SIMPLE CREMATION SERVICES USA

REFERRAL SERVICES AND LICENSE AGREEMENT

THIS REFERRAL SERVICES AND LICENSE AGREEMENT (the "Agreement") is a binding contract between WILLOW ENTERPRISES, LLC, d/b/a Simple Cremation Services USA or Simple Cremation, a New Jersey limited liability company (hereinafter “SCS"), and you (“Funeral Home" or “You”). This Agreement governs your access and use of the Website (as defined below) and your relationship with SCS.

BY CLICKING THE "I ACCEPT" BUTTON BELOW, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.

WITNESSETH

WHEREAS, SCS has developed and is operating a proprietary web portal (the “Website”) that offers cremation arrangement services and products to consumers;

WHEREAS, SCS is assembling a network of funeral homes to which it will refer consumers who contact SCS, through the Website, seeking cremation arrangements and products (collectively, the “Cremation Services”); and

WHEREAS SCS wishes to appoint Funeral Home and Funeral Home wishes to be appointed by SCS as a non-exclusive authorized provider of Cremation Services to consumers who have contacted SCS.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises herein contained, the Parties hereby agree as follows:

1. FUNERAL HOME.

1.1 Appointment.

Upon the terms and conditions set forth in this Agreement, SCS hereby appoints Funeral Home, and Funeral Home hereby accepts such appointment, to be a non-exclusive authorized provider of Cremation Services to consumers referred to Funeral Home by SCS through the Website.

1.2 Process for Referrals to Funeral Homes.

Funeral Home acknowledges and understands that following a consumer inquiry, the Website provides a list of funeral homes in accordance with a proximity calculator which will determine one or more funeral homes’ proximity to the inquiring consumer in accordance with the applicable state, town, and zip codes, of which Funeral Home may be one (or of several who fit within this location criteria).

1.3 Promotion of Services.

Funeral Home shall use all reasonable efforts to maximize sales of the online cremation service arrangements through the Website.

2. TERM.

2.1 Initial Term.

This term of this Agreement commences when you acknowledge your acceptance of this Agreement by clicking the “I ACCEPT” button and will continue until terminated as set forth in this Section (the “Term”). Unless terminated sooner, either party may terminate this Agreement upon not less than ten (10) business days’ prior notice. SCS may immediately terminate or suspend this Agreement if Funeral Home violates any of the terms and conditions of this Agreement. Upon such termination, all right and license to use and access the Website and the Software (as hereinafter defined) shall terminate, effective immediately; provided, however, that Funeral Home shall continue to provide and complete all Cremation Services then under contract or agreement with, as of the date of termination, a customer in accordance with the agreed upon terms and conditions and shall be entitled to any Fee related thereto.

3. FEES.

3.1 Transaction Fees.

SCS shall pay the Funeral Home a fee of ninety (90%) percent of the total fees paid by the consumer to SCS for the Cremation Services (the “Fee”) and 100% of the cost of non-cash disbursements minus credit card costs from the total paid by the consumer to SCS for the Cremation Services. The remaining balance of the Fee shall be retained by SCS as an administration charge. Any change to the charge shall be subject to modification by SCS upon thirty (30) days prior written notice.

4. ADVERTISING AND PROMOTION.

4.1 Local Marketing Campaigns.

Although Funeral Home is not obligated to engage in separate marketing efforts, SCS strongly recommends that Funeral Home engage in local marketing and advertising campaigns, such as the SCS Targeted Digital Media campaign and other digital/non-digital media campaigns, as well as working with local hospice organizations, senior-related establishments, and professionals to target the local market that Funeral Home services.

4.2 Name and Logo Use.

For public and promotional purposes on the Website or in other forms of advertising, SCS may use the name and logo of Funeral Home at its reasonable discretion, subject to the prior consent of Funeral Home, which consent will not be unreasonably withheld.

4.3 Consultation.

SCS will use all reasonable efforts to answer questions concerning SCS that the Funeral Home may submit to SCS in connection with marketing, sales, and operations.

5. SOFTWARE LICENSE

5.1. Software License Grant.

Funeral Home acknowledges that SCS has developed the Website after much time and expense so that Funeral Homes can receive the referrals and the consumer information needed to carry out cremation services (hereinafter the “Software”). SCS hereby grants Funeral Home a non-exclusive, non-transferable license (the “License”) to use the Software in object code form through the Website only for the sole purpose of arranging and performing the Cremation Services for consumers referred by SCS or the Funeral Home as contemplated by this Agreement. Funeral Home acknowledges that the Software is intended for access and use by means of web browsing software and that SCS does not commit to supporting any particular browsing platform. SCS reserves the right at any time to revise and modify the Software, release subsequent versions thereof, and alter features, specifications, capabilities, functions, and other characteristics of the Software, all without notice to Funeral Home.

5.2 Requirements and Restrictions.

The Funeral Home agrees to strictly comply with the Requirements and Restrictions set forth in Exhibit A attached hereto with regard to the Software, the proprietary rights, and confidentiality obligations.

6. ADDITIONAL UNDERTAKINGS OF FUNERAL HOME; REPORTING.

6.1 Standards of Performance.

Funeral Home shall use its best efforts to (a) perform the Cremation Services in an effective, prompt, and professional manner that preserves, protects, and promotes SCS's brand image and business reputation and which is otherwise consistent with the industry’s best practices, and (b) promote the sales of online Direct Cremation Services through the Website in the manner as contemplated by this Agreement.

6.2 Compliance with Laws and Regulations.

At all times during the Term, Funeral Home shall act in strict compliance with all applicable laws, ordinances, regulations, and other requirements of any and all governmental, county, municipal, or other authorities, and obtain all permits, licenses, or other consents necessary for Funeral Home's performance of its duties under this Agreement.

6.3 Insurance.

Funeral Home represents and warrants that it has or will obtain professional liability insurance pertaining to the provision of Cremation Services to be provided by it hereunder prior to performing such services, and other insurance which it deems necessary and advisable and/or as may be required by any applicable law, rule or regulation and will provide SCS with proof of coverage, minimum insurance of $2,000,000.00, and name SCS as an additional insured and loss payee thereunder.

7. DEFAULT; TERMINATION.

7.1 Default.

This Agreement shall automatically terminate upon the occurrence of any of the following:

• A. If either party commences or institutes any case, proceeding or other action (i) seeking relief on its behalf as debtor, or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, or (ii) seeking appointment of a receiver, trustee, custodian or another similar official for it or for all or any substantial part of its property; or
• B. If either party makes a general assignment for the benefit of creditors; or
• C. If any case, proceeding or other action is commenced or instituted against either party
  • (i) seeking to have an order for relief entered against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, or
  • (ii) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, which either
    • (x) results in any such entry of an order for relief, adjudication of bankruptcy or insolvency or such an appointment or the issuance or entry of any other order having a similar effect or
    • (y) is not dismissed within a period of sixty (60) days; or
  • (iii) seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its property which results in the entry of an order for any such relief which is not vacated, discharged, or stayed or bonded pending appeal within sixty (60) s from the entry thereof; or
• D. If a trustee, receiver or other custodian is appointed for any substantial part of the assets of either party, which appointment is not vacated or effectively stayed within sixty (60) days.

7.2 Survival of Certain Obligations.

In the event of the termination of this Agreement, for any reason, any provision hereof (i) which, by its terms, shall or is intended to, survive the termination of this Agreement; or (ii) the survival of which is necessary to protect the SCS brand image and/or the SCS Confidential Information (as defined in Exhibit A).

8. LIABILITY.

8.1 Funeral Home's Indemnification.

Funeral Home shall defend, indemnify and hold SCS and its members, shareholders, employees, affiliates, agents and representatives harmless from and against any and all costs, expenses, claims, liabilities or demands including, without limitation, judgments, awards, fines, penalties, settlements and attorneys’ fees and expenses (collectively, “Liabilities”) relating or having to do with or arising from Funeral Home’s breach of this Agreement, the misuse of the Website, the operation of Funeral Home's business, including but not limited to the Cremation Services, and the solicitation of orders for Cremation Services hereunder, and any other conduct of Funeral Home, its agents or employees. Funeral Home shall promptly notify SCS, in writing, of all claims or demands against SCS after learning of any claim, demand or event which may give rise to a claim or demand for defending and indemnification under this Section 8.1. SCS reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of its choice. Funeral Home may not enter into any third-party agreement that would, in any manner whatsoever, constitute an admission of fault by SCS or bind SCS in any manner, without its prior written consent. In the event SCS assumes control of the defense of such claim, SCS will not settle any such claim requiring payment from Funeral Home without your prior written approval not to be unreasonably withheld.

8.2 SCS Indemnification.

SCS shall defend, indemnify and hold Funeral Home and its members, shareholders, employees, affiliates, agents and representatives harmless from and against any Liability arising or related to SCS’s breach of this Agreement or its performance hereunder. provided, however, that in no event shall the liability of SCS under this Section 8.2 or this Agreement exceed the aggregate amount of Fees received by SCS in connection with the Cremation Services performed by Funeral Home in the twelve (12) month period preceding the date in which the Liability arose, whether such Liability is found in contract or tort, (including, but not limited to, negligence, warranty, indemnification claims, or such claims asserted by any third party beneficiaries to this Agreement).

8.3 Warranty Disclaimer; Limitation of Liability. SCS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.   TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SCS BE LIABLE TO FUNERAL HOME OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR  ANY LOST PROFITS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE WEBSITE, THE SOFTWARE OR THIS AGREEMENT. ANY CLAIM FUNERAL HOME MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.

9. MISCELLANEOUS.

    9.1 Notices.  Any notices to SCS must be sent electronically to its corporate headquarters address at documents@simplecremationusa.com. Funeral Home hereby consents to receiving electronic communications from SCS. Funeral Home agrees that any notices, agreements, disclosures, or other communications that SCS sends to it electronically will satisfy any legal communication requirements, including that such communications be in writing.

    9.2   Force Majeure.  Neither SCS nor Funeral Home shall be liable for delay or failure in the performance of its duties under this Agreement arising out of any of the following causes: acts of God, war, acts of terrorism, insurrection, mob violence, civil commotion, riots, strikes, lockouts, labor disputes, fires, floods, earthquakes, epidemics, pandemic, quarantine restrictions, freight embargoes, changes in governmental policy, laws or regulations (including, but not limited to, imposition of quota or limitation of shipments), or any other cause or causes beyond the control of the party concerned, whether hereinabove specified or not.  All matters relating to the performance of the duties of the party affected by any such force majeure cause shall be determined by the mutual agreement between SCS and Funeral Home so that losses or damages caused by such force majeure clause may be mitigated to the maximum extent. The party suffering a force majeure Event shall give prompt notice of the force majeure event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such force majeure event are minimized.

    9.3 Relationship; Non-Agency.  The relationship between SCS and Funeral Home established by this Agreement is that of independent contractors.  Nothing in this Agreement shall be construed to constitute either party an agent or representative of the other party or to constitute the Parties as members of a joint venture or partnership, nor shall any similar relationship be deemed to exist between them.

    9.4 Consent Not Unreasonably Withheld.  Except as otherwise provided herein, whenever any consent, approval, action or authorization is required of either party hereunder, such consent, approval, action or authorization shall not be unreasonably withheld or delayed.

    9.5 Assignment.  This Agreement shall be binding upon and shall ensure to the benefit of the parties and their respective successors and assigns.  Except with the prior consent of the other party, which consent may be withheld in its sole discretion, this Agreement and/or the rights and obligations hereunder shall not be assignable by either party; provided, however, that SCS may assign its rights and obligations under this Agreement to a successor in interest by way of merger, acquisition, or sale of substantially all of its assets or equity.

    9.6 Modification.  No modification or claimed waiver of any of the provisions hereof shall be effective unless in writing and signed by the duly authorized officers or representatives of the parties.

    9.7 Severability.  If any provision of this Agreement shall be determined to be invalid or unenforceable by any arbitrators, any court of law or any governmental agencies, the remaining provisions shall be severable and enforceable in accordance with their terms so long as this Agreement, without such invalid or unenforceable provision, does not fail of its essential purpose or purposes.  The parties shall negotiate in good faith to replace any such substitute provisions, which will maintain the economic purposes and intentions of this Agreement.

    9.8 Waiver.  A waiver by either party of any particular default or breach by the other party shall not affect or prejudice the rights of the aggrieved party with respect to any other default or breach, whether of the same or of a different nature.

    9.9 Entire Agreement.  This Agreement, together with all Exhibits attached hereto, constitutes the entire agreement between the parties pertaining to the subject matter hereof, and supersedes all prior agreements and understandings, either written or oral, of the parties in connection therewith.

    9.10 Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, U.S.A. without giving effect to the conflicts of laws provisions thereof.

    9.11 Arbitration.  Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall, to the fullest extent permitted by law, be settled by arbitration in any forum and form agreed upon by the parties or, in the absence of such an agreement, under the auspices of the American Arbitration Association (“AAA”) in New Jersey in accordance with the Commercial Arbitration Rules of the AAA, including, but not limited to, the rules and procedures applicable to the selection of arbitrators.  Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  This Section 9.11 shall be specifically enforceable. Notwithstanding the foregoing, this Section 9.11 shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or a preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Section 9.11.  The prevailing party in a proceeding commenced with any dispute, claim or controversy arising out of or in connection with this Agreement shall be entitled to recover, in addition to any other relief awarded, the party’s reasonable costs and expenses, including attorneys’ and expert witness fees and disbursements, of preparing for and participating in any such proceeding. To the extent that any court action is permitted consistent with or to enforce this Section 9.11, the parties hereby agree that the federal and state courts of New Jersey shall have exclusive jurisdiction of such dispute.  Accordingly, with respect to any such court action, Company, Seller and Susan submit to the personal jurisdiction of such courts in the County of Union, City of Elizabeth, New Jersey.

    9.12 Expenses.  Except as otherwise specifically provided herein, each party shall bear its own expenses in connection with the transactions contemplated hereby.

    9.13 Headings.  Headings contained in this Agreement are solely for the convenience of the parties and shall not be deemed to or be used to define, constitute or limit any of the provisions hereof.

EXHIBIT A

SOFTWARE AND OPERATIONAL REQUIREMENTS AND RESTRICTIONS

A. Proprietary Rights; Confidentiality. SCS shall retain all rights, title, and interest (including intellectual property rights) in the Software and in all documentation and other materials distributed by SCS in conjunction with the installation or use of the Software (collectively the “Documentation”). The SCS names and logos, and all page headers and button icons are trademarks of SCS.

B. Restrictions. Except as otherwise expressly permitted in this Agreement, Funeral Home may not:

1. modify or create any derivative works of any Software or the Documentation;
2. decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software;
3. redistribute, encumber, sell, rent, lease, sublicense, use the Software in a timesharing or service bureau arrangement, or otherwise transfer rights to the Software;
4. copy the Software or Documentation;
5. remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software;
6. modify any header files or class libraries in any Software;
7. create or alter tables or reports relating to the database portion of the Software;
8. publish any results of benchmark tests run on any Software to a third party without SCS’s prior written consent;
9. use the database provided for use with any Software except in conjunction with the relevant Software.

C. Subject to the terms and conditions set forth in this Agreement, SCS hereby grants to the Funeral Home and the Funeral Home hereby accepts from SCS, the exclusive, non-transferable and non-assignable right and license to distribute and sell Cremation Services under the SCS brand as well as a royalty-free, non-exclusive, non-transferable license to use the Names and Marks solely for the purpose of selling such Cremation Services. The Funeral Home agrees to diligently exercise the rights and license granted hereunder subject to the terms and conditions of this Agreement.

D. The Funeral Home shall not, without SCS’s prior written consent, use, otherwise employ or permit the use or employment of any other trademark, trade name, service mark or commercial symbol in connection with the SCS Cremation Services, nor use or otherwise employ the Names and Marks except in connection with the sale and distribution of the SCS Cremation Services and in accordance with the terms and conditions of this Agreement. For purposes of this Agreement, "Names and Marks" means any and all names, insignias, labels, logos, commercial symbols, slogans, and other identification schemes, trademarks, service marks, and trade names and/or applications that may be controlled from time to time by SCS for use in association with the Cremation Services and the Website.

E. The Funeral Home acknowledges that neither this Agreement nor the operation of the Funeral Home's business shall in any way give or be deemed to give the Funeral Home any rights or interest in the Names and Marks except for the right to use the Names and Marks solely in connection with the distribution and sale of the Cremation Services and in accordance with the terms and conditions of this Agreement. The Funeral Home shall not use the Names and Marks or any contraction, variation or abbreviation thereof in any manner calculated to represent that it is the owner of the Names and Marks. The Funeral Home shall not, even after the termination or expiration of this Agreement, whether directly or indirectly, dispute or contest the validity or enforceability of the Names and Marks, attempt any registration thereof anywhere in the world, or in any fashion, dilute or attempt to dilute the value of any goodwill attaching to the Names and Marks. Any goodwill associated with the Names and Marks shall inure exclusively to the benefit of SCS.

F. Without limiting the generality of the foregoing provisions, the Funeral Home agrees that the Funeral Home will not use the Names and Marks except in accordance with the terms and conditions of this Agreement or as may otherwise be specifically authorized by SCS in writing.

G. The Funeral Home understands that the license to use the Names and Marks herein granted by SCS to the Funeral Home is exclusive only for use in connection with the sale of the Cremation Services through SCS and that only SCS has the right to use or to license others to use the Names and Marks. Funeral Home has no right or authority to sublicense or in any way convey a license to use the Names and Marks.

H. The Funeral Home will not use the Names and Marks in any manner which might endanger the validity of the Names and Marks or of the registration thereof. The Funeral Home shall use the Names and Marks only in the exact style as registered or, if not registered, as prescribed by SCS.

I. In the event that the Funeral Home learns of any infringement or threatened infringement or piracy of any of the Names and Marks or any actual or intended passing off by a third party, or that any third party alleges or claims or intends to allege or claim that any of the Names and Marks are liable to cause deception or confusion to the public or that any third party alleges or claims or intends to allege or claim that any of the Names and Marks infringe on its names and marks in any manner, the Funeral Home shall immediately give notice thereof to SCS together with all such information with respect thereof as it may from time to time obtain.

J. Covenants of Funeral Home. Funeral Home acknowledges that by reason of its relationship with SCS created hereunder, it may have access to SCS’s confidential information which shall include, but not be limited to the following (collectively, “Confidential Information”): information belonging to, used by, or in the possession of SCS relating to marketing and pricing plans, practices, procedures, and strategies; business plans, sales data, and policies; supplier identities and relationships; technologies; designs; developmental plans; production procedures and processes; computer programs and databases; computer systems; inventions; know-how; financial information; and other trade secrets and confidential information. Funeral Home acknowledges that the use or disclosure of such information would cause irreparable harm to SCS, and therefore agrees as follows:

1. During the Term and for a period of two (2) years after the termination of this Agreement, neither Funeral Home nor any employee, agent, or representative of Funeral Home shall, directly or indirectly, individually or as an employee, agent, or representative of any Person, corporation or other entity, produce, manufacture, market, advertise, sell or distribute or attempt to produce, manufacture, market, advertise, sell or distribute online Cremation Services, other than Cremation Services currently being distributed by Funeral Home for or on behalf of SCS.
2. Neither Funeral Home nor any employee, agent or representative of Funeral Home shall, directly or indirectly, individually or as an employee, agent or representative of any Person, corporation, or other entity, at any time in any way, directly or indirectly, divulge, furnish, or make accessible to any person, corporation or other entity, or use for its own benefit, any SCS Confidential Information, without SCS's prior written approval, which SCS may grant or withhold in SCS’s absolute discretion, or as otherwise required in connection with Funeral Home's performance under this Agreement. This covenant shall survive the termination of this Agreement for an indefinite period.
3. Funeral Home agrees that any breach of this Exhibit A will cause permanent and irreparable harm to SCS for which monetary damages alone will be inadequate to compensate SCS. Therefore, in the event of a breach or any threat of a breach of this Exhibit A by Funeral Home, SCS, without waiving any additional rights it may have at law, in equity or by statute, shall be entitled to seek injunctive relief in addition to any other relief to which it may be entitled without the necessity of posting of any bond or other security therefor. This remedy shall be in addition to any other remedy available to it at law or in equity. The prevailing party in any such action shall be entitled to attorney’s fees and expenses.

K. Exception. The obligations of Funeral Home regarding the protection of SCS’s Confidential Information shall not apply to any information which Funeral Home:

1. is already in the lawful possession of Funeral Home; or
2. is or becomes publicly known through no default of Funeral Home; or
3. is rightfully received by Funeral Home from a third party without accompanying secrecy obligations; or
4. is independently developed by Funeral Home without reliance on the Confidential Information as documented by the records of Funeral Home; or
5. is approved for release by prior written consent of SCS.