VisionRx.com PUBLISHING & HOSTING AGREEMENT

AGREEMENT entered into by and between VisionRx.com Inc., hereinafter referred to as "VisionRx", and

Customer:

 

Address:

 
 

  1. SERVICE DESCRIPTION

    1. Website Publishing: For purposes of this agreement, the term "VisionRxSite" shall mean the website designs, layouts, programming, stock photography and illustrations described in the VisionRxSite-Profile™ completed by the CUSTOMER and which contains the information to be published on the CUSTOMER's website.

    2. Website Hosting: For purposes of this agreement, the term "Network" shall mean the network of dedicated server computers, routers, hubs, switches, other equipment and software located in New York or, in some cases, leased or subcontracted by VisionRx.com from other Internet website suppliers in other locations, all of which are integrated with the Internet and which send and receive data and information in relationship to other computers on the World-Wide-Web. As an Internet Presence Provider (IPP), VisionRx.com provides Internet website hosting for customers of its VisionRxSites website services and CUSTOMER wishes to connect to the World-Wide-Web utilizing the hardware and software resources of VisionRx.com's Network to establish an Internet presence using VisionRx.com's VisionRxSite services.

  2. COPYRIGHTS

      1. Copyrights: All VisionRxSite designs, layouts, programming, stock photography and stock illustrations are owned by VisionRx.com Inc. or its suppliers ("VisionRx.com Materials") and are protected by United States copyright laws and international treaty provisions. Any informational content, artwork, illustrations, photography or other materials submitted to VisionRx.com within the CUSTOMER's VisionRxSite-Profile or as an attachment is property of the CUSTOMER and will be returned upon written request. In the event of termination of this agreement, CUSTOMER shall cease use of the VisionRx.com Materials used on CUSTOMER's website. In no event will the VisionRx.com Materials be used in any way outside the terms of this agreement including, but not limited to, advertisements, brochures, literature or other print publications.
      2. Copyright Release: CUSTOMER certifies that all materials, including but not limited to, informational content, writings, articles previously published and unpublished, artwork, illustrations and photography, submitted to VisionRx.com by CUSTOMER or by it's appointed agents or representatives, for purposes of publication on CUSTOMER's website, do not knowingly infringe upon the copyrights of any other persons or entities. CUSTOMER agrees to indemnify and hold VisionRx.com harmless from any and all actions brought against it from any and all parties claiming infringement as a result of publication of any such materials.
      3. Release Signatures: CUSTOMER shall provide VisionRx.com with the following statements which grant VisionRx.com permission to use certain materials for purposes of publication on the CUSTOMER's website:
        1. General Release Statement (Exhibit A) containing the individual signatures of all associates, employees and patients whose photographs, illustrations or likenesses are to be published on the CUSTOMER's website for all purposes other than illustrative examples of medical case-studies or as "Before and After Results" of specific medical treatments or procedures; and
        2. Individual Release Statements (Exhibit B) containing the signatures of each person whose photographs, illustrations or likenesses, in whole person or in select body parts, are to be used as illustrative examples in medical case-studies or as "Before and After Results" of specific medical treatments or procedures.

  1. SERVICES PROVIDED

      1. Maintenance of CUSTOMER's VisionRxSite: As part of this agreement, VisionRx.com shall provide CUSTOMER with those services necessary to keep the CUSTOMER's VisionRxSite working in accordance with the information provided by the CUSTOMER in the VisionRxSite-Profile and to otherwise promptly correct programming errors. VisionRx.com will also make modifications to CUSTOMER's VisionRxSite to accommodate general changes in CUSTOMER's content such as changes in addresses or personnel names. General content changes shall be submitted to VisionRx.com by CUSTOMER in writing with a limitation of no more than a total of twelve (12) general content changes within the course of one (1) year. Should CUSTOMER exceed this limitation, each general content modification to CUSTOMER's website shall be subject to a fee of $75.00 per hour. VisionRx.com's website maintenance service providers will be the sole judges of what constitutes a general content change to CUSTOMER's VisionRxSite and will inform CUSTOMER at the commencement of the request if this fee schedule will apply.
      2. Technical Assistance: As part of this agreement, VisionRx.com shall provide CUSTOMER with technical assistance for its VisionRxSite services with a limitation of no more than a total of twenty-five (25) technical support calls within the course of one (1) year. Should CUSTOMER exceed this limitation, each telephone call to VisionRx.com for the purpose of acquiring technical assistance shall be subject to a fee of $25.00 per call. VisionRx.com technical assistance service providers will be the sole judges of what constitutes a technical support call and will inform CUSTOMER at the commencement of the technical support call if this fee schedule will apply. If it is not possible to process a CUSTOMER's technical support call immediately due to the volume of calls, VisionRx.com reserves the right to call CUSTOMER back. Technical support calls will not be processed on our toll-free telephone numbers and requests for callbacks on the toll-free telephone numbers will not be honored.
      3. Enhancements: As part of this agreement, VisionRx.com shall also provide to CUSTOMER such enhancements, improvements, modifications and/or revisions to the VisionRxSite services which VisionRx.com may develop from time to time. VisionRx.com reserves the right to determine what constitutes an enhancement, improvement, modification and/or revision of the VisionRxSite service and what constitutes a new service which VisionRx.com shall not be obligated to provide to CUSTOMER under the terms of this agreement.

  1. LIMITATIONS ON SERVICE

      1. VisionRx.com shall not be obligated to provide maintenance services for any of the following reasons:
        1. Modifications, revisions, enhancements, or corrections to CUSTOMER's VisionRxSite outside of the scope of general content changes (i.e. custom programming, additional website pages, etc.); and/or
        2. Modifications, revisions, enhancements, or corrections of CUSTOMER's VisionRxSite by anyone other than VisionRx.com's employees, agents or independent contractors, with or without the permission of CUSTOMER and without the expressed written permission of VisionRx.com; and/or
        3. Failure of anyone viewing the CUSTOMER's VisionRxSite to use the website in accordance with the operation of an industry-standard internet web-browser.
      2. All services performed by VisionRx.com pursuant to this agreement shall be performed at such location as VisionRx.com may, from time to time, determine and shall be performed or provided during the hours of 9:00 A.M. to 5:00 P.M., Eastern United States Time Zone, Monday through Friday, except VisionRx.com website and technical assistance service providers holidays.

  1. WARRANTIES

VisionRx.com offers no warranties of any kind whatsoever and does not claim that the appearance of the CUSTOMER's VisionRxSite will meet the CUSTOMER's requirements or that the operation of the VisionRxSite will be either error free or appear precisely as described in the VisionRxSite-Profile or any of VisionRx.com's websites or promotional materials. VisionRx.com shall not be held liable for any claims, damages or loss of profits which may be suffered by CUSTOMER or any other entity in any respect for direct, indirect, consequential, actual, or punitive damages arising out of or in relation to the services provided herein, including, but not limited to, losses or damages resulting from the loss of data as the result of delays, nondeliveries, or service interruptions. VisionRx.com disclaims any other warranties, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.

  1. INFORMATION

The use of any data or information received by CUSTOMER or any other individual from the utilization of the VisionRxSite services to be provided by VisionRx.com is at the CUSTOMER's sole and absolute risk. VisionRx.com specifically disclaims and denies any responsibility for the completeness, accuracy or quality of information obtained through the services to be provided hereby.

  1. TERM, RIGHT TO REFUSE PUBLICATION & TERMINATION

      1. This agreement is perpetual in nature and shall remain effective unless terminated sooner in accordance with the terms of this section. CUSTOMER shall have the right to terminate this agreement at any time by giving VisionRx.com at least thirty (30) days written notice in accordance with this agreement.
      2. VisionRx.com shall have the right to terminate this agreement at any time by giving CUSTOMER at least thirty (30) days written notice in accordance with this agreement. Upon such termination VisionRx.com will refund to CUSTOMER the prorated balance of any services which had been prepaid by CUSTOMER.
      3. VisionRx.com reserves the right to refuse to publish or host, or to discontinue hosting any website which contains subject matter which it considers in its sole discretion to be inappropriate or unprofessional.
      4. VisionRx.com reserves the right to discontinue hosting without liability any website which it believes is being utilized for unlawful purposes by the CUSTOMER.
      5. VisionRx.com shall have the right to immediately terminate this agreement and to suspend or discontinue hosting upon the occurrence of any of the following events:
        1. CUSTOMER's failure to pay any sums to VisionRx.com as provided in this agreement within thirty (30) days after the due date.
        2. CUSTOMER's failure to perform any obligation (other than the payment of money) required of it by this agreement; or to otherwise abide by the terms and conditions of this agreement.
        3. CUSTOMER committing any act of bankruptcy, or any proceeding in bankruptcy, insolvency, reorganization or receivership.
        4. CUSTOMER's attempt to correct, modify, enhance or revise its website without first obtaining VisionRx.com's written permission.

  1. CHARGES, PAYMENTS & CANCELLATIONS

      1. For the website publishing and hosting services provided by VisionRx.com pursuant to this agreement, CUSTOMER shall pay VisionRx.com the monthly charges which are applicable to the type of VisionRxSite. Charges for the above-described items are listed on the VisionRxSite Price List currently in effect and which is viewable online at VisionRx.com's website at http://www.VisionRx.com. All VisionRxSite setup fees and maintenance charges for each month shall be billed in advance.
      2. For all additional services provided by VisionRx.com, CUSTOMER shall pay VisionRx.com the rates for such services in effect at the time services are provided and such charges may be billed at the time services are rendered.
      3. CUSTOMER hereby authorizes VisionRx.com to charge all fees and other charges payable by CUSTOMER to VisionRx.com under this agreement to CUSTOMER's Visa, Master Card or American Express card number on file with VisionRx.com. CUSTOMER agrees to promptly notify VisionRx.com of changes to: (a) the account number or expiration date of CUSTOMER's designated card; and b) CUSTOMER's billing address. CUSTOMER must also promptly notify VisionRx.com if CUSTOMER's card is canceled (e.g., for loss or theft).
      4. VisionRx.com will provide CUSTOMER with an email or access to an online statement of charges on CUSTOMER's account as and when such charges are incurred and/or paid: however, any failure of VisionRx.com to provide CUSTOMER with an email or online statement does not affect CUSTOMER's responsibility to pay any incurred charges. Unless CUSTOMER notifies VisionRx.com of any discrepancies or irregularities within seventy-five (75) days after they first appear by email to CUSTOMER or in CUSTOMER's online account statement, they will be deemed accepted by CUSTOMER for all purposes, including resolution of inquiries made by CUSTOMER's card issuer.
      5. If payment is not received by VisionRx.com from CUSTOMER's card issuer or its agents, CUSTOMER agrees to pay all amounts due upon demand by VisionRx.com. Each time CUSTOMER uses its VisionRxSite services, CUSTOMER agrees and reaffirms that VisionRx.com is authorized to charge CUSTOMER's designated card. CUSTOMER's card issuer's agreement governs CUSTOMER's use of CUSTOMER's designated card in connection with VisionRx.com, and CUSTOMER must refer to such agreement (not this Agreement) with respect to CUSTOMER's rights and liabilities as a cardholder. CUSTOMER agrees that VisionRx.com may (at its option) accumulate charges incurred during CUSTOMER's billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that VisionRx.com may delay obtaining authorization from CUSTOMER's card issuer until submission of the accumulated charge(s). This means that accumulated charges may appear on the statement CUSTOMER receive from CUSTOMER's card issuer. CUSTOMER agrees that if CUSTOMER wants to see the components of accumulated charges, CUSTOMER will review CUSTOMER's email or online statement of charges, as described above.
      6. VisionRx.com reserves the right to suspend or terminate CUSTOMER's website without notice upon rejection of any card charges or if CUSTOMER's card issuer (or its agent or affiliate) seeks return of payments previously made to VisionRx.com when VisionRx.com in good faith believes CUSTOMER is liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to VisionRx.com. The amount due VisionRx.com must be paid in full by CUSTOMER's card issuer within thirty (30) days of the billing date; CUSTOMER is not entitled to carry-over a balance with VisionRx.com (although CUSTOMER might be entitled to do so with CUSTOMER's card issuer).
      7. The charges for this agreement or for any services performed by VisionRx.com for CUSTOMER do not include Federal, State or local taxes. Payment of these taxes is the sole responsibility of the CUSTOMER. Should VisionRx.com pay any taxes on the CUSTOMER's behalf, VisionRx.com shall bill CUSTOMER for the amounts paid and CUSTOMER shall pay VisionRx.com the amount billed within twenty (20) days after billing date unless payment is made by charge to CUSTOMER's credit card.
      8. CUSTOMER cancellations after the VisionRxSite-Profile has been received and webspace has been setup will continue to hold the CUSTOMER responsible for all costs incurred by VisionRx.com concerning the setup of the CUSTOMER's web space. All cancellations must be in accordance with VisionRx.com's published Billing Policies which are viewable online at VisionRx.com's website at http://www.VisionRx.com. All cancellations shall be in writing and delivered via postal mail, courier or by facsimile to the Billing Department of VisionRx.com with telephonic confirmation.

  1. PROPRIETARY NATURE OF VisionRxSite

CUSTOMER acknowledges that any information concerning VisionRx.com's VisionRxSite services not generally known by or disclosed to the public, including but not limited to, computer programs, source code, algorithms and inventions are the property of VisionRx.com and may not be utilized or released without the express written permission of VisionRx.com. Any enhancements, improvements, modifications and/or revisions to CUSTOMER's VisionRxSite which are developed by VisionRx.com in the performance of the services required by this agreement shall be the sole property of VisionRx.com and may be sold, offered, used or licensed by VisionRx.com on such terms and conditions as VisionRx.com sees fit.

  1. CHANGES IN TERMS OF AGREEMENT

VisionRx.com reserves the right to make changes to the terms and conditions of this agreement at any time including changes in service pricing by advising CUSTOMER of the changes and the effective dates thereof, but with changes in service fees being effective only at the end of any period for which the CUSTOMER has prepaid. Utilization of the VisionRxSite services by the CUSTOMER following the effective date of such change shall constitute acceptance by CUSTOMER of such change(s).

  1. ENTIRE AGREEMENT AND UNDERSTANDING

This agreement constitutes the entire agreement between VisionRx.com and CUSTOMER, and represents the complete and entire understanding of the parties with respect to the subject matter of this agreement. Any and all modifications of this agreement must be made in writing and signed by both VisionRx.com and CUSTOMER.

  1. SEVERABILITY

In the event that any term or provision of this agreement is held by a court of competent jurisdiction to be illegal, unenforceable or invalid in whole or in part for any reason, the remaining provisions of this agreement shall remain in full force and effect.

  1. INTERPRETATION

The format, words and phrases used herein shall have the meaning generally understood in the Telecommunications/Software/Internet Industries.

  1. FORCE MAJEURE

VisionRx.com shall not be liable for delays or failure to perform under this agreement caused by Acts of God, government, labor difficulties, fire, flood, power failure or acts beyond reasonable control of VisionRx.com. This agreement is governed by the laws of the State of New York in the United States of America.

  1. WRITTEN NOTICE

Any notice required to be given in writing under this agreement must be sent by first class US Certified or Registered Mail, postage prepaid, return receipt requested or by recognized courier service with package delivery tracking or by confirmed facsimile addressed to either party at the address set forth in this agreement or in a written notice in accordance with this agreement to the other party to that effect.

16. JURISDICTION

CUSTOMER agrees to submit to the exclusive legal jurisdiction and venues of the Courts of Westchester County, New York and the United States District Court for the Southern District of New York with respect to these matters.

Return To: VisionRx.com Inc. (VisionRx.com)

VisionRx.com Inc.

200 Clearbrook Road

Elmsford, NY 10523

Main: (914) 345-1800

Fax: (914) 345-1801

_______________________________________________

By: James J. Laux

VisionRx.com Inc.

Vice President, Marketing & Sales

Received By VisionRx.com: CUSTOMER

 

By: _______________________________________________

(Authorized Signature)

_______________________________________________

(Please Print Full Name)

_______________________________________________

(Please Print Title)

 

Exhibit A

General Image Release

Each of the persons signing below ("Releasors") agrees that ______________________ ("Customer"), VisionRx.com and its subcontractors may rely upon this release in the conduct of their businesses. Each Releasor hereby grants to Customer, VisionRx.com and its subcontractors the perpetual right to publish or use the Releasor's photograph or image in all forms including portions, composites, likenesses, distortions or alterations, on Customer's website for any and all purposes, including but not limited to advertising, promotion and information about Customer's business and services, but not including illustrative examples of medical case-studies or as "Before and After Results" of specific medical treatments or procedures.

Each Releasor certifies that: he/she has full legal capacity to sign this release, he/she is at least 18 years of age and this release has been signed knowingly and voluntarily.

Releasors:

 

___________________________ ____________________________ ___/___/___

(signature) (print name) (date)

 

___________________________ ____________________________ ___/___/___

(signature) (print name) (date)

 

___________________________ ____________________________ ___/___/___

(signature) (print name) (date)

 

___________________________ ____________________________ ___/___/___

(signature) (print name) (date)

 

___________________________ ____________________________ ___/___/___

(signature) (print name) (date)

 

___________________________ ____________________________ ___/___/___

(signature) (print name) (date)

 

___________________________ ____________________________ ___/___/___

(signature) (print name) (date)

 

 

 

 

 

 

 

Exhibit B

Individual Image Release

The undersigned ("Releasor") agrees that ______________________ ("Customer"), VisionRx.com and its subcontractors may rely upon this release in the conduct of their businesses. The Releasor hereby grants to Customer, VisionRx.com and its subcontractors the perpetual right to publish or use the Releasor's photograph or image, in whole person or in select body parts, in all forms including portions, composites, likenesses, distortions or alterations, on Customer's website as illustrative examples in medical case-studies or as "Before and After Results" of specific medical treatments or procedures.

The Releasor certifies that: he/she has full legal capacity to sign this release, he/she is at least 18 years of age and this release has been signed knowingly and voluntarily.

Releasors:

 

___________________________ ____________________________ ___/___/___

(signature) (print name) (date)