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HSN Mentoring - Referral Agreement

REFERRAL AGREEMENT

THIS AGREEMENT (the “Agreement”) is made and entered into as of the date of the last signature by either party (, by and between HEALTHY STEPS NUTRITION LLC, a Florida Limited Liability Company with an address at 2051 Green Road Suite A, Deerfield Beach, FL 33064 (the “Licensor”), and (hereafter referred to as "the business listed above") (the “Licensee”);

WHEREAS, Licensor is the owner in the United States of all rights, title and interest in the works as described in Appendix A (Collectively known as the “Work”), and all goodwill associated therewith; and

WHEREAS, Licensee desires to obtain and Licensor desires to grant a license to use the Work in connection with marketing and promotion of nutrition counseling services (the “Licensed Services”) in the United States;

NOW, THEREFORE, in consideration of the promises and the mutual agreements contained herein, the parties hereby agree as follows:

ARTICLE 1 GRANT OF LICENSE

Section 1.1 Grant.

Subject to Section 1.2, Licensor grants to Licensee, and Licensee hereby accepts, a non-exclusive, non-transferrable license to use the Work in connection with the Licensed Services. Such licensed use shall permit Licensee to use the Work for the provision, marketing, and promotion of the Licensed Services, including, but not limited to use in signage, advertisements, websites, and social media outlets.

Section 1.2 Use of the Work.

Licensee’s rights and license to the Work are restricted to the rights described in this Agreement. Licensee is forbidden from using the Work for any purpose other than the promotion of Licensor’s nutrition counseling services. Licensee shall comply with all applicable laws and shall obtain any necessary rights relating to the advertising, promotion, and provision of the Licensed Services using the Work. Any right not expressly granted by this Agreement shall not be implied and are reserved in their entirety by Licensor. Any use or attempt to use the Work for any purpose other than in association with the Licensed Services shall be an infringement of Licensor’s rights, and shall cause Licensor irreparable harm.

Section 1.3 No Sublicense.

Licensee shall have no right to sublicense the Work or otherwise authorize the use of the Work by any third party without the express written consent of Licensor.

ARTICLE 2 OWNERSHIP OF THE WORK

Section 2.1 Ownership.

Licensee acknowledges and agrees that Licensor is the exclusive owner of the Work, including all goodwill associated therewith or arising from such use. Licensee also acknowledges and agrees that Licensor shall retain the full ownership, title, and interest in the Work, the associated goodwill, and all registrations granted thereon. Licensee shall not directly or indirectly express to the public any ownership interest in the Work, nor in the nutrition counseling services.

Section 2.2 No Registration.

Licensee shall not apply to register, or cause to be registered, any work of art, designs, logo, or other trademarks or copyrights consisting of, comprising or containing any materials found in the Work, the Healthy Steps Nutrition logo, or the design element therein, including without limitation any registration in the United States Copyright Office, the United States Patent and Trademark Office, or any state Secretary of State’s office.

Section 2.3 No Contest to Title or Validity.

During the Term of this Agreement, Licensee shall not contest the title of Licensor to the Healthy Steps Nutrition logo, or the Work or registrations thereof or challenge the validity of this Agreement (or aid or cause third parties to contest or challenge such title or validity). Further, Licensee shall take reasonable steps to avoid any action or inaction the result of which could reasonably foreseeably adversely prejudice Licensor’s rights, title and interest in the Work.

ARTICLE 3 TERM and TERMINATION

Section 3.1 Term.

This Agreement shall commence as of the Effective Date and shall remain in effect until termination pursuant to Section 3.2 (the “Term”).

Section 3.2 Termination.

This Agreement shall continue for one (1) year (the “Expiration Date”), subject to the Agreement being automatically renewable for additional one (1) year Terms unless either party provides thirty (30) days written notice prior to the Expiration Date or any subsequent one (1) year Term. Licensor shall have the option to immediately terminate this Agreement, at Licensor’s sole discretion and upon thirty (30) days written notice to Licensee, if Licensee materially breaches the covenants or obligations, or otherwise fails to abide by the terms, of Articles I, II, and/or IV and fails to cure such breach to the full satisfaction of Licensor. This Agreement shall also be terminated thirty (30) days after written notice by Licensee of its intent to terminate. It shall be expressly stated to clients brought on by Licensee that client’s must satisfy their commitments to Licensor, regardless of whether this agreement has been terminated.

Section 3.3 Effect of Termination.

In the event of termination of this Agreement due to an uncured material breach, Licensee shall immediately cease and terminate all use of any kind whatsoever of the Work. In the event of termination of this Agreement other than for an uncured material breach, Licensee shall have 30 days following termination to cease such use. Licensee shall not replace the Work with any other designs, logos, words, names, phrases or other trademarks confusingly similar thereto.

ARTICLE 4 QUALITY CONTROL

Section 4.1 Rights to Control, Review and Inspect.

Licensee shall provide written notice to Licensor of an exemplar of each different use it intends to make of the Work for Licensor’s approval, including a description of how the Work is to be displayed and otherwise used by Licensee. Licensor shall have five business days to comment on, suggest changes to or object to such exemplar following such notice. Licensee shall make any and all changes reasonably requested or suggested by Licensor of such exemplar. In the event Licensee does not respond or comment to such notice within five business days of its receipt by Licensor, such exemplar’s use shall be deemed approved by Licensor. Once Licensor’s approval is received for a given use of the Work, all substantially similar future uses of the Work shall automatically be deemed approved and Licensee shall have no obligation or duty to seek reapproval for such uses. Licensor shall have the right at all reasonable times to review Licensee’s use of the Work, including without limitation the right to inspect Licensee’s provision of the Licensed Services, and any promotional materials and advertising concerning the Work to determine Licensee’s compliance with the foregoing requirements. Licensee therefore agrees and acknowledges that Licensor may, from time to time, but not more than twice per Calendar Year, require that Licensee provide Licensor with samples of all promotional and/or marketing materials, including, but not limited to, literature, brochures, signs, and advertisements prepared by or on behalf of Licensee with respect to such materials regarding the Work.

ARTICLE 5 COMPENSATION

Section 5.1 Referral Fee

Licensor shall compensate Licensee a referral fee for each individual whom purchases nutrition counseling services with Licensor as a result of the Licensed Services. This referral fee shall be 20% of the fee charged to the individual that has purchased nutrition counseling services as a result of the Licensed Services. Any referral fee due to Licensee shall be paid on a quarterly basis and Licensee will be compensated as an independent contractor.

Section 5.2 Retention of Client Base

Should Licensee decide to become a member of Licensor’s “Mentoring Program”, Licensee agrees to pay fees associated with necessary training for the program. After completion of the necessary training, Licensee will retain all clients whom have been referred to Licensor as a result of the Licensed Services in this agreement.

ARTICLE 6 NO WARRANTY, INDEMNIFICATION.

Section 6.1 No Warranty For Claims By Third Parties, or other Express/Implied.

LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTY THAT LICENSEE WILL BE FREE FROM CLAIMS OF THIRD PARTIES WITH RESPECT TO LICENSEE’S USE OF THE WORK. MOREOVER, LICENSOR MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EXCEPT FOR DAMAGES ARISING FROM ANY INDEMNIFICATION CLAIM PURSUANT TO SECTION 5.2, OR ANY BREACH OF THE EXCLUSIVITY OR NON-USE PROVISIONS SET FORTH IN SECTION 1.1 OR 2.1, RESPECTIVELY, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; AND/OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Section 6.2 Indemnification.

Licensor shall indemnify and hold Licensee harmless against any claims, causes of action, liabilities, damages, fines, costs, fees and expenses (including attorney and other professional fees and expenses) arising out of Licensee’s permitted use of the Work as contemplated by this Agreement. Licensee shall indemnify and hold Licensor harmless against any claims, causes of action, liabilities, damages, fines, costs, fees and expenses (including attorney and other professional fees and expenses) arising out of Licensee’s use of the Work in any manner not permitted or otherwise contemplated by this Agreement.

ARTICLE 7 MISCELLANEOUS

Section 7.1 Entire Agreement.

This Agreement constitutes the entire agreement between the parties respecting the subject matter hereof and supersedes all prior written or oral agreements, representations, assurances, promises or understandings in variation of its terms.

Section 7.2 Amendments.

Except as expressly set forth herein, this Agreement can only be amended by agreement in writing signed by duly authorized representatives of the parties hereto.

Section 7.3 Governing Law; Jurisdiction.

This Agreement shall be governed by the laws of the State of Florida and by the laws of the United States of America, and the parties agree to the exclusive jurisdiction of the federal and state courts located in Broward County, Florida without giving effect to the conflict of law provisions thereof. The parties waive trial by jury in all matters relating to this Agreement.

Section 7.4 Notice of Claim.

Prior to Licensor’s instituting any legal action for infringement or arising out of this Agreement, Licensor shall provide Licensee thirty (30) days written notice of its claim and intent to institute action and the parties’ executives shall confer in a good faith attempt to resolve any dispute respecting such claim.

Section 7.5 Severability.

In the event that any part of this Agreement shall for any reason be finally adjudged by a court of competent jurisdiction or determined by a governmental body to be invalid or unenforceable, then this Agreement shall continue in effect and such part shall be excised from this Agreement.

Section 7.6 Waiver.

Except as otherwise specifically provided herein, no failure or delay on the part of any party hereto to enforce any provision of this Agreement or to exercise any right granted hereby shall operate as a waiver thereof unless or until the right to enforce any such provision or to exercise any such right has been waived in writing by such party. Any waiver of any provision hereof or right hereunder shall be effective only in accordance with its terms. No waiver of any provision hereof or any right hereunder shall constitute a waiver of a continuance or reoccurrence of the failure to perform, except as provided in such waiver.

Section 7.7 Assignment.

This Agreement is personal to Licensee and shall not be assigned or transferred by Licensee, including, without limitation, by operation of law. Any attempt on the part of Licensee to assign or transfer Licensee’s rights under this Agreement shall be invalid and void. Licensor shall have the right to assign and/or license its rights and obligations under this Agreement and all its rights, title, and interest in the Work without the consent of Licensee.

Section 7.8 Headings.

The headings of the various articles and sections hereof are for convenience of reference only, shall not be deemed to be a part hereof, and shall not affect the meaning or construction of any provision hereof.

Section 7.9 Not an Agent/Partner.

Nothing in this Agreement shall be deemed or construed as constituting either party the agent, partner, servant or legal representative of the other.

Section 7.10 Notices.

All notices from one party to the other must be in writing and are effective when mailed to, hand-delivered at, or transmitted by facsimile or electronic transmission as follows:

LICENSOR

Healthy Steps Nutrition, LLC., 2051 Green Road, Suite A, Deerfield Beach, FL 33064

Name of person signing: Lauren Nicole Aucoin

Date:

The parties have executed this Agreement through their authorized representatives indicated below and by signing below each authorized representative acknowledges its receipt, reading, understanding and acceptance of this Agreement.

LICENSEE

Date:

Appendix A

The “Work”

The Healthy Steps Nutrition blog posts found at https://healthystepsnutrition.com/blog/

The Healthy Steps Nutrition videos found on our youtube channels or in consultation materials

The Healthy Steps Nutrition recipes

The Healthy Steps Nutrition & HSN Mentoring logo and badge

The Healthy Steps Nutrition videos (found on youtube)

The Healthy Steps Nutrition website landing page template

The Healthy Steps Nutrition recipe page

The Healthy Steps Nutrition graphics provided while having an active referral agreement

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Signed by L. Nicole Aucoin
Signed On: April 26, 2019

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April 26, 2019 10:47 am EDT

HSN Mentoring - Referral Agreement Uploaded by L. Nicole Aucoin - consulting@healthystepsnutrition.com IP 45.29.179.56

April 26, 2019 10:56 am EDT

Nicole Aucoin - consulting@healthystepsnutrition.com added by L. Nicole Aucoin - consulting@healthystepsnutrition.com as a CC'd Recipient Ip: 45.29.179.56