Terms OF Service AGREEMENT

1. Applicability.
   • These terms of service, together with any documents they expressly incorporate by reference, (collectively, “Terms“), are entered into by and between You (“You” or “Customer”) and The Appointment Setter, LLC (“Company“) govern your access to and use of any and all of the Company’s services, your access to and use of theappointmentsetter.com (“Website”), including any content, training, and services offered on or through Website, and are the only terms that govern the provision of services between You and the Company. If you do not want to agree to these Terms of Service then you must not use the services and you must not access or use the Website.
   • Any receipt of payment (the “Receipt“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and any receipt of payment, these Terms shall govern.
2. Services. Company is a marketing business which uses proprietary technology to generate appointments on a nonexclusive basis to Customer which then allows Customer to connect with prospects (the “Services“) in accordance with these Terms.
3. Performance Dates. Company will use its best efforts to provide the quantity of appointments ordered by Customer on an annual basis. Any dates related to the appointments shall be estimates only.
4. Customer’s Obligations. Customer shall:
   • cooperate with Company in all matters relating to the Services;
   • act professionally by arriving to each appointment in a timely manner, prepared to answer all questions, and actively to help the prospect with whom You have the appointment with the advice they need regardless of whether it leads to a sale;
   • respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of this Agreement;
   • provide such materials or information as Company may reasonably request to carry out the Services in a timely manner; and
   • obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start (including following all state and department of insurance guidelines);
   • refrain from using any email or marketing content, systems, or methods to create similar appointments and refrain from altering any email or marketing content in any way.
   • refrain from sharing, reassigning, or reselling appointments unless specific authorization states You can do so and such authorization is in writing signed by the Company.
5. Customer’s Acts or Omissions. If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of You or your agents, subcontractors, consultants, or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by You, in each case, to the extent arising directly or indirectly from such prevention or delay. Furthermore, any violation of Customer’s Obligations, including any improper use of the Services or manipulation of the Obligations, shall result in Services being suspended indefinitely without refund or replacement of appointments.
6. Fees; Recurring Payment Terms; Late Payments.
   • In consideration of the provision of the Services by Company and the rights granted to You under this Agreement, You shall pay the fees set forth in the
   • You understand and agree that the fees set forth in the Receipt renew automatically on an annual basis and constitute a monthly recurring charge (“MRC”). You hereby authorize Company to charge your payment method monthly for each billing period until you have notified the Company in writing that you wish to terminate this Agreement. By authorizing recurring payments, you authorize Company to process such payments as either electronic debits or fund transfers, or as electronic drafts from the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in the case or credit card or similar payments) (collectively “Electronic Payments”). If any payment is returned unpaid or if any credit card or similar transaction is rejected or denied, Company reserves the right to collect any applicable return item, rejection or insufficient funds fee to the maximum extent permitted by applicable law and to process any such fees as an Electronic Payment or to invoice You for the amount due.
   • You acknowledge that it is solely your responsibility to notify the Company if you wish to increase, decrease, or discontinue the Services. The Services can only be discontinued if You give the Company prior written notice at support@theappointmentsetter.com at least thirty (30) days before the MRC takes place for the upcoming year.
   • In the event of a billing failure, You will have seventy-two (72) hours to update the payment method. If You do not update the payment method, Company reserves the right to stop and suspend all Services to You under this Agreement until payment has been made in full.
   • No Refund Policy. Due to the nature of the Services, You understand that you are not entitled to any monetary refund from Company under any circumstance whatsoever. For each appointment that is cancelled by the prospect only or if the prospect does not show up for the appointment, an appointment can be credited at the Company’s discretion. Company will use a composite average of all Customers active in its system and how many, if any, no-shows or cancelled appointments occur to determine how many cancelled or no-show appointments to replace.
   • In the event of a billing dispute, specifically defined as a dispute related to any charge in excess of the agreed upon MCR, You shall provide Company with a summary of the dispute in writing together with supporting documentation to support@theappointmentsetter.com. You have fifteen (15) days after the MRC of each month to dispute that specific MRC. If You fail to dispute the MRC within the 15 days, You waive your right to any disputed amount for that month.
7. Company’s Rights. Company reserves the right to sell Services to any individual, group, or organization at any price. Company reserves the right to expand as a business and change the Services accordingly, which may include but is not limited to the following: increasing or decreasing the features or the methods by which appointments are generated or Services are delivered; changing the cost per appointment; changing the cost of packages; offering or ceasing to offer any package structures; and adding monthly or yearly access or membership fees at any point in time.
8. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Company in the course of performing the Services, including any items identified as such in the Order Confirmation (collectively, the “Deliverables“) shall be owned by Company. Company hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
9. Confidential Information.
   • All non-public, confidential or proprietary information of Company, including, but not limited to, all ideas, concepts, trade secrets, methods, systems, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, marketing, content (including Website content), training material (including training material provided on the Website), (collectively, “Confidential Information“), disclosed by Company to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Company.
   • Customer agrees to use the Confidential Information only to make use of the Services and Deliverables.
   • Company shall be entitled to injunctive relief for any violation of this Section.
10. Warranty Disclaimer.
    • COMPANY MAKES NO WARRNTY WHATSOEVER WITH RESPECT TO ANY MATTER UNDER THIS AGREEMENT. COMPANY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND OR NATURE WITH RESPECT TO THE COMPANY, SERVICES, WEBSITE AND WEBSITE CONTENT (INCLUDING ANY TRAINING MATERIAL OR VIDEOS), WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ANY (1) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
11. Limitation of Liability.
    • IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED ONE TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT TO THE APPLICABLE MCR IN THE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Termination. In addition to any remedies that may be provided under this Agreement, Company may terminate this Agreement with immediate effect upon written notice to Customer, if Customer:
    • fails to pay any amount when due under this Agreement; and
    • has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part.
13. Indemnification. You shall be solely responsible for all acts or omissions that take place during or as a result of your appointments with each prospect. As such, You agree to (i) defendCompany against all claims and lawsuits in any form brought by any of your prospects or any other third party against Company arising out of any of your acts or omissions and (ii) pay actual and direct liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees ) incurred by Company with respect to same. You agree to indemnify, defend and hold harmless Company, its owners, officers, directors, and affiliates, from and against any and all claims, losses, demands, liabilities, costs and expenses (including reasonable attorney’s fees and costs and expenses related thereto) suffered or incurred by Company or any of its owners, officers, directors, and affiliates, as a result of, or in connection with, any third party claims to the extent caused, in whole or in part, by the your negligence, gross negligence, fraud, mis presentations, illegal activity, unethical activity, or any misconduct.
14. Waiver. No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that both parties shall use reasonable efforts which are consistent with accepted practices in the industry to resume performance as soon as practicable under the circumstances.
16. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
17. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. Arbitration. All disputes arising under this agreement shall be governed by and interpreted in accordance with the laws of Ohio, without regard to principles of conflict of laws. The parties to this agreement will submit all disputes arising under this agreement to arbitration in Columbus, Ohio before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA, except that such arbitrator shall be an attorney admitted to practice law in Ohio. No party to this agreement will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent either party from obtaining an injunction.
19. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) shall be in writing and addressed to the parties at the addresses set forth in the Receipt. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), by email (support@theappointmentsetter.com) or by certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
20. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
21. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Intellectual Property, Indemnification, Arbitration, Survival.
22. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.