Platform Subscription Agreement
This Platform Subscription Agreement (“Agreement”) is entered into by and between Miiskin Group ApS (“Miiskin”), and the Miiskin PRO customer identified on the ordering website issued by Miiskin (“Customer” or “you”), for the provision of services through the Miiskin platform in accordance with the following terms and conditions.
BY ACCEPTING THIS AGREEMENT, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to the terms of this Agreement, Miiskin is not willing to grant any right to use or access the Platform to you. When used herein the term “Agreement” includes the body of this Agreement, all ordering documents, and all addendums, exhibits, and attachments hereto or referenced herein. In the event of any irreconcilable conflict between the following body of this Agreement and/or an ordering document, addendum, exhibit, schedule, or other attachment, the terms set forth in the body of this Agreement will govern, subject to the terms of the Business Associate Agreement at Attachment A. Miiskin and Customer may be referred to in this Agreement individually as a “Party” and together as the “Parties.”
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL HEREAFTER REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU ARE HEREBY NOT PERMITTED AND MAY NOT USE THE PLATFORM (OR ANY OTHER TECHNOLOGY, SERVICES, CONTENT, OR PRODUCTS OFFERED BY MIISKIN) IN ANY MANNER.
This Agreement shall commence upon Customer’s first use of the Platform (the “Effective Date”) and continue in full force until otherwise terminated in accordance with Section 12 (Termination) (the “Term”).
2.1. Platform Access. Subject to the terms and conditions of this Agreement, including Customer’s payment of all relevant fees, Miiskin grants to Customer a non-exclusive, non-transferable, non-sublicensable subscription for Customer and its End Users to access and use Miiskin’s hosted mobile application and platform (the “Platform”) and Documentation (as defined below) during the Term on a white label basis. The Platform provides Customer with a phone or web-based reporting method to allow Customer to offer and implement remote skin monitoring to customers or health care patients, as applicable, and receive monitoring data shared by such individuals. For purposes of this Agreement, “End Users” means Customer’s employees, contractors, representatives, clinicians, practitioners, and health care professionals, as applicable, providing dermatological services, cosmetic services, aesthetic services, and/or clinical care and the customers, patients, and other individuals receiving those services who are authorized to access and use the Platform on Customer’s behalf. Customer may, as agreed to in writing by Miiskin, offer access to the Platform to any affiliates, subsidiaries, parent corporations, or affiliate entities and Customer shall be responsible and liable for all access and use by such entities.
2.2. Restrictions. Customer and its End Users may only use the Platform as described in this Agreement and in the then-current documentation, specifications, and instructions regarding the Platform, including online help screens contained within the Platform, made generally available by Miiskin to its customers and modified from time to time (the “Documentation”). Customer is responsible for ensuring its End Users comply with all relevant terms of this Agreement, and any failure to comply will constitute a breach by Customer. Except as expressly authorized by this Agreement, Customer will not, and will not allow any End User or other third party to, (a) permit any third party to access or use the Platform other than an End User, (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets embodied in the Platform, except to the extent expressly permitted by applicable law, (c) use the Platform or any Miiskin Confidential Information to develop a competing product or service, (d) use the Platform, or allow the transfer, transmission, export, or re-export of the Platform or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency, or (e) remove, minimize, block, or modify any copyright, trademark, proprietary rights, disclaimer, digital watermark, or warning notice included on or embedded in any part of the Documentation or Platform, including any screen displays, or any other materials provided by Miiskin hereunder. Under no circumstances will Miiskin be liable or responsible for any use, or any results obtained by the use, of the Platform in conjunction with any content, services, software, or hardware that are not provided by Miiskin, including any services or advice provided by Customer and its applicable End Users, including health care services or medical advice where applicable. All such use will be at Customer’s sole risk and liability. Miiskin reserves the right to modify the Platform for any reason, without notice and without liability to Customer or any End User, to comply with applicable law.
2.3. Support; Subsequent Versions and New Products. During the Term, Miiskin will provide Customer with reasonable email support in connection with Customer’s authorized use of the Platform during Miiskin then-current business hours. Miiskin will use commercially reasonable efforts to correct reproducible failures of the Platform to perform in substantial accordance with its then current Documentation. If, during the Term, Miiskin makes available to its customers generally any future update, version, or release of the Platform, Miiskin shall provide the update, version, or release to Customer at no additional charge. For the avoidance of doubt, Miiskin may charge additional fees for functions, features, or modules not included in the version of the Platform marketed by Miiskin and provided to Customer as of the Effective Date of this Agreement.
2.4. Customer Responsibilities. Customer and its End Users shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Platform, including hardware, devices, software, operating systems, networking, web servers, telecommunication and Internet connections, and the like. Customer shall also be responsible for maintaining the security of the foregoing equipment and services and Customer login information, passwords, and files. Customer is responsible for all uses of Customer and End User accounts with or without Customer’s knowledge or consent.
2.5. Customer Data and Branded (White Label) Solution. Miiskin shall enable End Users to access the Platform in accordance with this Agreement via a Customer branded webpage and/or mobile application (“Branded Solution”). Customer grants Miiskin a non-exclusive, world-wide, royalty-free license to use Customer’s name, trademarks, logos, trade names, and service marks for inclusion in the Branded Solution. The Branded Solution will include such attribution as Miiskin may prescribe in Miiskin’s sole discretion (e.g. “powered by Miiskin”). The attribution will be placed in a location satisfactory to Miiskin in Miiskin’s sole discretion. Customer is responsible for all data Customer (or its End Users) places on the Platform (“Customer Data”) through the Branded Solution. Customer agrees that it is the information content provider for all Customer Data, and that pursuant to Section 230 of the Communications Decency Act, Miiskin shall not be treated as the publisher or speaker of any Customer Data. Miiskin does not endorse, approve, monitor, or vet any Customer Data placed on the Branded Solution or otherwise made available through Miiskin in any way. All Customer Data is the responsibility of Customer and its End Users, and Miiskin shall not be liable for any reason for anything posted by Customer or an End User or any Customer Data.
3. Platform Fees
3.1. Fees and Payment Terms. Customer agrees to pay Miiskin’s current access fee associated with the Platform, including the Branded Solution. The foregoing fees are not a portion of the professional or other service fees charged by Customer to patients or customers for the professional services. Fees are due regardless of whether or not Customer has collected fees from its customers, patients, or third-party payors, and shall not be subject to any offset or deduction of any kind for any reason related Customer’s collected fees. Except as specifically provided hereunder, all fees are non-refundable. All fees with respect to a Term shall be paid through Miiskin’s online payment solution and in accordance with Miiskin’s then-current payment terms. Payments not made in accordance with this Agreement will be subject to late charges equal to the lesser of (a) ten percent (10%) per annum (calculated and compounded on a monthly basis) of the overdue amount, or (b) the maximum amount permitted under applicable law. Miiskin may increase fees by providing thirty (30) days advanced notice to Customer prior to the commencement of the applicable fee increase.
3.2. Taxes. Customer shall be responsible for those sales, use, and similar taxes associated with its use of the Platform, excluding taxes based on Miiskin’s real property, personal property, income, or personnel.
3.3. Other Fees. Unless otherwise provided in this Agreement or in an ordering document that references this Agreement, payment for all other products or services provided by Miiskin shall be at Miiskin’s then current fees
4. Provision of Medical Advice or Services
Miiskin provides a technology platform for professional service providers, including health care professionals, and individuals to share data and solicit, analyze, and track certain skin conditions and symptoms. Notwithstanding anything contained herein to the contrary, the Parties acknowledge and agree that Miiskin does not, and shall not, provide health care, clinical, treatment, or diagnostic services and that Miiskin does not practice medicine. All clinical and health care planning, management and other health care decisions shall be made by the appropriate members of the Customer’s provider care team. Miiskin does not provide, and any use of the Platform by Customer or End User does not constitute, any medical advice, legal advice, or representations in any way regarding any legal or medical issues associated with Customer or End Users or goods or services offered or purchased by Customer or End Users, including any compliance obligations or steps necessary to comply with any international, federal, state, and local laws, statutes, regulations, and rules, or the directives, orders, policies, guidelines, and codes of practice and conduct issued by any government. Customer should seek legal counsel regarding any legal and compliance issues, and should not rely on any materials or content associated with the Platform or its Documentation in determining Customer’s compliance obligations under law. Customer and all End Users understand and agree Miiskin is not providing, and the use of the Platform does not amount to the provision of, medical services. Use of the Platform is not a substitute for medical treatment and does not guarantee any specific outcome. Without limiting the generality of the foregoing, Miiskin specifically disclaims and does not guarantee that use of the Platform will stop or slow the transmission of any disease or condition. Customer acknowledges and agrees that it and its End Users are responsible for obtaining their medical advice, including any medical advice or services related to any specific disease or condition.
5. Medical Records; Data Hosting and Storage; HIPAA
Customer is solely responsible for capturing and retaining any and all information regarding End Users that an End User transfers or makes accessible to Customer. Customer is solely responsible for creating, storing, and maintaining any and all records, including any digital images and including medical records to the extent Customer is a health care professional. The Parties agree that Miiskin bears no responsibility for maintaining or preserving any Customer Data, End User data, or data related to the services provided to Customer or End Users through or in connection with the Platform, including End User data provided to Customer through use of the Platform. Customer understands acknowledges and agrees it is solely responsible for preserving and making adequate backups of its data. Nothing in this Agreement limits or restricts Miiskin’s ability to create its own records of the data and services provided or accessed through the Platform to the fullest extent permitted by law. Miiskin and Customer each agree to comply with all applicable federal and state laws and regulations relating to the maintenance, uses, and disclosures of protected health information, including the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (collectively, the “HIPAA Regulations”) to the extent applicable to each Party. The Parties will comply with the Business Associate Agreement (“BAA”) at Attachment A to the extent Miiskin is functioning as a “business associate” to Customer. In the event of any conflict between the terms of this Agreement and those set forth in the BAA, the terms of the BAA shall prevail with respect to protected health information.
6. Billing and Collection
With respect to any service for which a claim for payment or reimbursement may be submitted to a patient, health plan, governmental agency, third party payer and/or other financially-responsible parties, Customer and not Miiskin shall have the sole and exclusive responsibility to bill and collect from such patients, health plans, governmental agencies, third party payers and other financially-responsible parties. Miiskin may not, and shall not, bill any patient, governmental agencies, or third party payer for Customer or any End User’s use of the Platform or the services rendered by or to Customer or any End User. In billing and collecting for services associated with the Platform, Customer shall be responsible for all billing, coding, documentation, claims submission, and collections associated with the Platform including the determination of whether or not the use of the Platform is covered by health plans, governmental agencies, third party payers, or other financially-responsible parties, to the extent applicable to Customer’s business and use of the Platform. Miiskin shall not be responsible to refund, offset, or indemnify Customer for any claim denials, audits, adjustments, or overpayments in connection with Customer’s billing related to the Platform. Customer shall comply with all billing laws, regulations, instructions, interpretative guidelines and other requirements established by governmental and commercial payers when billing for the Platform. Customer further agrees to hold Miiskin harmless and indemnify Miiskin from any responsibility or claim of any kind relating to Customer’s billing and collection of fees for the Platform.
7. Representations and Warranties
7.1. Customer Warranty. Customer represents and warrants that: (a) it has full power, capacity, and authority to enter into this Agreement and to grant the licenses set forth herein; (b) the Customer Data does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state, or local laws, rules, or regulations (including applicable policies and laws related to spamming, privacy, or consumer protection) (collectively, “Applicable Law”); (c) its use of the Platform will be in compliance with all Applicable Law; (d) neither Customer nor any End Users shall make any representations with respect to Miiskin, the Platform, or this Agreement (including that Miiskin is a warrantor or co-seller or provider of any Customer services); and (e) neither Customer nor any of its respective officers, directors, employees, or contractors is or has ever been: (i) convicted of a criminal offense related to health care or the provision of items and services payable by a federal or state health care program (for example, Medicare and Medicaid); (ii) assessed civil money penalties for an offense related to health care or to the provision of items or services payable by a federal or state health care program; (iii) excluded from participation in any federal or state health care program; or (iv) excluded by any federal agency from receiving federal contracts. Customer shall notify Miiskin immediately of any breach of any representation or warranty in this Section or any other Section under this Agreement or of any information or situation which could reasonably lead to a breach of this Section
7. 2. Miiskin Warranty. Miiskin represents and warrants that (a) it has the full power, capacity, and authority to enter into and perform this Agreement and to make the grant of rights contained herein, and (b) its performance of this Agreement shall not violate or conflict with any applicable law or any agreement to which Miiskin is a party.
7.3. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 7.2 (MIISKIN WARRANTY), THE PLATFORM IS PROVIDED “AS IS,” “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS PROVIDED IN SECTION 7.2 (MIISKIN WARRANTY), MIISKIN AND ITS VENDORS AND LICENSORS DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, QUALITY OF INFORMATION, OR NON-INFRINGEMENT. CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF THE PLATFORM IS AT CUSTOMER’S SOLE RISK. MIISKIN DOES NOT WARRANT THAT THE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE PLATFORM IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE, OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PLATFORM WILL BE CORRECTED. FURTHERMORE, MIISKIN DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, SECURITY, APPROPRIATENESS FOR A PARTICULAR TASK OR APPLICATION, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MIISKIN OR MIISKIN’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THE PLATFORM MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT MIISKIN AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (A) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA OR SOFTWARE MAY BE TRANSFERRED OVER THE INTERNET; AND (B) UNAUTHORIZED USERS SUCH AS HACKERS MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEBSITES, PROPERTIES, COMPUTERS, OR NETWORKS. MIISKIN WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. MIISKIN DOES NOT WARRANT ANY DATA PROVIDED BY MIISKIN OR THROUGH THE PLATFORM WILL BE ACCURATE OR COMPLETE. CUSTOMER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
8. Proprietary Rights; Customer Data
8.1. Platform. Customer acknowledges and agrees that (a) the Platform is protected by intellectual property rights, as applicable, of Miiskin and its vendors and licensors and that Customer has no right to transfer or reproduce the Platform or prepare any derivative works with respect to, or disclose Confidential Information pertaining to, the Platform or any part thereof, and (b) as between the Parties, Miiskin owns all right, title, and interest in and to the Platform and Documentation, including any changes or modifications made to the Platform, together with any and all ideas, processes, techniques, designs, architecture, user interfaces, and “know-how” embodying the Platform and any expert-developed content contained in or accessible through the Platform. Under no circumstances will Customer be deemed to receive title to any portion of the Platform, title to which at all times will vest exclusively in Miiskin. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code. Customer will preserve the Platform from any liens, encumbrances, and claims of any individual or entity. Customer will not use any Miiskin intellectual property, data, or Confidential Information to contest the validity of any intellectual property rights of Miiskin or its licensors, and any such use of the foregoing will constitute a material, non-curable breach of this Agreement.
8.2. Platform Data. As between Customer and Miiskin, Customer shall own all right, title, and interest in and to the Customer Data; however, with respect to patient or individual information and images the patient or individual maintains on the Platform, Customer owns only the copies of the information and images the patient or individual has affirmatively chosen to share with Customer unless otherwise prohibited by law. Customer grants Miiskin a non-exclusive, world-wide, royalty-free license to use the Customer Data for purposes of performing this Agreement. Customer shall retain a copy of Customer Data outside the Platform. Customer is responsible for obtaining all rights, permissions, and authorizations with respect to the Customer Data for use as contemplated under this Agreement. Customer acknowledges that Customer End Users may be required or prompted to affirmatively select whether to share certain data with Customer and Customer agrees that Miiskin shall have no obligation, responsibility, or liability whatsoever for an End User’s election to share (or not share) certain data with Customer through the Platform
8.3. Feedback. Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Miiskin with respect to Miiskin products and services. Feedback is voluntary and Miiskin is not required to hold it in confidence. Miiskin may use Feedback for any purpose without obligation of any kind. Miiskin may use any technical information it derives from providing its products and services relating to problem resolution, troubleshooting, product functionality, enhancements, and fixes, for its knowledge base. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants Miiskin an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Miiskin’s business, including the enhancement of Miiskin’s products and services.
8.4. Usage Data. Miiskin shall have the right to collect, copy, and analyze data and other information relating to the provision, use, and performance of various aspects of the Platform and related systems and technologies (including information concerning Customer Data and data derived therefrom), and Miiskin may (a) use such information and data to improve and enhance the Platform and for other development, diagnostic, and corrective purposes in connection with the Platform and other Miiskin offerings, and (b) disclose such data solely in aggregated or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
8.5. Third Party Data. The Platform and Documentation may contain material, data, or information provided by third parties (“Third Party Data”). Miiskin does not control Third Party Data and is not responsible for its content. Miiskin’s inclusion of Third Party Data in the Platform does not imply any endorsement of the information and Miiskin makes no representations or warranties with respect to any Third Party Data.
9.1. Confidential Information. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Miiskin includes non-public information regarding features, functionality, and performance of the Platform. The Receiving Party agrees: (a) to take reasonable precautions to protect Confidential Information, and (b) not to use (except in provision of the Platform, or as otherwise permitted herein) or divulge to any third person any Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, (iv) was independently developed without use of any Confidential Information of the Disclosing Party, or (v) is required to be disclosed by law, provided such disclosure is made in accordance with Section 9.2 (Compelled Disclosures). Each Party’s Confidential Information shall remain the sole and exclusive property of that Party.
9.2. Compelled Disclosures. To the extent required by applicable law or by lawful order or requirement of a court or governmental authority having competent jurisdiction over the Receiving Party, the Receiving Party may disclose Confidential Information in accordance with the law or order or requirement, subject to the following conditions: as soon as possible after becoming aware of the law, order or requirement and prior to disclosing Confidential Information pursuant thereto, the Receiving Party will so notify the Disclosing Party in writing and, if possible, the Receiving Party will provide the Disclosing Party notice not less than five (5) business days prior to the required disclosure. The Receiving Party will use reasonable efforts not to release Confidential Information pending the outcome of any measures taken by the Disclosing Party to contest, otherwise oppose or seek to limit such disclosure by the Receiving Party and any subsequent disclosure or use of Confidential Information that may result from such disclosure. The Receiving Party will cooperate with and provide assistance to the Disclosing Party regarding such measures. Notwithstanding any such compelled disclosure by the Receiving Party, such compelled disclosure will not otherwise affect the Receiving Party’s obligations hereunder with respect to Confidential Information so disclosed.
9.3. Non-Exclusive Equitable Remedy. Each Party acknowledges and agrees that due to the unique nature of Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a Party or third parties to unfairly compete with the other Party resulting in irreparable harm to such Party, and therefore, that upon any such breach or any threat thereof, each Party will be entitled to appropriate equitable remedies, and may seek injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity. Any breach of this Section 9 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching Party.
9.4. Return or Destruction of Confidential Information. Upon termination or expiration of this Agreement, at the Disclosing Party’s option, the Receiving Party shall return to the Disclosing Party or certify as destroyed all Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party will not be required to remove copies of the Disclosing Party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on Receiving Party by law or regulation.
10.1. By Miiskin. Miiskin agrees to defend, indemnify, and hold harmless Customer and its directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, investigation, proceeding, liability, loss, damage, fine, cost, or expense, including attorneys’ fees, experts’ fees, and court costs, arising out of any claim by a third party that Customer’s authorized use of the Platform infringes that third party’s United States patent, copyright, or trade secret. Customer shall: (a) give Miiskin prompt written notice of any claim; and (b) allow Miiskin to control, and fully cooperate with Miiskin (at Miiskin’s sole expense) in, the defense and all related negotiations. Miiskin shall not enter into any stipulated judgment or settlement that purports to bind Customer without Customer’s express written authorization, which shall not be unreasonably withheld or delayed. Miiskin shall have no obligation to indemnify Customer to the extent the claimed infringement arises from or is based on (i) the Customer Data, (ii) specifications provided by Customer or its agents, (iii) use of the Platform in combination with any hardware, software, products, data, or other materials not provided by Miiskin, (d) violation of law or this Agreement by Customer or any End Users, or (e) misuse of the Platform (the “Excluded Claims”). Customer agrees that if its use of the Platform becomes, or in Miiskin’s opinion is likely to become, the subject of an infringement claim, Customer shall permit Miiskin either to procure the right for Customer to continue to use the Platform or to replace or modify the Platform with technology of comparable quality and performance capabilities to become non-infringing. If in Miiskin’s sole discretion, neither alternative is reasonably possible, Miiskin may elect to immediately terminate this Agreement and return a prorated portion of any pre-paid, unused fees for the Platform. The provisions of this Section 10.1 (By Miiskin) state the sole and exclusive obligations and liability of Miiskin and its licensors and suppliers, and Customer’s sole and exclusive remedy for any claim of intellectual property infringement arising out of or relating to this Agreement, and are in lieu of any implied warranties of non-infringement and title, all of which are expressly disclaimed.
10.2. By Customer. Customer agrees to defend, indemnify, and hold harmless Miiskin and its directors, officers, agents, employees, members, subsidiaries, and successors in interest from and against any claim, action, investigation, proceeding, liability, loss, damage, fine, cost, or expense, including attorneys’ fees, experts’ fees, and court costs, arising out of (a) any claim by a third party that the Customer Data infringes the intellectual property, publicity, or privacy rights of any person, or (b) the Excluded Claims. Miiskin shall: (i) give Customer prompt written notice of any claim; and (ii) allow Customer to control, and fully cooperate with Customer (at Customer’s sole expense) in, the defense and all related negotiations. Customer shall not enter into any stipulated judgment or settlement that purports to bind Miiskin without Miiskin’s express written authorization, which shall not be unreasonably withheld or delayed.
11. Disclaimer of Consequential Damages; Limitation of Liability
IN NO EVENT SHALL MIISKIN, ITS VENDORS, OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF SALES, TRADING LOSSES, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF BUSINESS INFORMATION, OR OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE ARISING OUT OF OR CONNECTED IN ANY WAY WITH MIISKIN’S PERFORMANCE UNDER THIS AGREEMENT, OR USE OF OR INABILITY TO USE THE PLATFORM, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF MIISKIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF MIISKIN AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE PLATFORM IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, OR OTHERWISE), SHALL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY BY CUSTOMER FOR THE SERVICES OR PORTION OF THE PLATFORM GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
12.1. Termination. Either Party may terminate this Agreement for convenience and without cause upon seven (7) business days prior written notice. This Agreement may also be terminated upon written notice by either Party, immediately, if either Party is listed by a federal agency as being disbarred, excluded, terminated, or otherwise ineligible for federal program participation.
12.2. Suspension. Miiskin may, in its sole discretion, immediately suspend or terminate Customer’s access to the Platform for any of the following reasons: (a) to prevent damages or risk to, or degradation of, the Platform; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Miiskin from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) days from the invoice date. Miiskin will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension. Miiskin will promptly restore access to the Platform as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Miiskin to monitor use of the Platform.
12.3. Effect of Termination. Upon termination of this Agreement for any reason: (a) Customer and all End Users’ access to and use of the Platform and Documentation will cease as of the effective date of termination; (b) Miiskin will cease to provide the Platform; and (c) Customer will pay to Miiskin all fees due to Miiskin incurred hereunder through the end of the calendar month in which termination occurs. Miiskin, at its sole discretion, may notify affected End Users of the termination of this Agreement and either provide the End Users with any applicable data or direct End Users to Customer to obtain a copy of any End User data provided to Customer through the Platform.
12.4. Survival. The following Sections shall survive any termination or expiration of this Agreement: 3 (Platform Fees); 4 (No Provision of Medical Advice or Services); 5 (Medical Records; Data Hosting and Storage; HIPAA), 6 (Billing and Collection); 7.3 (Disclaimer of Warranties); 8 (Proprietary Rights; Customer Data); 9 (Confidentiality); 10 (Indemnification); 11 (Disclaimer of Consequential Damages; Limitation of Liability); 12.3 (Effect of Termination); 12.4 (Survival); and 13 (General).
13.1. Affiliates, Subcontractors, and Vendors. Some or all aspects of the Platform may be provided by Miiskin’s affiliates, agents, subcontractors, and information system vendors. The rights and obligations of Miiskin may be, in whole or in part, exercised or fulfilled by the foregoing entities.
13.2. Publicity. Miiskin may identify Customer as a customer and use Customer’s name and logo in its customer listings, web sites, and other promotional materials. In addition, during the Term, Miiskin may issue press releases regarding the Parties’ relationship under this Agreement.
13.3. Independent Contractor. Miiskin is an independent contractor and is not an agent or employee of, and has no authority to bind, Customer by contract or otherwise. Further, it is not the intention of this Agreement or of the Parties to confer a third-party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.
13.4. Assignment. Customer may not assign, transfer, or delegate its rights or obligations under this Agreement without the prior written consent of Miiskin. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties, their successors, assigns, and legal representatives.
13.5. Force Majeure. Except for the payment of fees hereunder, if either Party cannot perform any of its obligations because of any act of God, court order, war, or any other cause not within the Party’s reasonable control, that begin after the Effective Date and could not be avoided through the exercise of reasonable care and diligence (a “Force Majeure Event”), then the non-performing Party will: (i) immediately notify the other Party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event.
13.6. Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law provisions. The Parties waives any objections against and agrees to submit to the personal jurisdiction of the state and federal courts in the State of New York. The Parties waive any objections or defenses it may have based upon an inconvenient forum.
13.7. Compliance. Each Party agrees to comply with all Applicable Laws in performing its obligations hereunder, and Customer agrees that Customer is solely responsible for ensuring compliance with all Customer Data and Customer’s business practices, which include, but are not limited to, the applicable federal and state anti-kickback and self-referral laws and regulations at all times during the Term of this Agreement. The Parties acknowledge that although Miiskin is obligated to provide the Platform as specified in this Agreement, there is no obligation of Miiskin to refer patients to Customer or any affiliate of Customer, and there is no obligation of Customer to refer patients to any person or business entity. Notwithstanding the unanticipated effect of any of the provisions herein, the Parties intend to comply with 42 U.S.C. § 1320a-7b(b) (commonly known as the Anti-Kickback Statute), 42 U.S.C. § 1395nn (commonly known as the Stark Law) and any other federal or state law provision governing fraud and abuse or self-referrals, as such provisions may be amended from time to time. This Agreement will be construed in a manner consistent with compliance with such statutes and regulations, and the Parties hereto agree to take such actions necessary to construe and administer this Agreement accordingly. The Parties hereto represent, covenant, and agree that the fees due to Miiskin under this Agreement has been determined through good faith and arm’s length bargaining to be commercially reasonable. The sole purpose of the payments to Miiskin hereunder is to pay fair market value for services actually rendered by Miiskin to Customer through the Platform under this Agreement. No amount paid hereunder is intended to be, nor shall be construed as, an inducement or payment for referral of, or recommending referral of, patients by Miiskin (or its employees and agents) to Customer (or its employees or agents) or by Customer (or its employees and agents) to Miiskin (or its employees and agents). In addition, fees charged hereunder do not include any discount, rebate, kickback, or other reduction in charge. This Agreement shall be interpreted and construed at all times in a manner consistent with applicable laws and regulations governing the financial relationships among individuals and entities that provide or arrange for the provision of items or services that are reimbursable by governmental health care programs or other third party payors.
13.8. Access to Books and Records. To the extent that the provisions of Section 1861(v)(1)(I) of the Social Security Act are applicable to this Agreement, the Parties agree to make available, upon the written request of the Secretary of the Department of Health and Human Services or upon the request of the Comptroller General, or any of their duly authorized representatives, this Agreement, and other books, records, and documents that are necessary to certify the nature and extent of costs incurred by them for services furnished under this Agreement. If any services are performed by way of subcontract with another organization and the value or cost of such subcontracted service is Ten Thousand Dollars ($10,000) or more over a twelve (12) month period, such subcontract shall contain and the respective Party shall enforce a clause to the same effect as this Section. The availability of the Parties’ books, documents, and records shall be subject at all times to all applicable legal requirements, including such criteria and procedures for seeking and obtaining access that may be promulgated by the Secretary. The obligations hereunder shall extend for four (4) years after the furnishing of such services. The Parties shall notify each other of any such request for records.
13.9. Waivers. All waivers hereunder must be made in writing by a duly authorized representative of the Party against whom the waiver is to operate, and failure at any time to require the other Party’s performance of any obligation under this Agreement shall not affect the right subsequently to require performance of that obligation. Any waiver, in whole or in part, of any provision of this Agreement will not be considered to be a waiver of any other provision.
13.10. Severability. If any term of this Agreement is found to be unenforceable or invalid for any reason, all other terms will remain in full force and effect.
13.11. Construction. All headings used in this Agreement are for reference purposes only and are not part of this Agreement. All personal pronouns used herein, whether used in the feminine, masculine, or neuter gender, shall include all other genders, and the singular shall include the plural and vice versa. Unless otherwise expressly stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section, Subsection, or other subpart. The words “include,” “includes,” “included,” “including,” “without limitation,” or the phrase “e.g.” shall not be construed as terms of limitation and shall, in all instances, be interpreted as meaning “including, but not limited to.”
13.12. Attachments. All Order Forms and other terms and addenda that are referenced herein on or are executed by the Parties and reference this Agreement after the Effective Date are hereby incorporated by reference.
13.13. Entire Agreement. This Agreement, as to its subject matter, exclusively and completely states the rights, duties, and obligations of the Parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions, and understandings by or between the Parties. This Agreement may only be amended in a writing signed by both Parties.
13.14. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if delivered personally; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. All notices under this Agreement to Miiskin shall be sent to the following address:
|Miiskin Group ApS Fruebjergvej 3 2100|
Copenhagen Ø Denmark
All notices to Customer shall be sent to the most recent address Miiskin has on file for Customer. Either Party may change its address or designee for notification purposes by giving notice to the other of the new address or designee and the date upon which the change will become effective.
13.15. Legal Fees. If any dispute arises between the Parties with respect to the matters covered by this Agreement that leads to a proceeding to resolve such dispute, the prevailing Party in such proceeding will be entitled to receive its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.
13.16. Agreement Drafted By All Parties. This Agreement is the result of arm’s length negotiations between the Parties and shall be construed to have been drafted by all Parties such that any ambiguities in this Agreement shall not be construed against either Party.
13.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and will become effective and binding upon the Parties as of the Effective Date.
13.18. Electronic Signatures and Facsimiles Binding. This Agreement and related documents may be accepted in electronic form (e.g., by an electronic or digital signature or other means of demonstrating assent) and Customer’s acceptance will be deemed binding between the Parties. Customer acknowledges and agrees it will not contest the validity or enforceability of this Agreement and related documents, including under any applicable statute of frauds, because they were accepted and/or signed in electronic form. Customer further acknowledges and agrees that it will not contest the validity or enforceability of an electronically transmitted or signed copy of this Agreement and related documents on the basis that it lacks an original handwritten signature. Electronically transmitted signatures shall be considered valid signatures as of the date hereof. Computer maintained records of a Party when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records.
Business Associate Agreement
This Business Associate Agreement (“BAA”) is entered into on the Effective Date of the Agreement by and between the Customer identified in the Agreement (“Covered Entity”) and Miiskin Group ApS (“Business Associate”) (each a “Party” and collectively, the “Parties”).
WHEREAS, Business Associate performs certain services for or on behalf of Covered Entity, and in performing said services, Business Associate creates, receives, maintains, or transmits Protected Health Information (“PHI”);
WHEREAS, the Parties intend to protect the privacy and provide for the security of the PHI Disclosed (as defined below) by Covered Entity to Business Associate, or created, received, maintained, or transmitted by Business Associate, when providing services. Such PHI will be protected in compliance with the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Economic and Clinical Health Act (Public Law 111-005) (the “HITECH Act”) and its implementing regulations and guidance issued by the Secretary of the U.S. Department of Health and Human Services (“Secretary”) (collectively, the “HIPAA Regulations”); and
WHEREAS, Covered Entity is required under the HIPAA Regulations to enter into a Business Associate Agreement that meets certain requirements with respect to the Use (as defined below) and Disclosure of PHI, which are met by this BAA. Accordingly, to the extent Business Associate is functioning as a “business associate” as defined in the HIPAA Regulations, Business Associate agrees to comply with this BAA.
In consideration of the Recitals and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
The following terms shall have the respective meanings set forth below. Capitalized terms used in this BAA and not otherwise defined shall have the meanings ascribed to them in the HIPAA Regulations.
1.1 “Protected Health Information” and “PHI” mean any information, whether oral or recorded in any form or medium, provided by Covered Entity to Business Associate, that: (a) relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (b) identifies the individual (or for which there is a reasonable basis for believing that the information can be used to identify the individual); and (c) shall have the meaning given to such term under 45 C.F.R. § 160.103. Protected Health Information includes electronic PHI.
1.2 “Services” shall mean the services or functions performed by Business Associate under the Agreement that constitute a “business associate” relationship, as set forth in 45 C.F.R. § 160.103.
OBLIGATIONS OF BUSINESS ASSOCIATE
2.1. Permitted Uses and Disclosures of PHI. Business Associate shall not Use or Disclose PHI created, received, maintained, or transmitted for or on behalf of Covered Entity except to perform the Services in the Agreement, or as permitted by this BAA or Required by Law. Business Associate shall not Use or Disclose PHI in any manner that would constitute a violation of the HIPAA Regulations if so Used or Disclosed by Covered Entity. Without limiting the generality of the foregoing, Business Associate is permitted to (i) Use and Disclose PHI for the proper management and administration of Business Associate or to carry out the legal responsibilities of Business Associate, provided that with respect to any such Disclosure either: (a) the Disclosure is Required by Law; or (b) Business Associate obtains agreement from the person to whom the PHI is to be Disclosed that such person will hold the PHI in confidence and will not Use or further Disclose such PHI except as Required by Law and for the purpose(s) for which it was Disclosed by Business Associate to such person, and that such person will notify Business Associate of any instances of which it is aware in which the confidentiality of the PHI has been breached; (ii) Use PHI for Data Aggregation purposes in connection with the Health Care Operations of Covered Entity; and (iii) Use PHI to create de-identified information in accordance with the requirements outlined in the HIPAA Regulations. Data that has been de-identified will no longer be subject to the terms of this BAA.
2.2. Adequate Safeguards of PHI. Business Associate agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to electronic PHI, to prevent use or disclosure of the information other than as provided for by this BAA.
2.3. Mitigation. Business Associate agrees to mitigate, to the extent practicable, any harmful effect that is known to Business Associate of a Use or Disclosure of PHI by Business Associate in violation of the requirements of this BAA.
2.4. Reporting Breaches, Security Incidents, and Non-Permitted Uses or Disclosures. Business Associate shall notify Covered Entity of any Use or Disclosure by Business Associate or its Subcontractors that is not permitted by this BAA and each Security Incident, including Breaches of Unsecured PHI, within fifteen (15) business days of discovery. Notwithstanding the foregoing, Business Associate and Covered Entity acknowledge the ongoing existence and occurrence of attempted but ineffective Security Incidents that are trivial in nature, such as pings and other broadcast service attacks, and Covered Entity acknowledges and agrees that no additional notification to Covered Entity of such ineffective Security Incidents is required, as long as no such incident results in unauthorized access, Use or Disclosure of PHI. If Business Associate determines that a Breach of Unsecured PHI has occurred, Business Associate shall provide a written report to Covered Entity without unreasonable delay and no later than thirty (30) business days after discovery of the Breach. To the extent that information is available to Business Associate, Business Associate’s written report to Covered Entity shall be in accordance with 45 C.F.R. § 164.410(c).
2.5. Delegated Responsibilities. To the extent that Business Associate has agreed to carry out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164, Business Associate must comply with the requirements of Subpart E that apply to Covered Entities in the performance of such obligations.
2.6. Availability of Internal Practices, Books, and Records to Government. Business Associate agrees to make its internal practices, books and records relating to the Use and Disclosure of Covered Entity’s PHI available to the Secretary for purposes of determining Covered Entity’s compliance with the HIPAA Regulations.
2.7. Access to and Amendment of Protected Health Information. To the extent that Business Associate maintains a Designated Record Set on behalf of Covered Entity, Business Associate shall (i) make the PHI it maintains (or which is maintained by its Subcontractors) in such Designated Record Set available to Covered Entity for inspection and copying to enable Covered Entity to fulfill its obligations under 45 C.F.R. § 164.524 within fifteen (15) business days of a written request by Covered Entity; and (ii) amend the PHI it maintains (or which is maintained by its Subcontractors) in such Designated Record Sets to enable the Covered Entity to fulfill its obligations under 45 C.F.R. § 164.526 within fifteen (15) business days of a written request by Covered Entity.
2.8. Accounting. Business Associate agrees to document such disclosures of PHI and information related to such disclosures as would be required for Covered Entity to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528. Business Associate shall provide to Covered Entity or, at the request of Covered Entity directly to an individual, in the time and manner designated by Covered Entity, but in no event longer than fifteen (15) business days after Business Associate’s receipt of a written request from Covered Entity, information collected in accordance this Section 2.8 of this BAA, to permit Covered Entity to respond to a request by an individual for an accounting of disclosures of PHI in accordance with 45 C.F.R. § 164.528.
2.9. Use of Subcontractors. Business Associate shall require each of its Subcontractors that creates, receives, maintains, or transmits PHI on behalf of Business Associate, to execute a written agreement that includes substantially the same restrictions and conditions that apply to Business Associate under this BAA with respect to PHI.
2.10. Minimum Necessary. Business Associate (and its Subcontractors) shall, to the extent practicable, limit its request, Use, or Disclosure of PHI to the minimum amount of PHI necessary to accomplish the purpose of the request, Use or Disclosure, in accordance with 42 U.S.C. § 17935(b) and 45 C.F.R. § 164.502(b)(1) or any other guidance issued thereunder.
TERM AND TERMINATION
3.1. Term. The term of this BAA shall be effective as of the Effective Date of the Agreement and shall remain in effect until all of the PHI provided by Covered Entity to Business Associate, or created or received by Business Associate on behalf of Covered Entity, is destroyed or returned to Covered Entity, or, if it is infeasible to return or destroy PHI, protections are extended to such information, in accordance with Section 3.3.
3.2. Termination for Cause. In addition to and notwithstanding the termination provisions set forth in any Agreement, upon Covered Entity’s or Business Associate’s knowledge of a material breach or violation of this BAA by the other Party, the non-breaching Party shall notify the breaching Party of the breach in writing, and provide an opportunity for the breaching Party to cure the breach or end the violation within thirty (30) days of such notification; provided that if the breaching Party fails to cure the breach or end the violation within such time period to the satisfaction of the non-breaching Party, the non-breaching Party may immediately terminate this BAA upon written notice to the breaching Party.
3.3. Disposition of PHI Upon Termination. Upon termination or expiration of this BAA, Business Associate shall either return or destroy all PHI received from, or created or received by Business Associate on behalf of Covered Entity, that Business Associate still maintains in any form and retain no copies of such PHI. If return or destruction is not feasible, Business Associate shall continue to extend the protections of this BAA to the PHI for as long as Business Associate retains the PHI and limit further Uses and Disclosures of such PHI to those purposes that make the return or destruction of the PHI infeasible.
4.1. Covered Entity’s Obligations. Covered Entity shall notify Business Associate in writing of any of the following, to the extent that such limitation, change, revocation, or restriction may affect Business Associate’s Use or Disclosure of PHI: (i) any limitation(s) in Covered Entity’s notice of privacy practices; (ii) any changes in, or revocation of, permission by an individual to Use or Disclose PHI; or (iii) any restriction to the Use or Disclosure of PHI that Covered Entity has agreed to in accordance with 45 C.F.R. § 164.522. Covered Entity will obtain any consent or authorization that may be required by the HIPAA Regulations, or applicable state law, prior to furnishing Business Associate with PHI or permitting Business Associate to access PHI for or on behalf of Covered Entity.
4.2. Amendment to Comply with Law. To the extent applicable, amendments or modification to the HIPAA Regulations may require amendments to certain provisions of this BAA. Amendments shall only be effective if executed in writing and signed by a duly authorized representative of each Party.
4.3. Relationship to Agreement Provisions. In the event that a provision of this BAA is contrary to a provision of the Agreement, the provision of this BAA shall control. Otherwise, this BAA shall be construed under, and in accordance with, the terms of the Agreement, and shall be considered an amendment of and supplement to the Agreement.
4.4. Notices. Any notices or communications hereunder shall be provided in accordance with the notice provisions of the Agreement.
4.5. Interpretation. This BAA shall be interpreted as broadly as necessary to implement and comply with the HIPAA Regulations. The Parties agree that any ambiguity in this BAA shall be resolved in favor of a meaning that complies and is consistent with such laws and regulations.
4.6. Regulatory References. A reference in this BAA to a section in the HIPAA Regulations means the section as in effect or as amended, and for which compliance is required.
4.7. No Third Party Beneficiaries. Nothing express or implied in this BAA is intended to confer, nor shall anything herein confer, upon any person other than the Parties and the respective successors or assigns of the Parties, any rights, remedies, obligations, or liabilities whatsoever.
Updated: June 2nd 2021