may not use such materials for any purpose other than marketing and promoting the System(s) to End Users in the Territory. Notwithstanding anything to the contrary herein, Developer may not distribute any Developer-created promotional materials with respect to ARP or the System(s) without ARP's prior written approval of such materials. Developer consents to the listing of its business name, address, phone number and web site addresses in such ARP advertising and promotional materials as ARP may determine in its sole discretion, including product literature and ARP's web sites.
4.05 Permits, Licenses and Compliance with Laws and FDA Regulations. Developer will, at its sole cost and expense, obtain all permits and licenses necessary in connection with its performance of this Agreement, and will comply with all applicable laws, rules and regulations in the performance of this Agreement.
4.06 Privacy or Data Collection. Developer will at all times during the Term maintain appropriate technical and organizational measures to protect any End User and Patient data that Developer either collects, accesses or processes in connection with this Agreement or any related agreements with the Provider, against unauthorized or unlawful use, disclosure, processing or alteration. Developer will perform in accordance with all applicable laws, rules and regulations
with regard to the collection, use, disclosure and processing of any such End User or Provider or Patient data and information received.
5. OWNERSHIP
All right, title and interest in and to the System(s) and associated ARP promotional materials and documentation, including without limitation all copyrights, patent rights, trademark and service mark rights, trade secret rights and other intellectual property rights, are and will remain the property of ARP, and such items may only be used by Developer as expressly permitted hereunder. Developer shall not remove, alter or otherwise modify any copyright, trademark or other notices of proprietary interest contained in the System(s), ARP promotional materials and or or documentation.
6. TRADE SECRETS AND CONFIDENTIAL INFORMATION
6.01 “Trade Secrets and Confidential Information" Defined.
A. Definition of Trade Secrets. As used in this Agreement, the term “Trade Secrets” shall mean all techniques, protocols, methods of doing business and procedures used by ARP in its business which are not generally known or used in the industry; lists of ARP’s current and prospective Customers and associated customer information (including, but not limited to, customer names, contacts, addresses, buying habits, data, preferences, and requirements); computer programs developed by ARP or its Reps; inventions, improvements, discoveries (whether or not patentable), databases and any information or data which meets the definition of trade secrets under the Minnesota Trade Secrets Act or common law.
B. Definition of Confidential Information. As used in this Agreement, “Confidential Information” means data or information, whether constituting a trade secret or not, which is of value to ARP and not generally known to persons or entities outside of ARP, including, but not limited to, the following: (i) historical business information about ARP’s Customers, including but not limited to, job orders information, contacts, addresses, organization charts and other client information which Developer learns about ARP’s Customers and Prospective Customers through Developer’s involvement with ARP; (ii) Candidate information, including but not limited to, resumes, profiles, interview information, references and any other candidate information which Developer learns about ARP’s Candidates and prospective candidates through Developer’s involvement with ARP; (iii) all financial and business records of ARP; (iv) lists of ARP’s Customers, Prospective Customers, or Candidates for involvement; (v) lists of ARP’s vendors and associates vendor information (including, but not limited to, contacts, buying requirements, vendor numbers, deals with ARP, preferences, and requirements); (vi) purchasing and materials information; (vii) training manuals; (viii) information about ARP’s methods of doing business or information regarding the financial aspects of ARP’s business such as budget, costs, financial statements, fees and prices, pricing policies, quoting procedures, sales, financial projections, and other financial information; (ix) information regarding business opportunities for new or developing businesses for ARP, and business and marketing plans,
techniques, and strategies of ARP (including, but not limited to, plans for new products or services); (x) data processing, and computer programs; (xi) any technological innovations used in the business; (xii) any information received by ARP from third parties in confidence (or subject to non-disclosure or similar covenants) and the terms and conditions of negotiations or confidential contracts between ARP and third parties; (xiii) the System(s); (xiv) any personally identifiable data or information regarding any End User; (xv) any and all information disclosed by ARP to Developer, in whatever format, that is either identified as or would reasonably be understood to be confidential and or or proprietary; (xvi) any notes, extracts, analyses or materials prepared by Developer which are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood; (xvii) the terms and conditions of this Agreement; and (xviii) any information received, compiled, developed, designed, produced, accessed, or otherwise discovered by the Developer from time to time during the term of this Agreement that is not in the public domain.
6.02 Developer's Obligations. Developer will make no use of Confidential Information for any purpose except as expressly authorized by this or any other Agreement. Except as expressly provided in this Agreement, Developer will not disclose Confidential Information to any third party and will protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care. Except as expressly provided in this Agreement, Developer will not use, make or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of ARP. In the event that Developer is required to disclose Confidential Information by law or by legal process, Developer will notify ARP of the required disclosure with reasonably sufficient time for ARP to seek relief, Developer will cooperate with ARP in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.
1. Agreement Not to Disclose or Use Trade Secrets or Confidential Information. Developer acknowledges that he or it will from time to time come into contact with and have access to ARP’s Trade Secrets (as defined below) and Confidential Information (as defined below). Developer specifically acknowledges that such Trade Secrets and Confidential Information, whether reduced to writing or maintained in the mind or memory of Developer, and whether compiled or created by Developer, ARP or its Customers, derive independent economic value from not being readily known to or ascertainable by proper means by others who could obtain economic value from the disclosure or use of such Trade Secrets and Confidential Information. Developer also acknowledges that reasonable efforts have been put forth by ARP to maintain the secrecy of its Trade Secrets and Confidential Information, that such Trade Secrets and Confidential Information is and will remain the sole property of ARP or its Customers, as the case may be, and that any retention and or or use of such Trade Secrets and Confidential Information during (except in the regular course of performing his or its duties hereunder) or after the termination of Developer’s involvement with ARP will constitute a misappropriation of such Trade Secrets and Confidential Information belonging to ARP. In consideration of Developer’s initial involvement with ARP and of his or its access and exposure to ARP’s Trade Secrets and Confidential Information,
and other good and valuable consideration, Developer expressly covenants and agrees that during his or its involvement with ARP and following termination of Developer’s involvement with ARP, whether such termination is by Developer or ARP for whatever reason (with or without cause), Developer will not (a) use any Trade Secrets or Confidential Information except as necessary in the performance of his or its duties for ARP; or (b) reveal or disclose or allow to be revealed or disclosed any Trade Secrets or Confidential Information to any person, firm, partnership, trust, corporation or other entity outside ARP except as expressly authorized in Developer’s performance of his or its duties for ARP.
2. Returning ARP Documents and Materials. Developer agrees that, upon demand by the ARP, Developer will promptly return and deliver to ARP (and will not keep in his or its possession or deliver to anyone else) any and all tangible trade secrets, confidential knowledge, data, or other tangible proprietary information of or belonging to the ARP, its affiliates, or their successors or assignees, including, without limitation, records, data, notes, reports, proposals, lists, correspondence, business plans, other documents or property, and all reproductions of any of the foregoing items.
6.03 Confidentiality or Non-Competition Agreement. Developer and its officers, affiliate companies, sub-representatives, employees, agents and representatives agree not to license, lease, sell, manufacture, or otherwise represent any similar or competitive product or System(s) within the Territory for the duration of this Agreement and for a period of two (2) years beyond the termination of this Agreement with or without cause by either party. Developer shall insure that during the term of the parties’ relationship, every employee and independent contractor of Developer shall execute a Confidentiality, Non-disclosure, Non-competition Agreement in the form substantially similar to that contained in Schedule D, hereto.
1. Covenant not to Compete. At all times while working for or on behalf of the ARP, and continuing for 24 months after termination of involvement of Developer with the ARP, regardless of the reason for termination, Developer shall not:
a. acquire any interest in, accept involvement or anything of value from, engage in, or give assistance to any person, business, or enterprise which competes with the ARP;
b. hire any employee or contractor of ARP or any of its affiliates or in any way induce such employee or contractor to terminate involvement with ARP or any of its affiliates; or
c. directly or indirectly contact, solicit or provide any goods or services of any kind to any present or potential customer or end user of ARP or its affiliates.
2. Remedies for Breach. Developer acknowledges that he or it has carefully read and considered all of the terms and conditions of the Agreement. Developer further acknowledges that money damages would not be a measurable or adequate remedy for Developer’s breach of any provisions contained in Section 6 of this Agreement, and accordingly, in addition to and without limiting any other remedy available to the ARP in the event of such breach, Developer agrees to submit to the equitable jurisdiction of the Minnesota State District Court for purposes of personal and
subject matter jurisdiction and venue in Hennepin County, Minnesota in connection with any action to enjoin the Developer from violating any such covenants. In addition to all of the remedies otherwise available to ARP, which shall include but not limited to, recovery from Developer of damages, costs and reasonable attorneys’ fees incurred in the enforcement of this Agreement, ARP shall also have the right to injunctive relief to restrain and enjoin any actual or threatened breach of the provisions of this Agreement. All of ARP remedies for breach of this Agreement shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedies.
7. ARP LIMITED WARRANTY AND DISCLAIMER
EXCEPT FOR THE EXPRESS WARRANTIES, IF ANY, MADE TO THE END USER IN THE APPLICABLE ARPWAVE SPORT SYSTEM LICENSE AGREEMENT OR MADE HEREIN, ARP MAKES NO OTHER WARRANTIES RELATING TO THE PRODUCTS OR SYSTEMS, EXPRESS OR IMPLIED. ARP DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE AND NON-INFRINGEMENT. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PRODUCTS OR SYSTEMS OR THE MANNER IN WHICH THE PRODUCTS OR SYSTEMS ARE SUPPLIED. DEVELOPER WILL MAKE NO WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF ARP.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL ARP BE LIABLE TO DEVELOPER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
9. INDEMNIFICATION
9.01 Indemnification By Developer. Developer will indemnify, defend and hold harmless ARP and ARP’S agents, officers, employees, directors, governors, members, insurers and representatives from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs, and expenses (including reasonable attorneys' fees and costs of litigation) of whatever kind or nature which arise out of or in any way result from any acts or omissions of Developer relating to its activities in connection with this Agreement, Developer's breach of this Agreement, or Developer's misrepresentations relating to ARP, the System(s) or this Agreement, regardless of the form of action. Developer will be solely responsible for any claims, warranties or representations made by Developer or Developer's representatives or agents which
differ from the warranties provided by ARP herein or in the applicable End User License Agreement.
9.02 Claims by ARP. ARP shall give Developer reasonable notice of any claim or litigation as to which Developer has an indemnification obligation hereunder. Developer shall, at its sole expense, assume the defense thereof, and ARP shall provide Developer with reasonable cooperation in such defense. If ARP desires to appoint counsel to participate in such defense, in addition to counsel supplied by Developer, it may do so at its own expense, but Developer and counsel provided by Developer shall have the right to control said defense. Notwithstanding anything contained herein: (i) Developer may not consent to any injunctive order or decree binding upon ARP without the consent of ARP, which consent shall not be unreasonably withheld or delayed; and (ii) if Developer fails to assume in a timely manner the defense of any claim or litigation as to which it has an indemnification obligation hereunder, ARP shall have the right to conduct its own defense, and Developer shall be required to reimburse it for any and all expenses (including but not limited to attorneys' fees, expenses and court costs) incurred in such defense, in addition to Developer's other obligations hereunder.
9.03 Insurance. Developer shall maintain, at its own expense, comprehensive general liability insurance with policy limits of not less than two million dollars ($2,000,000), single limit coverage, for Developer's performance of its obligations under this Agreement with respect to the System(s). Developer shall provide ARP with certificates or other documentation reasonably satisfactory to ARP of the above insurance at the inception of this Agreement and again thereafter as often as ARP may request in its sole discretion.
10. ARP SUPPORT.
ARP agrees to provide Developer with such support as may reasonably be requested by Developer for Developer to promote and market the System(s) within the Territory and to perform Developer's other duties hereunder. It shall be Developer's responsibility to thoroughly and carefully review any materials provided by ARP and to participate in the training offered by ARP in order to enable Developer to carry out its duties hereunder.
11. ARP TRADEMARKS.
"ARP Trademarks" means all names, marks, logos, designs, trade dress and other brand designations used by ARP in connection with its System(s) and services. In performing his or its obligations hereunder, Developer may refer to the System(s) by the associated ARP Trademarks provided that such reference is not misleading and complies with any written guidelines issued by ARP. Developer is granted no right, title or license to, or interest in, any ARP Trademarks. Developer may not use any of ARP Trademarks as part of its business name. Developer acknowledges and agrees that any use of the ARP Trademarks by Developer will inure to the sole benefit of ARP. If Developer acquires any rights in any ARP Trademarks by operation of law or otherwise, it will immediately, at no cost or expense to ARP, assign such rights to ARP along with all associated goodwill.
12. RELATIONSHIP OF PARTIES.
12.01 Independent Contractor. This Agreement does not constitute either party the agent of the other, or create a partnership, joint venture, agency, employment, franchise, or similar relationship between the parties and neither party will have the power to obligate the other in any manner whatsoever. ARP and Developer acknowledge and agree that, so long as the following do not interfere with Developer’s performance under this Agreement: (a) Developer is permitted to promote System(s) and services of companies other than ARP; (b) Developer is not required to promote ARP System(s) or services exclusively; and (c) Developer’s decision to devote all or some of its business efforts to the System(s) or services of any particular company is solely in the discretion of Developer.
Nothing herein shall be construed to create the relationship of employer and employee between ARP and Developer, nor between any representative of ARP and of Developer. Developer shall act as an independent contractor and not as an agent or employee of ARP. Neither party shall represent to any third party that it is the employee, agent, joint venturer or partner of the other party, make any representation or warranty on behalf of or in the name of the other, or conduct any business or accept payment or service of legal process for the other. Neither party shall have any express or implied right or authority to enter into any contract or assume or create any obligations on behalf of the other party. Developer shall have the exclusive authority to manage, direct and control the means, methods, techniques, sequences, procedures and coordination of its performance hereunder and Developer shall be exclusively responsible for directing, supervising, compensating, disciplining, discharging or otherwise dealing with any personnel engaged by it. Developer shall be exclusively responsible for compliance with all applicable laws, regulations or rules with respect to self-employment and or or employment of others, such as earnings reporting and withholding requirements for Developer and any personnel engaged by Developer. It is expressly understood and agreed by ARP that Developer may, during the Term, market, and license System(s) and or or services in addition to the System(s) to be marketed hereunder, and that such activities are specifically permitted, so long as such activities are not in violation of the restrictive covenants set forth in this Agreement.
12.02 Indemnification in the Event of Contrary Interpretation. Notwithstanding the provisions of Section 12.01 above, if a court or any agency of either the federal or state government determines that the Developer or any workers engaged by the Developer are employees of ARP for any purposes whatsoever including but not limited to liability for withholding taxes, social security, unemployment compensation or any similar taxes, workers' compensation coverage or liability, or liability under industrial accident laws or any other state or federal law applicable to employment, the Developer agrees to indemnify and defend ARP and to hold and save ARP harmless from and against any and all liability, obligation or expense incurred by ARP, including but not limited to the amount of any assessment, award, judgment, penalty or other order which may be entered against ARP on account of such determination, as well as any other expense incurred by ARP in connection with such matter, including attorneys' fees and other litigation costs and expenses. Developer will indemnify and hold ARP harmless from any obligation of Developer to pay all legally required withholding and payment of federal and state income taxes, FICA, unemployment taxes, and any other taxes, levies or duties in connection with Developer's performance under this Agreement, and from any and all damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs of litigation) directly arising out of or resulting there from.
13. TERM AND TERMINATION
13.01 Term. The term of this Agreement shall be for 1 year, subject to earlier termination as described below in this Section 13 (collectively, the “Term”). This Agreement shall be automatically renewed thereafter on a yearly basis unless terminated for cause.
13.02 Termination For Cause With Right To Cure. Either party may terminate this Agreement at any time in the event that the other party breaches its respective representations, warranties, covenants, obligations, agreements or duties under this Agreement by giving the breaching party written notice describing the breach in sufficient detail and giving the breaching party thirty (30) days to cure the breach. If the breach has not been cured within the cure period, then the party giving notice of the breach may immediately terminate the Agreement. In addition, if Developer has failed to maintain a minimum sales targets as determined by ARP in its sole discretion, ARP may cancel Developer’s exclusivity and remarket the Territory with notice to Developer and opportunity to cure as described above.
13.03 Other Events of Default. In addition to the defaults referred to above, each of the following shall constitute an event of default and shall be grounds for immediate termination of this Agreement at the election of the non-defaulting party: (i) if either party shall make an assignment for the benefit of creditors, appoint a receiver, trustee or similar fiduciary with respect to its property or business, or if either party shall file a voluntary petition in bankruptcy or other similar proceeding under any law for the relief of debtors; (ii) if either party shall have filed against it a petition in bankruptcy or other similar proceeding under any law for relief of debtors which bankruptcy petition or similar proceeding shall remain undischarged for ninety (90) days; (iii) if either party shall cease doing business for a continuous period of thirty (30) days; or (iv) upon the liquidation, dissolution or termination of either party's corporate existence or business.
13.04 Effect of Termination. Upon termination of this Agreement, Developer will cease all advertising, marketing and promoting of the System(s). Upon termination, Developer shall immediately cease using or referencing the “ARP,” “ARP Wave” trade names and any related trademarks or tradenames in any of its business practices and operations. ARP’s obligation to render payment to Developer hereunder, shall apply to all business procured during the Term by the Developer in the Territory. If this Agreement terminates for any reason whatsoever, Developer shall be entitled to administer and collect such fees from End Users as may be called for by any treatment service provided by the Developer. ARP hereby represents and warrants that it shall not terminate any System(s) License Agreement with any End User procured by Developer except for good cause.
14. ASSIGNMENT.
Neither this Agreement nor any rights or obligations of Developer hereunder shall be assignable or transferable by Developer, in whole or in part, by operation of law or otherwise, without the prior written consent of ARP, which consent will not be unreasonably withheld. Any attempted assignment, subcontract or other transfer of this Agreement or any of Developer's rights or obligations hereunder will be void ab initio and will be considered a material breach of this Agreement resulting in termination, pursuant to Article 13 above. This Agreement shall be binding upon and inure to the benefit of the parties hereto and the successors and assigns of ARP.
15. NOTICE.
15.01 Notices. All notices and demands under this Agreement shall be in writing, and shall be deemed to have been properly given or served as of (a) the date of personal delivery with acknowledgement of receipt or refusal; (b) on the day that the same is deposited in the United States mail, prepaid, for delivery by registered or certified mail, return receipt requested; or (c) the first business day after the date delivered to a reputable overnight courier service providing proof of delivery. Notice may be given by facsimile and shall be deemed given upon receipt (provided a hard copy of such notice is mailed or delivered in accordance with the preceding sentence of this Article 16. Refusal by any party of receipt or delivery of any notice given or served pursuant to this Article16 shall be deemed to be received as of the date of such attempted receipt or delivery. The initial addresses of ARP and Developer are set forth below:
If to ARP
Attention: Denis Thompson, CEO
ARP Wave, LLC
7721 145th St W Apple Valley, MN 55124-7516
ARP and Developer may designate an additional or another address upon giving notice to the other parties pursuant to this Article. Notice given in any other manner other than as stated herein shall be deemed effective only upon receipt by the party to whom such notice is given.
16. FORCE MAJEURE.
Time periods, deadlines or dates for ARP’s or Developer’s performance under any provisions of this Agreement (except for the payment of money) shall be extended for the period of time during which the non-performing party's performance is prevented or delayed due to labor shortages, casualties, embargoes, governmental restrictions or regulations, unusual weather and other acts of God, war or other strife, shortages of fuel, labor, or building materials, action or non-action of public utilities or local, state or federal governments or agencies, the act or neglect of the other party or those acting for or under the other party, or any other causes or circumstances beyond the non-performing party's reasonable control.
17. GOVERNING LAWS; JURISDICTION AND ATTORNEYS' FEES.
THIS LICENSE AGREEMENT IS MADE WITH REFERENCE TO AND SHALL BE GOVERNED AND CONSTRUED EXCLUSIVELY BY THE LAWS OF THE STATE OF MINNESOTA, WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS. EACH PARTY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF HENNEPIN, STATE OF MINNESOTA AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR ANY RELATED AGREEMENTS MUST BE LITIGATED IN SUCH COURTS. EACH PARTY ACCEPTS FOR ITSELF, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH OF THE PARTIES HERETO HEREBY WAIVES THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT.
Except as provided in Section 6 of this Agreement, in the event ARP or Developer fails to fulfill any of their respective obligations under this Agreement, and either party commences an action to enforce the terms of this Agreement, the substantially prevailing party in such action shall be entitled to receive an award of its reasonable attorneys’ fees, costs of enforcement and costs of collection incurred in any such action.
18. SURVIVAL.
The terms and obligations under this agreement, to the extent permitted by law, shall survive the expiration or the earlier termination of this Agreement. Expiration or termination of this Agreement will not relieve either party from its obligations arising hereunder prior to such expiration or termination. Rights and obligations which by their nature should survive will remain in effect after termination or expiration of this Agreement.
19. ENTIRE AGREEMENT; WAIVER.
This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes and terminates all other prior commitments, arrangements or understandings, both oral and written, between the parties with respect thereto. This Agreement may not be modified or amended except by an instrument in writing executed by each of the parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either party, their agents or employees, but may be waived only by an instrument in writing signed by an officer of the waiving party. No waiver of any provision of this Agreement on one occasion shall constitute a waiver of any other provision or of the same provision on another occasion.
20. CAPTIONS.
Captions are used throughout this Agreement for convenience or reference only and shall not be considered in any manner in the construction or interpretation of this Agreement.
21. COUNTERPARTS.
This Agreement and any amendments to this Agreement may be executed in counterparts, each of which shall be fully effective and all of which together shall constitute one and the same instrument. The parties agree to accept signatures transmitted by facsimile as if they were original signatures, and such signatures transmitted by facsimile shall be fully binding upon the parties.
22. CONSTRUCTION.
Each of the parties acknowledges and represents that it has had an opportunity to be represented by counsel in connection with the consideration and execution of this Agreement. Each of the parties further represents and declares that in executing this Agreement, it has relied solely on its own judgment and upon the advice and recommendation of its own independently selected counsel. Each of the parties and its counsel have reviewed and revised this Agreement, and have participated jointly in the negotiation and drafting of this Agreement. In the event any ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local or foreign statute or law will be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” means including without limitation.
23. COVENANTS.
Each provision of this Agreement performable by ARP or by Developer shall be deemed both a covenant and a condition.
24. SCHEDULES or EXHIBITS.
All Schedules and Exhibits to this Agreement constitute an integral part of this Agreement as if fully rewritten in this Agreement.
IN WITNESS WHEREOF, ARP and Developer have entered into this Agreement to be effective as of the date first above written.
SCHEDULE A
Area Developer will be responsible for securing 5 year licenses from ARPwave LLC for each site they setup. The license fee is $25,000 which can be financed through our leasing supplier.
COMPENSATION
ARP and Developer shall be compensated for Neuro Therapy - Neuro Recovery Treatment Systems provided to End Users and Patients as follows:
ARPwave shall receive:
1. $.45 a minute for use of the System(s) and related equipment during patient treatment, not to exceed $9.00 per patient per treatment session; and not to exceed $180.00 per patient for a twenty (20) session treatment program; and
2. $750.00 for every thirty (30) day rental of a Neuro Recovery Equipment Unit to a patient.
Developer shall receive:
1. All Neuro Therapy - Neuro Recovery Treatment Systems revenue and income from services provided to the patient.
2. Developer shall be responsible for and commits to paying ten percent 10% of the Neuro Therapy - Neuro Recovery Treatment Systems revenue to the referring Network Provider and 5% of the revenue to the Neuro Therapist rendering the treatment to Provider referred patients.
WHEREAS, THE UNDERSIGNED HAVING READ THE ABOVE TERMS AND CONDITIONS AND AGREEING TO BE BOUND BY THE ARP WAVE SYSTEM LICENSE AGREEMENT PRESENTS THEIR SIGNATURE BELOW ON THIS DAY.
ARP WAVE, LLC.
By placing my initials in this box I accept the terms in this agreement:

 
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