1. Definitions
Whenever used in this Agreement with initial letters capitalized, the following terms will have the following meanings:
"Additional Services" means any additional services to be performed by Aesthetics Pro Online for Company pursuant to Section 4 of this Agreement relating to the System and the Applications, including without limitation customization, implementation, and additional support or training services.
"Applications" means the Aesthetics Pro Online web-based applications hosted by Aesthetics Pro Online and provided to Company as part of the Services under this Agreement, which are listed on the cover page of this Agreement; as such Applications may from time to time be modified by Aesthetics Pro Online.
"Authorized User" means any principal, officer, employee, agent, independent contractor or consultant of Company who has a need to use the Services in connection with their duties for Company and who is authorized or otherwise designated or permitted by Company to access and use the Services pursuant to this Agreement.
"Company Content" means all data or content of or concerning Company or its patient/customers that is posted or otherwise placed on the System by Company.
"Company Support Coordinators" means the one or two Company employees who are designated, from time-to-time, in writing by Company at any one time to coordinate requests for Support Services and to whom the Support Services will be provided by Aesthetics Pro Online.
"Confidential Information" means any nonpublic information that is confidential to the discloser, or that the discloser is obligated by law or agreement to keep confidential, and that is conspicuously marked or otherwise identified as confidential or proprietary or that the recipient otherwise knows or has reason to know is the Confidential Information of the discloser. The Company Content shall be deemed the Confidential Information of Company and the Aesthetics Pro Online Technology shall be deemed the Confidential Information of Aesthetics Pro Online. Confidential Information shall also include, without limitation, non-public information which relates to a discloser's research, development, products, services, pricing, customers, contractors, marketing plans, finances, contracts, legal affairs and business affairs. However, notwithstanding anything herein to the contrary, Confidential Information does not include any information that: (a) was known to the recipient prior to receiving the same from the discloser in connection with this Agreement; (b) is independently developed by the recipient; (c) is acquired by the recipient from another source without restriction as to use or disclosure; or (d) is or becomes publicly available through no fault or action of the recipient.
"Documentation" means the user manuals, online documentation and other materials relating to the Services provided by Aesthetics Pro Online to Company, as such Documentation may from time to time be modified by Aesthetics Pro Online.
"Initial Term" means the initial term of the Agreement as specified on the cover page of the Agreement.
"Aesthetics Pro Online Site" means the Aesthetics Pro Online Web site, currently located at www.inetportals.com, through which the Services are accessed.
"Aesthetics Pro Online Technology" means the Applications, Documentation and any know-how, processes, methodologies, specifications, designs, inventions, concepts, ideas, functionality, graphics, techniques, methods, computer programs, computer code, user manuals, online documentation, products or other technology or materials of any kind created or owned by Aesthetics Pro Online, together with any enhancements or modifications thereto, that is used by Aesthetics Pro Online in connection with the performance of the Services or made available by Aesthetics Pro Online to Company in connection with the Services.
"Health Insurance Portability and Accountability Act of 1996" means that certain law, as amended, and regulations promulgated thereto by the Department of Health and Human Services (“HHS”) and codified at 45 CFR Parts 160 and 164, as amended from time to time, including without limitation (i) the Privacy Standards for the Protection of Health Information set forth at 45 CFR Part 164, Subparts A and E, and (ii) the Security Standards for the Protection of Electronic Protected Health Information set forth at 45 CFR Part 164, Subpart C (the statute and regulations are hereinafter collectively referred to as “HIPAA”)
"Personal Health Information" means all information regarding a patient’s and/or patients’ health status as may be further defined by HIPAA.
"Renewal Term" means any term for which the Agreement is renewed pursuant to Section 7. Renewal pricing is subject to change based on inflation.
"Services" means providing online access to the Applications through the Aesthetics Pro Online Site, together with the Support Services and any Additional Services.
"System" means the Aesthetics Pro Online software and hardware, including the Applications, used to provide the Services under this Agreement.
"System Requirements" means the minimum system and other requirements required for access to and use of the Aesthetics Pro Online Services specified in the System Requirements attached as Exhibit A, as may be altered or amended from time to time by Aesthetics Pro Online.
"Support Services" means the support and training services relating the Services as described in Section 4 of this Agreement.
"Term" Term shall mean the Initial Term of the Agreement plus any Renewal Terms.
"User Identification" means the unique user identification name and password issued or otherwise assigned to each Authorized User for access to and use of the Aesthetics Pro Online Services.
"User Materials" means all written and electronic documentation, manuals and materials provided by Aesthetics Pro Online to Company for use in connection with the Software.
2. Services; Restrictions on Use
2.1 Services. Subject to the terms, conditions and limitations set forth in this Agreement, Aesthetics Pro Online will make the Services available to Authorized Users of Company and hereby grants Company a nonexclusive license to access and use the Applications and the Services during the Term of this Agreement, solely for the Company's internal use in the regular course of its business. The foregoing license permits Company to upload, publish and otherwise electronically transmit data to the System and to download, display, print out, store, manipulate and distribute data and Company Content using the Applications and the System.
2.2 General Restrictions and Limitations. Section 2.1 sets forth the entirety of Company’s right to access and use the Services and to make the Services available to Authorized Users. Company’s right, directly or indirectly, to use the Services does not include the right to, , (a) permit or enable any person or entity other than Authorized Users to access and use the Services; (b) modify or create any derivative work based upon any Aesthetics Pro Online Technology; (c) resell, rent, transfer, assign, or sublicense the Services; (e) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any software that is part of the Aesthetics Pro Online Technology; (f) remove, obscure or alter any proprietary rights notice related to the Aesthetics Pro Online Technology or the Aesthetics Pro Online Services; (g) engage in or permit any infringing or unlawful activities involving the Aesthetics Pro Online Services or the Aesthetics Pro Online Technology; or (h) engage in or permit any use, reproduction, distribution, disposition, possession, disclosure or other activity involving the Services or the Aesthetics Pro Online Technology that is not expressly authorized under the Agreement or otherwise in writing by Aesthetics Pro Online. Company will ensure that all access to and use of the Aesthetics Pro Online Services by Company or Authorized Users, or otherwise through Company's facilities, equipment, identifiers or passwords, will conform to this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, the rights of any third party, court orders or Aesthetics Pro Online's policies.
3. Access to the Aesthetics Pro Online Services
3.1 Equipment, Services and Facilities. The System and the Applications will be hosted and maintained by Aesthetics Pro Online and accessed by Company through the Aesthetics Pro Online Site. Company is solely responsible for providing, installing and maintaining, at its own expense, all equipment, facilities and services necessary for Company to access and use the Aesthetics Pro Online Services, including, without limitation, all computer hardware and software, modems, printers, telephone service and Internet access as set forth in the System Requirements.
3.2 Password. Aesthetics Pro Online will issue each Authorized User a User Identification to access and use the Aesthetics Pro Online Services. To access and use the Aesthetics Pro Online Services. Company is solely responsible for tracking the User Identifications to specific Authorized Users and for ensuring the security and confidentiality of all User Identifications and of the information accessed or provided using such User Identifications. Company acknowledges that it is fully responsible for all liabilities incurred through the use or misuse of any User Identification and Aesthetics Pro Online shall not be liable for the results of any use or misuse of such User Identification or for the actions of any Authorized User. Company will take reasonable efforts to prevent unauthorized use of the Services and will immediately notify Aesthetics Pro Online of any unauthorized use of the Services or any User Identification or any other breach of security known to it. Use of any User Identification other than as provided in this Agreement will be considered a breach of this Agreement by Company.
3.3 Suspension of Services. In the event Company breaches of any of the warranties set forth in Section 9 or elsewhere in the Agreement, fails to pay any amount under the Agreement when due, or is otherwise in breach of this Agreement, then in addition to any other remedies available at law or in equity, Aesthetics Pro Online will have the right, in its sole reasonable discretion, to immediately suspend the Aesthetics Pro Online Services. In the event that this Agreement is suspended, Company will be charged a Reconnection Fee pursuant this paragraph. If service is suspended, Aesthetics Pro Online shall be relieved of any obligation to provide product, Services, or support to Company until all past due and delinquent invoices are paid in full. Once an account is suspended for non-payment, Aesthetics Pro Online shall not be required to provide Services, or other products or services, hereunder until a “Reconnection Fee” equal to twenty-five percent (25%) of the current Term’s annualized monthly Service Fee is paid by Company and received by Aesthetics Pro Online.
4. Support and Training; Additional Services
4.1 Help Desk. During the Term, Aesthetics Pro Online will provide periodic telephone and e-mail support to the Company Support Coordinators relating to the use and operation of the Aesthetics Pro Online Services (other than problems with Company hardware, Internet or online access, operating system software or other Company software). Such support will be provided only during Aesthetics Pro Online’s normal business hours. Aesthetics Pro Online will use commercially reasonable efforts to promptly respond to Company support requests. However, except as expressly provided herein or in a separate support agreement, Aesthetics Pro Online assumes no responsibility or liability for failure to respond to support requests within a certain timeframe or to resolve any problem or defect in the Services. Support Services as describe herein shall be provided solely to Company's designated Company Support Coordinators. Company may change its designated Company Support Coordinators at any time upon written notice to Aesthetics Pro Online.
4.2 Training. For the initial software environment activation, Aesthetics Pro Online will provide training via the Internet.
4.3 Additional Services. In the event the parties agree upon any Additional Services to be performed by Aesthetics Pro Online, including without limitation any customizations of the Applications or any training and support services beyond such amounts or in addition to such services specified in paragraphs 4.1 and 4.2, such Additional Services shall be performed on a time and materials basis at Aesthetics Pro Online's standard hourly rates.
5. Compensation
5.1 Amount. Company will pay Aesthetics Pro Online for the Services in accordance with the fees, charges, reimbursable expenses and other amounts specified on the cover page in these Terms and Conditions. The Initial Term “Service Fees,” which is based upon the number of Company locations and multi-location user licenses (10 multi location system user licenses per pack), as set forth on the Agreement, will be invoiced and payable as set in paragraph 5.3. The Service Fees for each Renewal Term will be invoiced approximately ninety (90) days in advance of the commencement of each Renewal Term, and payable upon commencement of the Renewal Term provided all Company locations are active and operational. Service Fees may be modified by Aesthetics Pro Online for Renewal Term, provided that Aesthetics Pro Online shall inform Company in writing as to any such proposed increase not less than sixty (60) days prior to the commencement of the Renewal Term. If signed contract is for an “Aesthetics Pro Online Custom Environment”, after 12 months (365 days) billing will be based on User Access Licenses or standard monthly service fees (whichever is greater).
5.2 Additional Fees. Company will pay Aesthetics Pro Online such additional fees, charges, reimbursable expenses and other amounts as may be specified herein and in any Services Addendum in accordance with the payment terms specified therein.
5.3 Payment. Unless otherwise specified in writing, the Set-Up Fee and Training Fees together with the first payment of the Monthly Fee will be payable upon the execution of this Agreement. Thereafter, the Monthly Fee shall be payable in advance on the first day of each calendar month. Any amount not paid within 10 days of the due date will be subject to finance charges equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. In addition, the Company reserves the right to suspend service pursuant to Section 3.3, above.
5.3 Taxes. Unless otherwise specified in writing, fees, charges, reimbursable expenses and other amounts payable to INET Portals under this Agreement do not include any taxes, customs, duties, fees or other amounts assessed or imposed by any governmental authority other than taxes imposed on INETPortals’s net income. Company will pay or reimburse INET Portals for all such amounts upon demand or provide certificates or other evidence of exemption.
6. Proprietary Rights
6.1 Ownership. The Company acknowledges and understands that the Services, the Aesthetics Pro Online Technology, the Aesthetics Pro Online Site and any revisions, corrections, modifications, customizations, improvements, upgrades, new releases or other change thereto are the valuable proprietary rights of Aesthetics Pro Online. The Company acknowledges that it obtains only the right to use the Services under this Agreement. The Company shall not (i) assign, sublicense, transfer, pledge or grant a security interest in, lease, rent or share Company’s rights under this Agreement with any third party; (ii) reverse assemble, reverse compile, cross compile or otherwise adopt, translate or modify the Software; or (iii) refer to or use any portion of the Software or User Materials as part of any effort to develop any derivative work or other software program. This agreement shall be binding on Company’s heirs, successors and assigns.
6.2 Company Content. As between the parties, Company will own all right, title and interest in all Company Content. Company grants to Aesthetics Pro Online and its affiliates a nonexclusive, nontransferable right to use reproduce, distribute, modify (for formatting purposes), display and store (digitally or otherwise) the Company Content in connection with the performance of the Aesthetics Pro Online Services. Company will comply with all applicable laws, rules and regulations in connection with the use and posting of the Company Content (including, without limitation, any pertaining to privacy). If Company terminates contract prior to contract expiration date and does not pay they early termination penalty fee in accordance with Section 7; 7.1 or Company has a balance due greater than 60 days, Company will be required to pay all fees before company content, data and patient Personal Health Information, will be released to Company.
6.3 Confidential Information. Each party reserves any and all right, title and interest (including, without limitation, any proprietary rights) that it may have in or to any Confidential Information that it may disclose to the other party, or of which the other party may become aware, under this Agreement. The recipient will protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information. The recipient will not use or disclose any Confidential Information of the discloser except for the purposes for which it is provided by the discloser. This paragraph will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the recipient's performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (b) any use or disclosure required by applicable law (e.g., pursuant to applicable securities laws or legal process), provided that the recipient uses reasonable efforts to give the discloser reasonable advance notice thereof (e.g., so as to afford the discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure); or (c) any use or disclosure made with the consent of the discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this paragraph, the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations.
7. Term and Termination
7.1 Term. The Term of this Agreement will commence as of the Effective Date of this Agreement and will continue for the Initial Term set forth on the cover page of this Agreement and for any Renewal Terms, as set forth below, unless earlier terminated as set forth herein. Thereafter, the Term will automatically renew for successive Renewal Terms of one (1) year, unless either party gives written notice of non-renewal at least thirty days prior to the end of the previous term. At any point the Company may voluntarily terminate this one (1) year contract if Company gives thirty (30) day’s notice to Aesthetics Pro Online. If Company elects to terminate the Term after the initial 30 days of software environment activation and prior to the one (1) year contract term, and there is no breach of contract on the part of Aesthetics Pro Online, the Company shall pay an early termination fee equal three (3) months of the total Company Monthly Service Fee or the remaining balance of the contract; whichever is less, to be invoiced and paid in full beginning on the 1st day of the month succeeding the termination notice. There shall not be an early termination fee if Company elects to terminate Term within the initial 30 days, post software environment activation, however, there will be no refund issued by Provider for the subscription fee and/or initial monthly service fee.
7.2 Termination for Breach. If either party breaches this Agreement, then the other party shall give the breaching party written notice of such breach or default and the then-current Term will terminate pursuant to this paragraph if the breach or default is not cured within thirty (30) days after receipt of notice, without any further notice or action by the terminating party.
7.3 Effect of Termination. If the Term is terminated pursuant to and in accordance with this Section 7, then, unless otherwise specifically provided for in writing by the parties, the following will apply: (a) the parties will cooperate to effect an orderly, efficient, effective and expeditious termination of the party's respective activities under this Agreement; (b) the rights granted to Company with respect to the Services and the Aesthetics Pro Online Technology will terminate effective as of the effective date of the termination; (c) Company will return to Aesthetics Pro Online any and all Confidential Information of Aesthetics Pro Online in the possession or control of Company; (d) Aesthetics Pro Online will return to Company any and all company content, data, patient personal health information and/or Confidential Information of Company in its possession or control; (e) Company data and electronic records can be exported, as set forth in section 2.1, by Company, using the available software application utilities. Customized data export can be provided by Aesthetics Pro Online at the cost of current Provider development rates. Customized electronic record export can be provided by AestheticsPro Online at the cost of current Provider development rates, (Basic export cost is $250.00 for up to 500 client records or $.50 per client record over 500 client records.) E-Record Download to include all Company electronic forms/charts/records in a PDF format, uploaded photos, and documents. Custom exports encompass anything outside of what can be exported from available utilities within the software application, including custom formatting on the report(s), and or the data provided in a standard export spreadsheet. Data and electronic record export on the part of Company and or Aesthetics Pro Online will coincide with the Company thirty (30) day termination notice. (f) AeshteticsPro online will no longer assume custodianship of data after thirty (30) day notices of cancellation of account (g) Unless otherwise agreed upon by the parties, Aesthetics Pro Online will have no obligation to provide the Services to Company or Authorized Users after the effective date of the termination; (h) Company will pay to Aesthetics Pro Online any amounts payable for Company's and Authorized User’s use of the Services prior to the effective date of the termination; (i) any and all liabilities accrued prior to the effective date of the termination will survive; and (j) the parties' respective rights and obligations under paragraphs 2.2, and 2.3, and Sections 6, 7, 8, 9, 10 and 11 of this Agreement will survive.
8. Aesthetics Pro Online Representations and Warranties, Limited Remedies
8.1 Functionality. Aesthetics Pro Online warrants companying that the Services will, when properly accessed and utilized by Company, performing substantially in accordance with specifications set forth in the then current Documentation.
Aesthetics Pro Online will use commercially reasonable efforts to repair or replace the deficient Services so that it complies with the applicable warranty. If the deficient Service cannot be repaired or replaced, then Aesthetics Pro Online will refund to Company such portion of the applicable fees Monthly Fees paid by Company that are attributable to the deficient Service. Company acknowledges that the operation of the Services will not be uninterrupted and that there will be periods of unavailability of the Services, such as during routine maintenance. The foregoing is Company's sole and exclusive remedy for any failure of the Services to perform as warranted herein.
8.2 Infringement. Aesthetics Pro Online warrants to Company that its use of the Services will not infringe upon or violate any U.S. proprietary rights of any third party. Aesthetics Pro Online shall defend, indemnify and hold Company harmless from and against any claims or liabilities arising out of any failure of the Aesthetics Pro Online Services to comply with the warranty set forth in this paragraph 8.1; provided, that Company gives Aesthetics Pro Online prompt written notice of the claim, authorizes Aesthetics Pro Online to control the defense and settlement of the claim, provides such assistance in connection with the defense and settlement of the claim as Aesthetics Pro Online may reasonably request, does not settle or compromise the claim without the prior written consent of Aesthetics Pro Online and complies with any settlement or court order made in connection with the claim.
8.3 Exclusions. Aesthetics Pro Online's warranty under paragraphs 8.1 and 8.2 does not apply to any defect, nonconformance or infringement resulting from any (a) improper use of the Services or any use not in accordance with the Agreement; (b) modification, redevelopment, damage, misuse or other action or omission of Company or any third party; (c) use of the Services in combination with any equipment, software, goods, services or items provided by Company or any third party; or (d) any failure of Company to comply with any terms of the Agreement.
8.4 DISCLAIMER. THE WARRANTY AND REMEDIES SET FORTH IN THIS SECTION 8 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF AESTHETICS PRO ONLINE AND REMEDIES OF COMPANY, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, OMMISSION, DEFICIENCY, DEFECT, NONCOMPLIANCE OR INFRINGEMENT IN THE APPLICATIONS, THE SERVICES, THE AESTHETICS PRO ONLINE TECHNOLOGY, THE AESTHETICS PRO ONLINE SITE OR OTHER ITEMS OR SERVICES FURNISHED BY OR ON BEHALF OF AESTHETICS PRO ONLINE UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE). AESTHETICS PRO ONLINE DOES NOT WARRANT THAT IT WILL BE ABLE TO PROVIDE TECHNICAL
SUPPORT OR ANY OTHER FORM OF SERVICE TO YOU, AND AESTHETICS PRO ONLINE DOES NOT WARRANT THAT ANY SOFTWARE OR ANY DATA USED BY, OR ANY SERVICES INCLUDED IN, THE SOFTWARE WILL BE FREE OF ERRORS OR DEFECTS, OR THAT USE OF THE SOFTWARE OR ANY ASSOCIATED SERVICES WILL NOT
CAUSE LOSS OF DATA IN OR IMPAIR THE SECURITY OF YOUR COMPUTER SYSTEM, OR BE UNINTERRUPTED OR SUITABLE FOR YOUR REQUIREMENTS OR FOR ANY PURPOSE WHATSOEVER OR THAT AESTHETICS PRO ONLINE OR ANY THIRD PARTY WILL BE AVAILABLE TO
PROVIDE SUPPORT SERVICES FOR THE SOFTWARE. YOU AGREE THAT YOUR USE OF THE SOFTWARE, INCLUDING ANY ASSOCIATED SUPPORT OR OTHER SEVICES, IS
ENTIRELY AT YOUR OWN RISK. Some states do not allow the exclusion of implied warranties, and where applicable the above exclusion shall apply to the maximum extent permitted by law.
8.5 Third Party Content, Software and Materials.
Except as otherwise agreed upon by the parties in writing, to the extent that the Applications or the Services contain or utilize any third-party content, software or materials, Aesthetics Pro Online shall pass through any applicable warranties. However, Aesthetics Pro Online shall have no liability for any such third-party arty content, software or materials.
9. Company Warranties
9.1 Warranty. In addition to any warranties set forth elsewhere in the Agreement, Company warrants to Aesthetics Pro Online that the Company Content and Company's and Authorized Users' access to and use of the Aesthetics Pro Online Services will not violate any third-party rights or any applicable laws, rules or regulations.
9.2 Indemnification. Company will defend, indemnify and hold harmless Aesthetics Pro Online, and its directors, officers, employees, owners and agents from and against any and all claims, costs, losses, damages, judgments and expenses (including reasonable attorneys' fees) arising out of or in connection with (a) any claim alleging any breach of any of the foregoing warranties or any other provision of this Agreement; (b) any damage arising from causes beyond the control or without the fault or negligence of Aesthetics Pro Online; (c) any use by Company or Authorized Users of the Aesthetics Pro Online Services, Third Party Content, or any other software, services or other items provided under this Agreement.
10. General
10.1 Force Majeure. Neither party will be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party's reasonable control (including, without limitation, any act or failure to act by the other party). This paragraph will not apply to any payment obligation of either party.
10.2 No Consequential Damages. NEITHER AESTHETICS PRO ONLINE NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OWNERS, SUPPLIERS AND THE PROVIDERS OF THIRD PARTY CONTENT WILL BE LIABLE TO COMPANY OR ANY AUTHORIZED USERS, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE, DATA, CREDIT CARD FRAUD, INFORMATION CONTAINED IN EDITABLE TEXT FORMS BUSINESS OR USE) EVEN IF AESTHETICS PRO ONLINE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING FROM OR RELATED TO ANY PROVISION OF THIS AGREEMENT, THE SERVICES, THE AESTHETICS PRO ONLINE TECHNOLOGY OR ANY SOFTWARE, SERVICES OR OTHER ITEMS PROVIDED IN CONNECTION THEREWITH, OR THE FAILURE OF AESTHETICS PRO ONLINE TO PERFORM ITS OBLIGATIONS, REGARDLESS OF ANY NEGLIGENCE BY AESTHETICS PRO ONLINE.
10.3 Limitation of Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF AESTHETICS PRO ONLINE WITH REGARD TO THE SERVICES, THE AESTHETICS PRO ONLINE TECHNOLOGY AND ANY SOFTWARE, SERVICES OR OTHER ITEMS PROVIDED OR FAILED TO BE PROVIDED UNDER THIS AGREEMENT EXCEED THE COMPENSATION PAID BY COMPANY TO AESTHETICS PRO ONLINE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE ACCRUAL OF SUCH CLAIM. COMPANY’S RIGHT TO MONETARY DAMAGES UP TO THAT AMOUNT WILL BE IN LIEU OF ALL OTHER
REMEDIES THAT COMPANY MAY HAVE AGAINST AESTHETICS PRO ONLINE OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OWNERS, AND SUPPLIERS.
THE LIMITATIONS SET FORTH IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE AMOUNTS PAYABLE HEREUNDER REFLECTS THIS ALLOCATION OF RISK BETWEEN THE PARTIES. Some states do not allow the limitation or exclusion of incidental or consequential damages, and where applicable the above limitations or exclusions shall apply to the maximum extent permitted by applicable law.
11. Miscellaneous
11.1 Compliance with Laws. In performance of their respective obligations under this Agreement, each party will comply with all applicable laws, rules, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction.
11.2 Independent Contractors. Each party is an independent contractor and not a partner or agent of the other. This Agreement will not be interpreted or construed as creating or evidencing any partnership or agency between the parties or as imposing any partnership or agency obligations or liability upon either party. Further, neither party is authorized to, and will not, enter into or incur any agreement, contract, commitment, obligation or liability in the name of or otherwise on behalf of the other party.
11.3 Notices. Any notice or other communication under this Agreement given by either party to the other party will be deemed to be properly given if given in writing and delivered in person, sent via overnight courier or mailed via registered mail, properly addressed and stamped with the required postage, to the intended recipient at its address specified on the signature page of this Agreement. Notice will be effective upon receipt. Either party may from time to time change its address for purposes of this paragraph by giving the other party notice of the change in accordance with this paragraph.
11.4 Assignment. Neither party will assign this Agreement without the prior written consent of the other party; provided, however, either party may assign this Agreement without such consent to any subsidiary or parent company of such party or to any successor by way of any merger, consolidation or other corporate reorganization of such party or sale of all or substantially all of the assets of such party, provided that such subsidiary or parent company or successor assumes or is otherwise fully bound by all of the obligations of the assigning party under this Agreement. No assignment, with or without such consent, will relieve any party from its obligations under this Agreement. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
11.5 Nonwaiver. The failure of either party to insist upon or enforce performance by the other party of any provision of this Agreement, or to exercise any right or remedy under this Agreement or otherwise by law, will not be construed as a waiver or relinquishment of such party's right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right or remedy will be and remain in full force and effect.
11.6 Severability. This Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision and (b) such invalidity or unenforceability will not affect any other provision of this Agreement.
11.7 Applicable Law; Jurisdiction and Venue. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of Washington, U.S.A., without reference to its choice of law principles to the contrary. Company hereby consents to the jurisdiction and venue of the state and federal courts located in Spokane County, State of Washington, U.S.A. with respect to any claim arising under or by reason of this Agreement. Company will not prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement except in such courts.
11.8 HIPAA Compliance. Aesthetics Pro Online adheres to all HIPAA Compliance requirements and regulations as set forth by the HHS and defined in Section 1 – “Definitions”.