Terms & Conditions

Last Updated: May 1st, 2024

Website Usage

By accessing and using our website, you agree to comply with these Terms & Conditions.

You must be of legal age or have parental consent to use our services.

Intellectual Property

All content on our website, including text, graphics, images, and logos, is protected by copyright and other intellectual property laws.

You may not reproduce, distribute, modify, or create derivative works of our content without prior written consent.

Limitation of Liability

We strive to provide accurate and up-to-date information, but we do not guarantee the completeness, accuracy, or reliability of our content.

We shall not be liable for any direct, indirect, incidental, consequential, or punitive damages arising out of your use or inability to use our website.

Indemnification

You agree to indemnify and hold Functional Providers Network harmless from any claims, losses, damages, expenses, or liabilities arising from your use of our website or violation of these Terms & Conditions.

User Responsibilities

You agree to use the SMS communications provided by Functional Providers Network for lawful purposes and not to engage in misuse or abuse of the service.

Opt-In and Opt-Out Confirmation

Your provision of a phone number and opting in for SMS communications constitutes your express consent to receive such messages. You acknowledge that opting in is voluntary and may incur standard message and data rates.

You may also opt-out in receiving SMS messages by replying 'STOP' to any message received. You'll receive a confirmation message upon opting out. If you wish to resume receiving messages, reply 'START' to restart.

Modifications and Updates

Functional Providers Network reserves the right to modify, suspend, or terminate SMS services or these terms at any time without prior notice.

Changes to Terms & Conditions will be effective upon posting.

Vendor Agreement

THIS PROVIDER AGREEMENT between FUNCTIONAL PROVIDERS NETWORK, LLC ("FPN") and (“Clinic” or “Provider”) (Each a “Party” and together the “Parties”)

a. FPN is the developer and seller of the PeakHealth247 (“Marketplace”), Apex Alliance Media (“Apex”), “DNA Regimen” and Top Choice Tech (“TCT”); and

b. Collectively, the above-described services and applications are referred to as “FPN”; and

c. Provider has experience and expertise in marketing medical, health and wellness products and services to consumers; and

e. FPN wishes to grow its market in the United States by creating a strategic partnership with Provider, to market the Marketplace, DNA Regimen and various vendor offerings to clients of Provider; and

f. Provider wishes to provide certain services and to use its commercially reasonable best efforts to market FPN’s Marketplace, DNA Regimen and various vendor offerings to clients of Provider;

Now therefore, in consideration of the mutual promises contained herein, it is hereby agreed as follows:

1. DEFINITIONS:

(a) "Confidential Information" means the confidential and/or proprietary information of FPN (whether such information is or is not marked or identified as confidential or proprietary), including software (in object and source code form), inventions (whether or not patentable), trade secrets, ideas, know-how, techniques, processes, formulas, algorithms, schematics, research, development, software design and architecture, testing procedures, design and functional specifications, problem reports and performance information, marketing and financial plans and data. "Confidential Information" does not include information that either Party can show through documentary evidence: (a) is or becomes publicly known through no fault, act or omission of the other Party; (b) is known by or in the possession of a either Party prior to its receipt from the other Party; or (c) is lawfully obtained from a third Party who rightfully possesses the information (without confidentiality or proprietary restriction) and who did not receive it, directly or indirectly, from either Party.

(b) "Documentation" means the standard end user documentation for FPN Platform Services under any name that the platform may be marketed and sold.

(d) “End User License” means FPN’s standard end user license agreement for the Licensed Software, as modified from time to time by FPN, in its sole discretion.

(e) "Intellectual Property Rights" means all present and future copyrights, trademark rights, service mark rights, trade secret rights, patent rights, moral rights, and other intellectual property and proprietary rights recognized in any jurisdiction.

(f) "Licensed Software" means software that is subject to FPN’s standard end user license agreement for the Licensed Software.

(g) “Software as a Service” means applications provided by FPN through its websites, such that the end-user does not download or maintain any of the computer code, but that the computer code remains on FPN’s computer servers which are accessed by the end-user through the Internet, with resulting end-user specific data either maintained on FPN’s computer servers or exported to the end-user for storage as specified in the Terms of Use for the specific application.

(h) "Term" shall have the meaning set forth in Section 9.

(i) "Territory" means the 5-mile radius surrounding each Clinic location covered under this Agreement. If the Clinic operates multiple locations, each address must be listed in Schedule A, which shall be attached to and incorporated into this Agreement. The exclusivity granted applies collectively to all listed locations, ensuring that no other clinics within the designated Territory are granted the same rights under this Agreement.

(j) “FPN” or “FPN Platform” shall mean any iteration or permutation of the core offerings marketed by FPN.

(k) “Product” shall mean the FPN Platform as above defined. (l) “Client” shall mean any customer of the Provider.

2. APPOINTMENT:

2.1 Appointment. Subject to the terms and conditions set forth herein, FPN hereby appoints Provider as its independent, authorized, exclusive Provider of FPN in the Territory during the Term, and Provider hereby accepts such appointment. FPN retains all rights to approve any and all agreements which Provider wishes to make FPN a Party to, and Provider agrees to obtain permission in a signed writing from FPN prior to binding FPN to any Agreements.

2.1.1 Sales. Provider agrees to use its commercially reasonable best efforts to promote and/or sell the FPN Platform to and throughout the Territory during the Term.

2.1.2 Consulting. During the Term of this Agreement, Provider agrees to provide consulting services to FPN as needed, which shall be more fully defined and agreed upon by the Parties on an ongoing and regular basis.

2.2 Restrictions on Use. Provider, during the term of this Agreement and for any renewal terms thereof and except as provided under this Agreement or through a mutual understanding of the Parties, shall not, either directly or indirectly: (i) modify, adapt, alter, translate, copy, perform and display (publicly or otherwise) or create derivative works based on the content of the FPN, (ii) sublicense, lease, rent, or loan the FPN Platform; (iii) transfer the rights granted under this Agreement or the intellectual property of FPN to any third Party without written consent of FPN; or (v) provide the use of the FPN Platform in any service bureau other than in the FPN web portal. Notwithstanding the foregoing it is understood and agreed to by the Parties that FPN may market and sell services of a similar nature that may be independently created, or licensed, by FPN.

2.3 IP Ownership. Subject to the terms and conditions of Section 2.4 below, FPN shall own all rights, title and interest, including all Intellectual Property Rights, in and to the FPN Platform under any of its names. All rights in and to the FPN Platform not expressly granted to Provider under this Agreement are reserved by FPN. Provider shall not remove, alter, or obscure any proprietary notices (including copyright notices) of FPN within the content of the FPN Platform. Provider shall take all reasonable measures to protect the Intellectual Property Rights of FPN in the FPN Platform.

2.4 Third Party Agreements. Certain software programs, or portions thereof, which are used by FPN to deliver the FPN Platform are subject to the terms and conditions of the General Public License, other similar open-source license agreements and other third-Party agreements (collectively, "Third Party Agreements") which contain terms that may expand (or restrict) Provider's rights to access certain portions of the FPN Platform (collectively, "Third Party Software"). The Third-Party Agreements may permit FPN and/or third Parties to copy, modify, redistribute and have access to the source code of the Third Party Software portions of the Licensed Software. Notwithstanding anything in this Agreement, to the extent the terms and conditions of the Third-Party Agreement are inconsistent with or contradictory to the terms and conditions of this Agreement, then the terms and conditions of the Third Party Agreements shall prevail and control, only insofar as they apply to any Third-Party Software included within the Platform.

3. TRADEMARK LICENSE:

3.1 Trademark License. FPN hereby grants Provider during the term of this Agreement a non-exclusive, non-transferable, non-sublicensable, right to use the FPN software trade names, trademarks, service names and similar proprietary marks as is reasonably necessary to perform its obligations under this Agreement; provided, however, that any promotional materials containing FPN’s proprietary marks will be subject to FPN prior written approval. FPN reserves all of its rights in the graphic image and text, any other images, our trade names and trademarks, and any intellectual property rights. FPN shall retain all right, title and interest, including ownership of copyright, for all programs, documentation, drawings and reports developed under this Agreement. Neither Party to this Agreement shall in any manner disparage the other Party or its products or services or portray the other Party or its products or services in a false, competitively adverse or poor light. Each Party will comply with the other Party's requests as to the use of the other Party's proprietary marks and will avoid any action that diminishes the value of such marks. Either Party's unauthorized use of the other Party's proprietary marks is strictly prohibited.

3.2 Restrictions on Use. Except as permitted in this Agreement, both Parties agree that it will not adopt or use as part or all of any corporate name, trade name, trademark, service mark, certification mark, any of the other Party’s Trademarks or other marks based on "FPN", “Apex”, “Marketplace” or “DNA Regimen” or any other designation confusingly similar to the Trademarks each Party individually owns or licenses from any Third Party. Parties agree that they will comply with all applicable laws and regulations pertaining to the proper use and designation of the Trademarks in a particular country.

4. SUPPORT OBLIGATIONS:

4.1 Support by FPN. FPN shall provide any necessary authority to effectuate the terms of this Agreement.

4.2 Support by Provider. Provider represents that Provider is duly licensed (where applicable) and has the qualifications, the experience and the ability to properly perform its obligations. Provider shall use commercially reasonable best efforts to perform the Services such that the results are satisfactory to both Parties. Provider shall devote the amount of time it deems necessary, in good faith, to the performance of the Services and to provide ongoing communication.

5. PRICING:

5.1 Network Membership. The Functional Providers Network membership fee (“Membership Fee”) has been waived for your clinic.

5.2 Peak Health Marketplace. The FPN Peak Health Marketplace (Provider View) is included in the FPN Membership at no additional cost to the Provider. The price of all offerings on the FPN Peak Health Marketplace are subject to change, and all such changes are made directly via the FPN Peak Health Marketplace.

5.3. DNA Regimen. DNA Regimen provides genetic testing, analysis, reporting and consultation services for Functional Providers Network members and their clients. DNA Regimen is available exclusively via the FPN Peak Health Marketplace, and the price of DNA Regimen for both the Provider and for Clients is subject to change.

5.4 Apex Alliance. Apex Alliance offers powerful advertising and marketing services to Functional Providers Network members at a member only discount. The pricing of Apex Alliance services is case-sensitive.

6. REMUNERATION:

6.1 Commission Structure.

FPN shall pay Provider a fixed percentage commission on all retail sales referred by Provider through the FPN Peak Health Marketplace. This commission applies to products, services, and equipment sold at retail pricing and attributed to the Provider’s clinic or referral. No commissions are paid on Provider’s own wholesale purchases.

The commission percentage is set by FPN and may be updated at FPN’s discretion with prior notice to Provider. Commission percentages may vary by category or vendor, but all commissions are calculated against the retail price at the time of sale.

6.2 Commission Payments.

Commissions will be paid to Provider on a monthly basis, within fifteen (15) days following the end of the calendar month in which revenues were received. Any disputes regarding commission payments must be submitted in writing within ten (10) business days of receipt. After this period, payments are considered accurate and accepted by the Provider.

6.3 Records and Transparency.

FPN maintains internal records of wholesale and retail pricing for all SKUs and uses these to calculate commissions. While a static commission schedule is not provided due to dynamic pricing and SKU-level variation, FPN agrees to make commission records available to the Provider upon reasonable written request for purposes of verification or audit.

7. AND WARRANTIES:

7.1 FPN Warranties. FPN warrants and represents to Provider that: (i) FPN has full power and capacity to make and carry out its obligations under this Agreement; (ii) its execution of this Agreement will not violate or conflict with any contract or other agreement to which it is a Party to or is otherwise bound by; (iii) that FPN shall use best efforts to provide service and sales support per software license, service level agreement; and (iv) does not violate or conflict with any applicable law.

7.2 Provider Warranties. Provider warrants and represents to FPN that: (i) Provider has full power and capacity to make and carry out its obligations under this Agreement; (ii) its execution of this Agreement will not violate or conflict with any contract or other agreement to which Provider is a Party to or is otherwise bound by; (iii) that Provider shall use best efforts to promote and use the FPN Platform under any name; and (iii) does not violate or conflict with any applicable law.

7.3 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES, IF ANY, MADE DIRECTLY TO PROVIDER, NEITHER FPN NOR FPN’S OFFICERS, OWNERS, AFFILIATES, AND/OR SUBSIDIARIES MAKE ANY WARRANTIES WITH RESPECT TO ANY PRODUCTS, LICENSE OR SERVICE, INCLUDING WITHOUT LIMITATION, THE FPN SOFTWARE, THE FPN TRADEMARKS, AND HEREBY DISCLAIM ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND

NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NEITHER FPN NOR FPN’S OFFICERS, OWNERS, AFFILIATES, AND/OR SUBSIDIARIES WARRANT THAT THE FPN PLATFORM, OR ANY INDIVIDUAL OR BUNDLED PRODUCTS, OR ANY FPN’S SERVICES SHALL MEET END USER REQUIREMENTS, OR THAT THE OPERATION OF SUCH SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, IN NO EVENT SHALL EITHER Party’s AGGREGATE LIABILITY ARISING UNDER, OR WITH RESPECT TO OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL MONIES PAID BY FPN TO FPN UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LIABILITY ARISES.

7.4 DAMAGES. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY OR OTHERWISE, FPN NOR PROVIDER SHALL IN NO EVENT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY OR OTHER LEGAL, CONTRACTUAL OR EQUITABLE THEORY FOR: (i) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER OR NOT ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) DAMAGES FOR LOST PROFITS OR LOST DATA; OR (iii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES.

8. TERM AND TERMINATION:

8.1 Term. This Agreement shall commence on the date that both FPN and Provider sign this Agreement ("Effective Date") and will remain in full force and effect for an initial trial term of 1 (one) year ("Term") and shall auto-renew for a term of 1 (one) year each year thereafter except or until terminated by either Party.

8.2 Termination. Either Party may terminate this Agreement for any reason and such termination shall be effective immediately upon the receipt of written notice.

8.3 Rights Upon Termination; Survival. Upon any termination or expiration of this Agreement: (i) Provider shall cease to be an authorized Provider of FPN and all rights granted to Provider hereunder shall cease; (ii) Provider shall immediately: (a) cease all use and distribution of the FPN Platform under any of its names; (b) discontinue any use of any FPN properties; (c) discontinue the use of any permutation of FPN trademarks; (c) cease to promote, solicit or procure orders for the FPN Platform; and (iii) return the Confidential Information and all related materials and copies thereof to FPN. In addition to the foregoing, both Parties agree that they shall not, following termination of this Agreement, act in any way to damage the reputation or goodwill of the other Party.

The Provider’s Commissions on all sales made before the date of termination or expiration shall survive termination or expiration and shall continue for so long as each account remains active without interruption due to account holder non-payment or failure to renew.

9. INDEMNIFICATION:

Both FPN and Provider shall defend, indemnify and hold the other Party, its officers, directors, agents and employees harmless against any and all claims, suits, proceedings, damages, judgments and expenses (including reasonable attorneys' fees) or settlement thereof in connection with or arising from any third Party claim based upon:(a) any Client or Business Member’s use or distribution of the FPN Platform or its products not in strict accordance with this Agreement; (b) any warranties or representations made by the other Party which may differ from those otherwise provided by either FPN or Provider; or (c) injuries or damage to persons or property caused or claimed to have been caused by the negligent acts, errors or omissions of either Party’s agents while in the course of performing under this Agreement. Either Party may, at its option, join in the defense or settlement of any such claim with counsel of its choice, at its own expense.

10. CONFIDENTIALITY:

Both FPN and Provider shall protect the Confidential Information from unauthorized dissemination and shall use the same degree of care that each Party uses to protect its own information, but in no event less than a reasonable degree of care as defined as that care taken by similarly situated Parties. Neither FPN nor Provider shall disclose to any third Party the Confidential Information without having received the prior written consent of the other Party. Each Party shall use any Confidential Information only for purposes of performing its obligations or exercising its rights under this Agreement. Notwithstanding the foregoing, either Party may use or disclose the Confidential Information to the extent they may be legally compelled to do so provided that, prior to any such compelled disclosure, they shall notify the other Party and fully cooperate with the other Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. The Parties each agree that any breach of this Section would cause irreparable harm to the other Party for which monetary damages would not be adequate and, therefore, each Party agrees that, in the event of a breach of this Section 10, the other Party shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law.

11. NON-SOLICITATION:

11.1 Non-Solicitation of FPN or their Business Members. Provider on behalf of itself and on behalf of all of its affiliates, agents, or any other third Parties agrees that, during the term of this Agreement and for a period of two (2) years immediately following the expiration of this Agreement or the termination of this Agreement for any reason, none of them shall, directly or indirectly, on their own behalf or on behalf of any other person or entity, solicit, any Participating Association nor, during the term hereof and for such two (2) year period, shall induce or attempt to induce any such Participating entities to terminate, diminish or alter its agreements or relationships with FPN or affiliate thereof without the prior written approval of FPN.

11.2 Employee Non-Solicitation by Provider. Provider, on behalf of itself and on behalf of all of its affiliates, agrees that, during the term of this Agreement and for a period of two (2) years immediately following the expiration of this Agreement or the termination of this Agreement for any reason, none of them shall, directly or indirectly, on their own behalf or on behalf of any other person or entity, solicit, recruit, hire or retain, or assist others in soliciting, recruiting, hiring or retaining, any person who is or has been at any time during the preceding six months an employee, agent or representative of FPN or an affiliate thereof, nor, during the term hereof and for such two (2) year period, shall induce or attempt to induce any such person to terminate, diminish or alter his or her agreements or relationships with FPN or affiliate thereof without the prior written approval of FPN.

12. COMPLIANCE WITH LAWS:

13. GOVERNING LAW:

This Agreement is to be construed in accordance with and governed by the internal laws of the State of Texas without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Texas to the rights and duties of the Parties. Any dispute regarding this Agreement shall be subject to the jurisdiction of the state courts in Texas, and the Parties hereby irrevocably agree to submit to the personal and exclusive jurisdiction and venue of such courts. This Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

14. NOTICE:

Any notice required or permitted to be given under this Agreement if delivered (i) by hand and shall be effective on the date of delivery, (ii) by registered or certified mail, postage prepaid, return receipt requested iii) by overnight courier with proof of delivery, (iv) by email with confirming letter mailed under the conditions described in (ii) or (iii) above, and shall be effective upon receipt, or (v) by fax with confirming letter mailed under the conditions described in (ii) or (iii) above, and shall be effective upon receipt. All notices must be given at:

If to FPN:

500 W 2nd St., Suite 1900
Austin TX 78701

15. ASSIGNMENT:

Except in the event of a sale of all or substantially all of the assets of either Party, this Agreement may not be assigned, in whole or in part, by either Party without the prior written consent of the other Party, which shall not be unreasonably withheld. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.

16. FORCE MAJEURE:

Any delay in the performance of any duties or obligations of either Party (except the payment of money) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, act of terrorism, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to perform or, where performance is impossible, to otherwise notify the other Party of the circumstances and to resume performance as soon as possible.

17. INDEPENDENT CONTRACTORS:

The relationship of FPN and Provider established by this Agreement is that of independent contractors, and neither Party is an employee, agent, partner or joint venturer of the other.

18. PUBLICITY; PRESS RELEASES:

Neither FPN nor Provider shall be permitted to use the name of the other Party in publicity releases, advertising, or similar activities without the prior written consent of the other Party.

19. COUNTERPARTS:

This Agreement and amendments may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall be deemed a single instrument.

20. MISCELLANEOUS:

This Agreement constitutes the entire understanding of the Parties with respect to the subject matter of this Agreement and supersedes all prior communications, understandings, and agreements, written or oral. This Agreement may be modified only by a written agreement signed by both Parties. The failure of either Party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such Party thereafter to enforce any provision hereof. If any provision specified in this Agreement shall be invalid under any applicable law, the invalid provision, or portion thereof, shall be struck and the remainder, if any, shall be deemed enforceable to the extent permitted under applicable law, and the remaining provisions of this Agreement shall be given effect in accordance with their terms.