Thank you for choosing Aesthetics HQ LLC. Aesthetics HQ provides a software system through a software as a service model, referred to as the Aesthetics HQ platform (the “Platform”) for use by healthcare specialists, professionals, providers, organizations, and agents thereof (each a “Provider”) in order to connect with potential new clients. Aesthetics HQ LLC is referred to in these Terms of Service as “Aesthetics HQ” or simply “we” or “us.”
By clicking “I agree” and purchasing a subscription to use the Platform, you are entering into a binding agreement with us. If you are an individual acting on behalf of an individual provider or entity, you accept the following terms and conditions (“Terms of Service”) on the provider or entity’s behalf and the term “you” will refer to you and the provider or entity.
THESE TERMS OF SERVICE TAKE EFFECT WHEN YOU CLICK THE "I AGREE” BUTTON WHEN COMPLETING YOUR ONLINE SUBSCRIPTION PURCHASE (THE "EFFECTIVE DATE"). BY CLICKING ON THE "I AGREE” BUTTON AND ACCESSING OR USING THE PLATFORM YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE AND, IF ENTERING INTO THESE TERMS OF SERVICE FOR A PROVIDER OR ENTITY, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT PROVIDER OR ENTITY; AND (C) ACCEPT THESE TERMS OF SERVICE AND AGREE THAT YOU ARE LEGALLY BOUND BY SUCH TERMS.
AGREEMENT TO THESE TERMS:
By using the Platform, you are instructing us to share your data across our Platform for marketing and sharing your service offerings with potential new clients, connecting you with potential new clients, providing client a means to request appointments with you and other purposes described in our Privacy Policy and on our website.
To access and/or use the Platform and all software, features and functionality provided therein, the mobile application to the extent made available, and the website (collectively, the “Services”), you acknowledge and accept the terms and conditions of these Terms of Service which include:
Aesthetics HQ’s Privacy Policy;
Aesthetics HQ’s Website Terms of Use;
Aesthetics HQ’s Medical Disclaimer;
Aesthetics HQ’s HIPAA Business Associate Agreement;
The current version of the terms set forth herein;
You are at least 18 years of age; and
You are capable of forming a binding contract with Aesthetics HQ.
YOUR PERSONAL INFORMATION:
You agree that Aesthetics HQ may use and maintain your personal information according to our Privacy Policy and any changes made to the Privacy Policy as published by Aesthetics HQ. To the extent that you input personal information (as the term is defined under applicable Laws) about individuals other than yourself, you represent and warrant that you have complied with all applicable Laws and received the proper authority or consent to allow us to collect, process and use such information to operate our business.
CREATION OF PROVIDER ACCOUNT AND DASHBOARD:
You will need to create a Provider account and dashboard in order to use the Platform. We will need to verify your identity and credentialing and you authorize us to collect information (e.g., state of licensure, NPI number, address, provider information, etc.) from you to do so (collectively, with all information requested to enable your account, “Provider Account Information”). You will provide accurate, up-to-date Provider Account Information, and we disclaim any liability arising from your failure to do so. Failure to provide accurate and up-to-date Provider Account Information may limit your ability to use the Platform and affect the Platform's accuracy and effectiveness.
To ensure compliance with applicable federal and state laws, because Aesthetics HQ may have access to certain client health information, Provider is required to agree to Aesthetics HQ’s business associate agreement governing the safety and security of such information. The terms of our business associate agreement are displayed at the bottom of these Terms of Service, and are hereby incorporated by reference.
ACCESS AND USE:
Provision of Access.
Subject to and conditioned on your payment of the Subscription Fees (defined in Section 4) and compliance with all terms and conditions of these Terms of Service, Aesthetics HQ hereby grants Provider a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Platform and Services during the Subscription Period solely for your business operations by Authorized End Users in accordance with the terms and conditions herein. "Authorized End Users" means and refers to Provider and Provider's employees, contractors, and agents: (i) who are authorized by Provider to access and use the Platform and Services under the rights granted to Provider pursuant to these Terms of Service; and (ii) for whom access to the Platform and Services has been purchased hereunder.
Use Restrictions.
You shall not, and shall not permit any Authorized End Users to, use the Services or Platform for any purposes beyond the scope of the access granted in these Terms of Service. You shall not at any time, directly or indirectly, and shall not permit any Authorized End Users to: (i) copy, modify, or create derivative works of the Services or Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Platform except as expressly permitted under these Terms of Service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or Platform, in whole or in part; or (iv) use the Services or Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right or other right of any person, or that violates any applicable Laws.
We take privacy and copyright rights seriously at Aesthetics HQ. We respect the privacy and copyrights of others and expect you to do the same. If you repeatedly violate the privacy rights of individuals or infringe the copyrights of others, we may terminate your account. Aesthetics HQ may terminate your use of the Platform based on our reasonable suspicion that your activities, business or products are objectionable or promote, support or engage in any of the prohibited uses described above.
Aggregated Data and Statistics.
Notwithstanding anything to the contrary in these Terms of Service, Aesthetics HQ may monitor Provider's use of the Services and collect and compile data and information related to Provider's use of the Services to be used by Aesthetics HQ in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Aesthetics HQ and Provider, all right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by Aesthetics HQ. You acknowledge that Aesthetics HQ may compile Aggregated Statistics based on Provider Data and Materials (defined in Section 7) input into the Services. You agree that Aesthetics HQ may: (i) make Aggregated Statistics publicly available in compliance with applicable Laws; and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Laws.
Reservation of Rights.
Aesthetics HQ reserves all rights not expressly granted to Provider in these Terms of Service. Except for the limited rights and licenses expressly granted under these Terms of Service, nothing in these Terms of Service grants, by implication, waiver, estoppel, or otherwise, to Provider or any third-party any Intellectual Property rights or other right, title, or interest in or to the Aesthetics HQ Intellectual Property or Services.
SUBSCRIPTION FEES; AUTOMATIC RENEWAL; PAYMENT:
Subscription Fees.
Provider shall pay Aesthetics HQ the onboarding fee and license fee as described on the Aesthetics HQ website associated with the applicable subscription being purchased (collectively the "Subscription Fee") before Provider will be provided with access to the Platform. Provider is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Provider hereunder, other than any taxes imposed on Aesthetics HQ's income.
Automatic Renewal.
You will be charged the Subscription Fee in advance on a recurring annual basis. Your subscription to Aesthetics HQ will automatically renew for additional one year periods and you will automatically be charged the applicable Subscription Fees in effect on the date of renewal. Your Subscription Term will automatically renew, unless you tell us that you do not wish to renew by providing at least ninety (90) days advance notice of your intent not to renew.
For annual subscriptions, we will send you a reminder with the then-current Subscription Fee no less than thirty (30) days before your Subscription Period ends, or otherwise as required by applicable Laws.
Payments.
Payments will be billed in U.S. dollars. You will be charged during sign-up, when you provide your payment information to our third-party payment processor, and annually thereafter. If your payment information is not accurate, current, and complete, we may suspend or terminate your account. If you do not notify our third-party payment processor with updates to your payment information, our payment processor may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that is obtained.
By clicking "I agree" while signing-up for the Platform, I acknowledge and agree that Aesthetics HQ’s third-party payment processor, currently Stripe, Inc. (“Stripe”) is authorized to charge me for all Subscription Fees due during the Subscription Period and any renewal Subscription Period.
PRICE ADJUSTMENTS; CANCELLATIONS; BILLING DISPUTES:
Price Adjustments
Aesthetics HQ may change the price for recurring Subscription Fees from time to time with notice to you. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal. Price changes will take effect at the start of the next Subscription Period following the date of the price change.
Cancellation.
During the Subscription Period and any renewal Subscription Periods, you may choose not to renew your subscription or cancel your subscription early, provided that, we will not provide any refunds. If you cancel in the middle of a Subscription Period, you will no longer be able to continue to access and use the Platform or Services. We do not provide refunds or credits for any cancellations or partial Subscription Period, or if you decide to stop using your subscription during your Subscription Period.
Billing Disputes.
Provider agrees to first contact Aesthetics HQ before seeking a chargeback or disputing any payments made for the Services. If Provider believes that Aesthetics HQ has billed Provider incorrectly, Provider must contact Aesthetics HQ no later than thirty (30) days after receipt of the invoice in which the error or problem appeared. Inquiries should be directed to Aesthetics HQ’s customer support department at support@aestheticshq.com.
PROVIDER RESPONSIBILITIES:
Account Use.
You are responsible and liable for all use of the Services and Platform resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of these Terms of Service. Provider shall exercise such lawful supervision and control over its Authorized End Users. Provider shall be responsible for all acts and omissions of Authorized End Users, and for any Losses, or Third-Party Claims which results directly or indirectly from any act or omission of any Authorized End User or other use which is unlawful or not in compliance with any of the terms and conditions of these Terms of Service, or any third-party terms and conditions. You shall use reasonable efforts to make all Authorized End Users aware of the provisions of these Terms of Service as applicable to such Authorized End User's use of the Services and shall cause Authorized End Users to comply with such provisions.
Passwords and Access Credentials; Security.
You are responsible for keeping your passwords and access credentials associated with the Platform and Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials. You are further responsible for maintaining commercially reasonable administrative, technical, and physical safeguards to protect data, user names and passwords in your possession and control from unauthorized access, accidental loss and unauthorized modification. Aesthetics HQ shall not be liable for any losses or damages that you or others may suffer arising out of or relating to the hacking, tampering or otherwise unauthorized access or use of the Services arising from your account.
Notice of Privacy Practice.
Provider acknowledges that it is solely responsible for providing clients with a notice of privacy practice at the first instance of a Client receiving services from that Provider.
PROVIDER DATA AND MATERIALS (INCLUDING BEFORE AND AFTER PHOTOGRAPHS):
Provider Data and Materials.
All Provider Account Information and all other personally identifiable information, designs, graphics, data, information, content, images, photographs and other materials that you provide to us or upload to your account or dashboard, including but not limited to, biographical information, provider images, before and after photographs and other information that you send to us, post, display or otherwise make available through the Platform or the Services (collectively, “Provider Data and Materials”), is and remains your property. Aesthetics HQ’s practices relating to the use and protection of any personally identifiable information provided to Aesthetics HQ are detailed in Aesthetics HQ’s Privacy Policy. You consent to Aesthetics HQ’s collection, use, storage and transmission of such Provider Data and Materials, including any personally identifiable information, for Aesthetics HQ’s business and commercial purposes and activities.
License to Provider Data and Materials.
You hereby grant to Aesthetics HQ a royalty-free, fully-paid up, non-exclusive right and license to use, reproduce, modify, publish, distribute, perform, display, store, disclose consistent with the terms of the Privacy Policy, and transmit the Provider Data and Materials through the Platform and Services, for any and all commercial and non-commercial purposes, and perform all acts with respect to the Provider Data and Materials as may be necessary for Aesthetics HQ to provide the Services to you. You will ensure that Provider Data and Materials and any use of Provider Data and Materials will not violate any policy or terms referenced in or incorporated into these Terms of Service or any applicable Laws.
Representations and Warranties Related to Provider Data and Materials.
By sending, uploading, posting or otherwise making available any Provider Data and Materials, you represent and warrant you have rights as owner of the Provider Data and Materials to grant the foregoing license. You acknowledge that you are responsible for all Provider Data and Materials that you submit, and you, not Aesthetics HQ, have full responsibility for the Provider Data and Materials, including their legality, reliability, appropriateness, originality, and/or copyright.
Any Provider Data and Materials posted to the Platform will be deemed NOT CONFIDENTIAL. By uploading any Provider Data and Materials, you represent and warrant that: (i) you own or otherwise control all of the rights to Provider Data and Materials including, without limitation, all the rights necessary for you to provide, post, upload, input, share or submit the Provider Data and Materials; (ii) you have the necessary consent and permission from any individuals depicted in any photographs to share and display the Provider Data and Materials; and (iii) you have the rights necessary to grant the license described in these Terms of Service. You acknowledge that Aesthetics HQ is not responsible for the accuracy or privacy of any Provider Data and Materials. All Provider Data and Materials, whether publicly posted or privately transmitted, are the sole responsibility of the persons from whom such Provider Data and Materials originated. This means that you, and not Aesthetics HQ, are entirely responsible for all Provider Data and Materials that you post, upload or otherwise submit to the Platform.
AESTHETICS HQ INTELLECTUAL PROPERTY:
Intellectual Property.
“Intellectual Property” means: (i) all works of authorship, including without limitation, all literary works, pictorial and graphic works, software, videos, and any other work that may be the subject matter of copyright protection and all worldwide registrations thereof (“Copyrights”); (ii) any trademarks, service marks, brand names, trade dress, trade names, designs and any other word, symbol, device, product configuration, slogan or any combination thereof used to distinguish or identify goods or services that may be the subject matter of trademark protection, including all worldwide applications and registrations therefore and associated goodwill (“Trademarks”); (iii) any patents, invention disclosures or inventions, including all methods, business methods, processes, machines, manufactures, systems and compositions of matter, designs and any other inventions that may be the subject matter of patent protection, and all worldwide statutory or other legal protection obtained or obtainable therein (“Patents”); (iv) all domain names, URLs, websites, and all data, content, “look and feel”, operating and underlying code or software of all websites and platform; and (v) all trade secrets, proprietary information, data, and knowledge and experience of a technical, commercial or administrative nature, including all proprietary information, know-how, information processes, operating, maintenance and other manuals, data and databases, computer programs, including all documentation, design specifications, and flowcharts, operational and other plans, schematics and drawings, data and lists, advertising (“Know-how”), marketing and product concepts and campaigns and other valuable or proprietary information or data.
Aesthetics HQ Intellectual Property.
Aesthetics HQ shall own and retain exclusive ownership of all right, title and interest in and to all Aesthetics HQ Intellectual Property. “Aesthetics HQ Intellectual Property” shall mean and include: (i) the Platform, the Aesthetics HQ mobile application and Aesthetics HQ website (including without limit all software, templates, object code, source code, middleware, APIs, interfaces, connectors, software layers, shims, work flows, engines, flow charts, documentation), modifications, updates, and upgrades; and (ii) all related Intellectual Property rights, and derivative works thereof; (iii) any improvements, enhancements, modifications and updates to any of the foregoing; and (vi) any Intellectual Property created by Aesthetics HQ in the provision of Services.
THIRD-PARTY PRODUCTS AND SERVICES:
Third-Party Products and Services.
“Third-Party Product(s)” means a product, software, or service, including but not limited to all materials, data, designs, content, information, graphics, photographs, animations, audio and video contained therein, which is provided by a third-party provider, but which Aesthetics HQ provides access to through the Platform for use by Provider, by direct contract with the third-party or products/services which third parties make available to Provider directly for use through the Platform.
The Platform may also include information about or offers for Third-Party Products, including but not limited to insurance programs. Access to and use of Third-Party Products by Provider may also be subject to third-party terms and conditions (if required by the third-party) in addition to the terms and conditions of these Terms of Service. Provider may be able to view the relevant terms, conditions, licenses and/or notices for such Third-Party Products on their respective websites. As applicable, the terms of Providers use of the Third-Party Products is subject to and governed by the applicable third-party terms and conditions and privacy policies.
No Warranty; Indemnity for Third-Party Products.
Provider acknowledges and agrees that Aesthetics HQ is not responsible for any Third-Party Products, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Aesthetics HQ does not assume and will not have any liability or responsibility to Provider or any other person or entity for any use of or reliance on any Third-Party Products. Third-Party Products and links thereto are provided solely as a convenience to Provider and access and use of them is entirely at Providers own risk. By providing Provider with Third Party Products, Aesthetics HQ makes no representations, warranties, approvals, or endorsements regarding the Third-Party Products provided or the nature, quality, or accuracy of such Third-Party Products. Aesthetics HQ shall have no responsibility or liability to Provider for any actions, omissions, breaches or negligence of Provider as it relates to use of such products and such Third-Party terms and conditions, including without limit, any claims, damages, costs, liabilities, expenses or fees (including attorneys fees), and Provider agrees to indemnify Aesthetics HQ for any Third-Party Claims arising from such Provider actions, omissions, breaches or negligence.
REPRESENTATIONS AND WARRANTIES:
Mutual Representations and Warranties.
Provider and Aesthetics HQ represents and warrants to one another that: (i) it is duly organized, validly existing and in good standing as a legal entity under the laws of the jurisdiction under whose laws it was organized or formed; (ii) it has been duly authorized and has full legal capacity and all power and authority necessary to agree to these Terms of Service and to legally bind that party to all terms and conditions of these Terms of Service; (iii) entering into these Terms of Service does not conflict with or violate any other agreement the party may have with any third-party; and (iv) upon payment of the Subscription Fees, these Terms of Service will become the legally binding and valid obligation of such party, enforceable against such party in accordance with its terms and conditions.
Additional Provider Representations and Warranties.
Provider further represents and warrants to Aesthetics HQ that: (i) Provider will comply at all times with all applicable Laws in connection with the use of and access to the Platform and Third-Party Products provided therein and otherwise in connection with the exercise of its rights and performance of its obligations under these Terms of Service; (ii) Provider will be solely responsible for updating, maintaining and controlling all Provider Data and Materials and ensuring the Provider has all necessary consents and permissions required to upload such information to the Platform and for Aesthetics HQ to share such information; and (iii) for all acts, omissions, negligence and willful acts of Provider and Provider’s Authorized End Users and all use occurring under or through the use of Provider’s account and dashboard.
CONFIDENTIALITY:
Non-Disclosure of Confidential Information.
Provider and Aesthetics HQ acknowledge that each party may be exposed to or acquire communications or data of the other party that is confidential and privileged and not intended to be disclosed to third parties.
Meaning of Confidential Information.
For the purposes of this Agreement, the term “Confidential Information” shall mean: (i) all information and documentation of a party that has been marked “confidential” or with words of similar meaning, at the time of disclosure by such entity; (ii) all information about Authorized End Users that is individually identifiable; and (iii) all source code and object code owned or used by Aesthetics HQ related to the Services or any software, provided as part of or in association with the Services (iv) all information related to clients and potential clients, their personally identifiable information and their appointment requests. The term “Confidential Information” does not include any information or documentation that was: (i) already in the possession of the receiving entity without an obligation of confidentiality; (ii) developed independently by the receiving entity, as demonstrated by the receiving entity, without violating the disclosing entity’s proprietary rights; (iii) obtained from a source other than the disclosing entity without an obligation of confidentiality; or (iv) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving entity).
Obligation of Confidentiality.
The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with the provision of Services hereunder or to use such Confidential Information for any purposes whatsoever other than the performance of this Terms of Service.
Cooperation to Prevent Disclosure of Confidential Information.
Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of these Terms of Services and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
Injunctive Relief Available.
Provider acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for a breach by Provider of Provider’s confidentiality obligations under this Agreement. Accordingly, and in addition to any other legal or equitable remedies that may be available, Aesthetics HQ may seek injunctive relief against a breach or threatened breach of the Provider’s confidentiality obligations under these Terms of Service. The provisions of this section shall survive the termination or cancellation of these Terms of Service.
FEEDBACK:
If you or any of your Authorized End User sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your Authorized End Users to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third-party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
CHATBOTS:
When you use the Platform, you may use or interact with automated features like chatbots, powered by artificial intelligence, or similar technologies (“Chatbots”). Information generated by Chatbots may not be unique. While Chatbots are designed to improve your experience, these technologies are evolving and may have limitations such as generating outputs that are inaccurate or inappropriate to your situation. Conversations with the chatbots may be logged and stored by Aesthetics HQ to assist Aesthetics HQ in providing and enhancing their Services.
SUBSCRIPTION PERIOD AND TERMINATION:
Subscription Period.
Unless terminated earlier and subject to the survival provisions expressly set forth in these Terms of Service, these Terms of Service shall be in effect for an initial term of twelve (12) months from the Effective Date (“Initial Subscription Period”). Unless Provider provides Aesthetics HQ with express written notice of non-renewal not later than ninety (90) calendar days before the end of the Initial Subscription Period, these Terms of Service shall automatically renew for additional twelve (12) month terms (“Renewal Subscription Term(s)”). For purposes of these Terms of Service, “Subscription Period” shall mean the Initial Subscription Period and any Renewal Subscription Period(s).
Termination or Suspension by Aesthetics HQ for Cause.
Aesthetics HQ shall have the right to terminate these Terms of Service, or suspend Provider’s subscription in Aesthetics HQ’s discretion, if: (i) Provider or any Authorized End User breaches any material term or obligations of these Terms of Service, including without limit, the licensed rights, Aesthetics HQ’s Intellectual Property rights, confidentiality restrictions, or any third-parties rights and Provider fails to cure such breach within ten (10) days after written notice thereof; (ii) Provider fails to timely pay any and all Subscription Fees due; (iii) Provider's or any other Authorized End User's use of the Services disrupts or poses a security risk to the Services; (iv) Provider or any other Authorized End User is using the Services for fraudulent or illegal activities; (v) subject to applicable Laws, Provider has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. Aesthetics HQ will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Provider or any other Authorized End User may incur as a result of a service suspension.
Effect of Termination.
Upon any termination Provider shall immediately cease all exercise of the rights under the subscription license and access and use of the Platform and shall cause all of its Authorized End Users to immediately cease all access and use of the Platform. Aesthetics HQ shall have the right to immediately terminate without notice any access or use of the Platform by Provider and its Authorized End Users. All payment obligations which have accrued under these Terms of Service at any time during the Subscription Period shall forever survive any termination or expiration of these Terms of Service. No termination will affect your obligation to pay all Subscription Fees due or that may have accrued through the effective date of termination or entitle you to any refund.
AESTHETICS HQ COMMUNICATIONS:
In order to properly support and serve you, we occasionally need to reach out and contact you, and may do so in a variety of ways such as via text message, email or messaging functionality in the Platform. We want to provide you options for receiving communications from us, and as such you may opt-in or opt-out of receiving certain types of communications from us or sign up to receive certain kinds of messages from us. You will need to notify us of any changes to your contact details to ensure your preferences are updated.
You may provide us with your telephone number as part of your Provider record or registration or via other methods. You understand and agree that Aesthetics HQ may use your telephone number for multi-factor authentication (“MFA”), to confirm your identity and help protect the security of your account. Part of the MFA identity verification process may involve Aesthetics HQ sending text messages containing security codes to your telephone number. You agree to receive these texts from Aesthetics HQ containing security codes as part of the MFA process. In addition, you agree that Aesthetics HQ may send automated text messages and pre-recorded voice messages to the telephone number you provide for other limited purposes, including: providing you with important critical notices regarding your use of the Services, or fulfilling a request made by you through the Services.
LIMITED WARRANTY AND WARRANTY DISCLAIMER:
Aesthetics HQ warrants that it provides the Services and Platform using a commercially reasonable level of care and skill.
THE FOREGOING WARRANTY DOES NOT APPLY, AND AESTHETICS HQ STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE THE SERVICES ARE PROVIDED "AS IS" AND AESTHETICS HQ SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AESTHETICS HQ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AESTHETICS HQ MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD-PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. AESTHETICS HQ DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT ANY DATA WILL REMAIN PRIVATE OR SECURE. AESTHETICS HQ MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, MATERIALS, DATA OR SERVICES.
INDEMNIFICATION:
Aesthetics HQ Indemnification.
Aesthetics HQ shall indemnify, defend, and hold harmless Provider from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Provider resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with these Terms of Service, infringes or misappropriates such third-party's U.S. Intellectual Property rights provided that Provider promptly notifies Aesthetics HQ in writing of the Third-Party Claim, cooperates with Aesthetics HQ, and allows Aesthetics HQ sole authority to control the defense and settlement of such Third-Party Claim.
If such a Third-Party Claim is made or either party reasonably anticipates such a Third-Party Claim will be made, Provider agrees to permit Aesthetics HQ, at Aesthetics HQ's sole discretion to: (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Provider to continue use. If Aesthetics HQ determines that neither alternative is reasonably available, Aesthetics HQ may terminate these Terms of Service, in its entirety or with respect to the affected component or part, effective immediately on written notice to Provider. This Section sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Services infringe, misappropriate, or otherwise violate any Intellectual Property rights of any third-party. This Section will not apply to the extent that any such Third-Party Claim arises from Provider Data and Materials or Third-Party Products.
Provider Indemnification.
Provider shall indemnify, hold harmless, and, at Aesthetics HQ's option, defend Aesthetics HQ and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim: (i) that the Provider Data and Materials, or any use of the Provider Data and Materials in accordance with these Terms of Service, infringes or misappropriates such third-party's Intellectual Property rights; (ii) that the Provider Data and Materials, including but not limited to any before and after photographs uploaded by Provider violating an individual’s right to privacy or confidentiality; or (iii) based on Provider's or any Authorized End User's negligence or willful misconduct or use of the Services in a manner not authorized by these Terms of Service. Provider may not settle any Third-Party Claim against Aesthetics HQ unless Aesthetics HQ consents to such settlement, and provided that Aesthetics HQ will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
LIMITATION OF LIABILITY:
IN NO EVENT WILL AESTHETICS HQ BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT SERVICES, IN EACH CASE REGARDLESS OF WHETHER AESTHETICS HQ WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL AESTHETICS HQ'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY PROVIDER TO AESTHETICS HQ UNDER THESE TERMS OF SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
DISPUTE RESOLUTION:
Notwithstanding any other provisions of these Terms of Service, any controversy or claim arising out of or relating to these Terms of Service, or the breach thereof, shall initially be submitted to authorized representatives of each party who agree to meet in good faith in an attempt to resolve any such dispute. If the parties cannot resolve a dispute through such a meeting then the dispute shall be submitted to binding arbitration in front of a single arbitrator, administered by the American Arbitration Association, under its Commercial Arbitration Rules, and judgment on the award rendered by the single arbitrator may be entered in any court having jurisdiction thereof. Venue for any such arbitration proceeding shall be in St. Johns County, Florida.
UPDATES TO THE TERMS OF SERVICE:
We may modify the provisions of these Terms of Service at any time. We may notify you of such modifications by posting through the Platform or on our website or by other means. It is important that you review these Terms of Service whenever we modify it because your continued use of the Platform indicates your agreement to the modifications. In some cases, you may need to accept changes to these Terms of Service to continue using the Platform. If you do not agree to the changes, you may stop using the Platform or terminate your account.
GENERAL TERMS AND CONDITIONS:
Entire Agreement and Modification.
The express written terms and conditions of these Terms of Service (including Aesthetics HQ’s Privacy Policy and Terms of Use, as such may be updated from time-to-time by Aesthetics HQ), each of which is hereby incorporated into these Terms of Service by reference, and the applicable subscription terms agreed to by Provider during sign-up, constitute the sole, exclusive, complete and final agreement and understanding of the Parties with respect to the subject matter of these Terms of Service and may not be waived, modified or rescinded, in whole or in part, except pursuant to a writing signed by duly authorized representatives of both parties. Any other prior and/or contemporaneous conversations, negotiations, understandings, agreements, expectations, promises, representations, covenants and warranties concerning the subject matter hereof are cancelled and superseded by these Terms of Service.
Compliance with Laws.
In exercising its rights under these Terms of Service, and carrying out its duties under these Terms of Service, each party shall comply with all applicable federal, state and local laws, regulations, rules, licensing requirements, privacy requirements, healthcare requirements, ordinances and other decrees of any governmental authority (collectively “Laws”). In the event either party at any time becomes aware of any facts or circumstances which involve, or appear reasonably likely to involve, any criminal conduct or imminent threat of criminal conduct by any party, each party shall have the right to notify law enforcement authorities and to cooperate fully with, but shall have no obligation to do so, unless and except to the extent as may otherwise be required by law or any bylaws, membership agreements, or other governing documents or policies of such party.
Governing Law, Venue, and Jurisdiction.
These Terms of Service will be governed and interpreted in accordance with the laws of the State of Delaware, United States of America, notwithstanding any principles of conflicts of law. If any party institutes a lawsuit or other action or proceeding pertaining to these Terms of Service, any right or obligation of any party hereunder, or any breach of these Terms of Service, then the sole and exclusive venue and jurisdiction for filing and maintaining any such lawsuit or other action or proceeding shall be in the Courts sitting in St. Johns County, Florida or the U.S. Northern District of Florida and each party waives the right to institute or maintain any such suit, action or proceeding in any other courts or forums whatsoever.
Export Regulation.
The Services may contain software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any law or regulation, including the U.S. Export Administration Act and its associated regulations (“Controlled Technology"). Provider shall not, and shall not knowingly cause, induce or permit, anyone to, export, re-export or release, directly or indirectly, any such Controlled Technology to any country, jurisdiction, person or entity to which the export, re-export or release of Controlled Technology: (i) is prohibited by applicable Laws or regulation; or (ii) without first obtaining the advance express written consent of Aesthetics HQ and completion all other legally required undertakings including obtaining all necessary export licenses and other governmental approvals. Aesthetics HQ shall have the right to deny or withhold its consent under this subsection in Aesthetics HQ’s sole discretion and for any reason or no reason.
Independent Contractors.
The relationship of Provider and Aesthetics HQ to one another is, and shall at all times remain, solely that of independent contractors. Nothing in these Terms of Service, or any course of performance hereunder, shall create any joint venture, partnership, or franchise or to constitute a party as principal, agent, master, servant, employer, employee, or fiduciary of the other party. No party nor any of its agents, shall have any express or implied power or authority of any kind to act on behalf of the other party, or to bind the other party or to incur any form liability or obligation on behalf of the other party.
Survival.
The confidentiality, indemnity, limitation of liability and each other provision of these Terms of Service that by its nature extends beyond the expiration or earlier termination of these Terms of Services will survive and continue in full force and effect after these Terms of Service expires or is earlier terminated.
Non-Waiver.
Notwithstanding the foregoing or any other provision of these Terms of Service, the waiver by either party of any default or breach of these Terms of Service shall not constitute a waiver of any subsequent default or breach, irrespective of its nature.
Severability.
If any provision of these Terms of Service, or any portion thereof, is held to be invalid, unlawful or unenforceable, such provision shall be severable from the remainder of these Terms of Service and shall be deemed stricken retroactively as of the Effective Date. The parties, or any tribunal of competent jurisdiction, shall substitute for the stricken provision a valid and enforceable provision that preserves the original intent and economic positions of the parties and the remaining provisions of these Terms of Service will remain in full force and effect. If any provision of these Terms of Service is invalid, illegal or unenforceable in a given jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction.
Assignment and Delegation.
Provider may not assign its rights or obligations under these Terms of Service to any third-party without first obtaining the express written consent of Aesthetics HQ. Aesthetics HQ may assign this these Terms of Service, and all of Aesthetics HQ’s rights and obligations hereunder to any of Aesthetics HQ’s subsidiaries or affiliates, to a parent entity, to a successor legal entity (by merger or otherwise), to any entity acquiring all or substantially all of the assets of Aesthetics HQ or to a purchaser of all or substantially all of the equity ownership interests of Aesthetics HQ.
LAST UPDATED: FEBRUARY 13, 2024
HIPAA Business Associate Agreement
February 2024
This HIPAA Business Associate Agreement (“BAA”) is part of our Provider Terms of Service and applies only to the extent that you, acting as a Covered Entity under HIPAA, share Protected Health Information about your consumers with us and to the extent we, as a result, are deemed under HIPAA to be acting as your Business Associate.
1. Definitions.
Words or expressions defined in “quotation marks” have the same meanings each time they are used in this BAA. Unless we say otherwise below, any words or expressions that are defined in the Provider Terms of Service have the same meanings when used in this BAA.
“Business Associate”, “Breach”, “Covered Entity”, “Required by Law”, “Security Incident” and “Subcontractor” have the definitions given under HIPAA.
“Services” means one or more of our services, as defined in the Terms of Service
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the rules and the regulations made under it, as amended.
“Protected Health Information” or “PHI” has the definition given to it under HIPAA and for purposes of this BAA is limited to PHI which is part of data to which we have access through the Services.
2. Permitted use and disclosure of PHI. Except as otherwise stated in this BAA, we will only use or disclose Services, or as Required by Law.
3. Security practices. We will use appropriate safeguards designed to prevent unauthorized use or disclosure of PHI, and as otherwise required under HIPAA, with respect to the Services.
On your request, we will provide you with sufficient information to enable you to check that we are complying with these security practices.
4. Notice of Privacy Practices. Covered Entity shall provide its Notice of Privacy Practices to all clients it serves during the clients first visit with Covered Entity.
5. Reporting. We will without undue delay after becoming aware of the facts, inform you in writing about any finding of a Security Incident (excluding any unsuccessful attempt) regarding PHI, including a Breach of unsecured PHI.
6. Subcontractors. We will take appropriate measures to ensure that any Subcontractors used to perform our obligations under the Terms of Service that require access to PHI are bound by written obligations that provide at least the same material level of protection for PHI as this BAA.
7. Access and amendment. We will provide you with access to PHI via the Services so that you may fulfill your obligations under HIPAA with respect to individuals’ rights of access and amendment, but will have no other obligations to you or any individual with respect to the rights afforded to individuals by HIPAA, including rights of access or amendment of PHI.
8. Accounting of disclosures. We will document our disclosures of PHI and make available the information required to provide an accounting of disclosures, as necessary to satisfy your obligations under HIPAA.
9. Access to records. Unless we are prohibited under applicable laws or regulations, we will make our internal practices, books, and records concerning the use and disclosure of PHI received from you, available to the Secretary of the U.S. Department of Health and Human Services (the “Secretary”) for the purpose of the Secretary determining your compliance with HIPAA.
10. Term and termination. If we materially breach this BAA, you may exercise your termination rights in accordance with the Terms of Service.
Upon termination of the Terms of Service we will return or delete (including anonymize) PHI received from you as part of your use of Services. This won’t apply to the extent that we are required under applicable laws or regulations to retain some or all of the PHI.
By clicking “I agree” and purchasing a subscription to use the Platform, you are entering into a binding agreement with us. If you are an individual acting on behalf of an individual provider or entity, you accept the following terms and conditions (“Terms of Service”) on the provider or entity’s behalf and the term “you” will refer to you and the provider or entity.
THESE TERMS OF SERVICE TAKE EFFECT WHEN YOU CLICK THE "I AGREE” BUTTON WHEN COMPLETING YOUR ONLINE SUBSCRIPTION PURCHASE (THE "EFFECTIVE DATE"). BY CLICKING ON THE "I AGREE” BUTTON AND ACCESSING OR USING THE PLATFORM YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE AND, IF ENTERING INTO THESE TERMS OF SERVICE FOR A PROVIDER OR ENTITY, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT PROVIDER OR ENTITY; AND (C) ACCEPT THESE TERMS OF SERVICE AND AGREE THAT YOU ARE LEGALLY BOUND BY SUCH TERMS.
AGREEMENT TO THESE TERMS:
By using the Platform, you are instructing us to share your data across our Platform for marketing and sharing your service offerings with potential new clients, connecting you with potential new clients, providing client a means to request appointments with you and other purposes described in our Privacy Policy and on our website.
To access and/or use the Platform and all software, features and functionality provided therein, the mobile application to the extent made available, and the website (collectively, the “Services”), you acknowledge and accept the terms and conditions of these Terms of Service which include:
Aesthetics HQ’s Privacy Policy;
Aesthetics HQ’s Website Terms of Use;
Aesthetics HQ’s Medical Disclaimer;
Aesthetics HQ’s HIPAA Business Associate Agreement;
The current version of the terms set forth herein;
You are at least 18 years of age; and
You are capable of forming a binding contract with Aesthetics HQ.
YOUR PERSONAL INFORMATION:
You agree that Aesthetics HQ may use and maintain your personal information according to our Privacy Policy and any changes made to the Privacy Policy as published by Aesthetics HQ. To the extent that you input personal information (as the term is defined under applicable Laws) about individuals other than yourself, you represent and warrant that you have complied with all applicable Laws and received the proper authority or consent to allow us to collect, process and use such information to operate our business.
CREATION OF PROVIDER ACCOUNT AND DASHBOARD:
You will need to create a Provider account and dashboard in order to use the Platform. We will need to verify your identity and credentialing and you authorize us to collect information (e.g., state of licensure, NPI number, address, provider information, etc.) from you to do so (collectively, with all information requested to enable your account, “Provider Account Information”). You will provide accurate, up-to-date Provider Account Information, and we disclaim any liability arising from your failure to do so. Failure to provide accurate and up-to-date Provider Account Information may limit your ability to use the Platform and affect the Platform's accuracy and effectiveness.
To ensure compliance with applicable federal and state laws, because Aesthetics HQ may have access to certain client health information, Provider is required to agree to Aesthetics HQ’s business associate agreement governing the safety and security of such information. The terms of our business associate agreement are displayed at the bottom of these Terms of Service, and are hereby incorporated by reference.
ACCESS AND USE:
Provision of Access.
Subject to and conditioned on your payment of the Subscription Fees (defined in Section 4) and compliance with all terms and conditions of these Terms of Service, Aesthetics HQ hereby grants Provider a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Platform and Services during the Subscription Period solely for your business operations by Authorized End Users in accordance with the terms and conditions herein. "Authorized End Users" means and refers to Provider and Provider's employees, contractors, and agents: (i) who are authorized by Provider to access and use the Platform and Services under the rights granted to Provider pursuant to these Terms of Service; and (ii) for whom access to the Platform and Services has been purchased hereunder.
Use Restrictions.
You shall not, and shall not permit any Authorized End Users to, use the Services or Platform for any purposes beyond the scope of the access granted in these Terms of Service. You shall not at any time, directly or indirectly, and shall not permit any Authorized End Users to: (i) copy, modify, or create derivative works of the Services or Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Platform except as expressly permitted under these Terms of Service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or Platform, in whole or in part; or (iv) use the Services or Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right or other right of any person, or that violates any applicable Laws.
We take privacy and copyright rights seriously at Aesthetics HQ. We respect the privacy and copyrights of others and expect you to do the same. If you repeatedly violate the privacy rights of individuals or infringe the copyrights of others, we may terminate your account. Aesthetics HQ may terminate your use of the Platform based on our reasonable suspicion that your activities, business or products are objectionable or promote, support or engage in any of the prohibited uses described above.
Aggregated Data and Statistics.
Notwithstanding anything to the contrary in these Terms of Service, Aesthetics HQ may monitor Provider's use of the Services and collect and compile data and information related to Provider's use of the Services to be used by Aesthetics HQ in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Aesthetics HQ and Provider, all right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by Aesthetics HQ. You acknowledge that Aesthetics HQ may compile Aggregated Statistics based on Provider Data and Materials (defined in Section 7) input into the Services. You agree that Aesthetics HQ may: (i) make Aggregated Statistics publicly available in compliance with applicable Laws; and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Laws.
Reservation of Rights.
Aesthetics HQ reserves all rights not expressly granted to Provider in these Terms of Service. Except for the limited rights and licenses expressly granted under these Terms of Service, nothing in these Terms of Service grants, by implication, waiver, estoppel, or otherwise, to Provider or any third-party any Intellectual Property rights or other right, title, or interest in or to the Aesthetics HQ Intellectual Property or Services.
SUBSCRIPTION FEES; AUTOMATIC RENEWAL; PAYMENT:
Subscription Fees.
Provider shall pay Aesthetics HQ the onboarding fee and license fee as described on the Aesthetics HQ website associated with the applicable subscription being purchased (collectively the "Subscription Fee") before Provider will be provided with access to the Platform. Provider is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Provider hereunder, other than any taxes imposed on Aesthetics HQ's income.
Automatic Renewal.
You will be charged the Subscription Fee in advance on a recurring annual basis. Your subscription to Aesthetics HQ will automatically renew for additional one year periods and you will automatically be charged the applicable Subscription Fees in effect on the date of renewal. Your Subscription Term will automatically renew, unless you tell us that you do not wish to renew by providing at least ninety (90) days advance notice of your intent not to renew.
For annual subscriptions, we will send you a reminder with the then-current Subscription Fee no less than thirty (30) days before your Subscription Period ends, or otherwise as required by applicable Laws.
Payments.
Payments will be billed in U.S. dollars. You will be charged during sign-up, when you provide your payment information to our third-party payment processor, and annually thereafter. If your payment information is not accurate, current, and complete, we may suspend or terminate your account. If you do not notify our third-party payment processor with updates to your payment information, our payment processor may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that is obtained.
By clicking "I agree" while signing-up for the Platform, I acknowledge and agree that Aesthetics HQ’s third-party payment processor, currently Stripe, Inc. (“Stripe”) is authorized to charge me for all Subscription Fees due during the Subscription Period and any renewal Subscription Period.
PRICE ADJUSTMENTS; CANCELLATIONS; BILLING DISPUTES:
Price Adjustments
Aesthetics HQ may change the price for recurring Subscription Fees from time to time with notice to you. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal. Price changes will take effect at the start of the next Subscription Period following the date of the price change.
Cancellation.
During the Subscription Period and any renewal Subscription Periods, you may choose not to renew your subscription or cancel your subscription early, provided that, we will not provide any refunds. If you cancel in the middle of a Subscription Period, you will no longer be able to continue to access and use the Platform or Services. We do not provide refunds or credits for any cancellations or partial Subscription Period, or if you decide to stop using your subscription during your Subscription Period.
Billing Disputes.
Provider agrees to first contact Aesthetics HQ before seeking a chargeback or disputing any payments made for the Services. If Provider believes that Aesthetics HQ has billed Provider incorrectly, Provider must contact Aesthetics HQ no later than thirty (30) days after receipt of the invoice in which the error or problem appeared. Inquiries should be directed to Aesthetics HQ’s customer support department at support@aestheticshq.com.
PROVIDER RESPONSIBILITIES:
Account Use.
You are responsible and liable for all use of the Services and Platform resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of these Terms of Service. Provider shall exercise such lawful supervision and control over its Authorized End Users. Provider shall be responsible for all acts and omissions of Authorized End Users, and for any Losses, or Third-Party Claims which results directly or indirectly from any act or omission of any Authorized End User or other use which is unlawful or not in compliance with any of the terms and conditions of these Terms of Service, or any third-party terms and conditions. You shall use reasonable efforts to make all Authorized End Users aware of the provisions of these Terms of Service as applicable to such Authorized End User's use of the Services and shall cause Authorized End Users to comply with such provisions.
Passwords and Access Credentials; Security.
You are responsible for keeping your passwords and access credentials associated with the Platform and Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials. You are further responsible for maintaining commercially reasonable administrative, technical, and physical safeguards to protect data, user names and passwords in your possession and control from unauthorized access, accidental loss and unauthorized modification. Aesthetics HQ shall not be liable for any losses or damages that you or others may suffer arising out of or relating to the hacking, tampering or otherwise unauthorized access or use of the Services arising from your account.
Notice of Privacy Practice.
Provider acknowledges that it is solely responsible for providing clients with a notice of privacy practice at the first instance of a Client receiving services from that Provider.
PROVIDER DATA AND MATERIALS (INCLUDING BEFORE AND AFTER PHOTOGRAPHS):
Provider Data and Materials.
All Provider Account Information and all other personally identifiable information, designs, graphics, data, information, content, images, photographs and other materials that you provide to us or upload to your account or dashboard, including but not limited to, biographical information, provider images, before and after photographs and other information that you send to us, post, display or otherwise make available through the Platform or the Services (collectively, “Provider Data and Materials”), is and remains your property. Aesthetics HQ’s practices relating to the use and protection of any personally identifiable information provided to Aesthetics HQ are detailed in Aesthetics HQ’s Privacy Policy. You consent to Aesthetics HQ’s collection, use, storage and transmission of such Provider Data and Materials, including any personally identifiable information, for Aesthetics HQ’s business and commercial purposes and activities.
License to Provider Data and Materials.
You hereby grant to Aesthetics HQ a royalty-free, fully-paid up, non-exclusive right and license to use, reproduce, modify, publish, distribute, perform, display, store, disclose consistent with the terms of the Privacy Policy, and transmit the Provider Data and Materials through the Platform and Services, for any and all commercial and non-commercial purposes, and perform all acts with respect to the Provider Data and Materials as may be necessary for Aesthetics HQ to provide the Services to you. You will ensure that Provider Data and Materials and any use of Provider Data and Materials will not violate any policy or terms referenced in or incorporated into these Terms of Service or any applicable Laws.
Representations and Warranties Related to Provider Data and Materials.
By sending, uploading, posting or otherwise making available any Provider Data and Materials, you represent and warrant you have rights as owner of the Provider Data and Materials to grant the foregoing license. You acknowledge that you are responsible for all Provider Data and Materials that you submit, and you, not Aesthetics HQ, have full responsibility for the Provider Data and Materials, including their legality, reliability, appropriateness, originality, and/or copyright.
Any Provider Data and Materials posted to the Platform will be deemed NOT CONFIDENTIAL. By uploading any Provider Data and Materials, you represent and warrant that: (i) you own or otherwise control all of the rights to Provider Data and Materials including, without limitation, all the rights necessary for you to provide, post, upload, input, share or submit the Provider Data and Materials; (ii) you have the necessary consent and permission from any individuals depicted in any photographs to share and display the Provider Data and Materials; and (iii) you have the rights necessary to grant the license described in these Terms of Service. You acknowledge that Aesthetics HQ is not responsible for the accuracy or privacy of any Provider Data and Materials. All Provider Data and Materials, whether publicly posted or privately transmitted, are the sole responsibility of the persons from whom such Provider Data and Materials originated. This means that you, and not Aesthetics HQ, are entirely responsible for all Provider Data and Materials that you post, upload or otherwise submit to the Platform.
AESTHETICS HQ INTELLECTUAL PROPERTY:
Intellectual Property.
“Intellectual Property” means: (i) all works of authorship, including without limitation, all literary works, pictorial and graphic works, software, videos, and any other work that may be the subject matter of copyright protection and all worldwide registrations thereof (“Copyrights”); (ii) any trademarks, service marks, brand names, trade dress, trade names, designs and any other word, symbol, device, product configuration, slogan or any combination thereof used to distinguish or identify goods or services that may be the subject matter of trademark protection, including all worldwide applications and registrations therefore and associated goodwill (“Trademarks”); (iii) any patents, invention disclosures or inventions, including all methods, business methods, processes, machines, manufactures, systems and compositions of matter, designs and any other inventions that may be the subject matter of patent protection, and all worldwide statutory or other legal protection obtained or obtainable therein (“Patents”); (iv) all domain names, URLs, websites, and all data, content, “look and feel”, operating and underlying code or software of all websites and platform; and (v) all trade secrets, proprietary information, data, and knowledge and experience of a technical, commercial or administrative nature, including all proprietary information, know-how, information processes, operating, maintenance and other manuals, data and databases, computer programs, including all documentation, design specifications, and flowcharts, operational and other plans, schematics and drawings, data and lists, advertising (“Know-how”), marketing and product concepts and campaigns and other valuable or proprietary information or data.
Aesthetics HQ Intellectual Property.
Aesthetics HQ shall own and retain exclusive ownership of all right, title and interest in and to all Aesthetics HQ Intellectual Property. “Aesthetics HQ Intellectual Property” shall mean and include: (i) the Platform, the Aesthetics HQ mobile application and Aesthetics HQ website (including without limit all software, templates, object code, source code, middleware, APIs, interfaces, connectors, software layers, shims, work flows, engines, flow charts, documentation), modifications, updates, and upgrades; and (ii) all related Intellectual Property rights, and derivative works thereof; (iii) any improvements, enhancements, modifications and updates to any of the foregoing; and (vi) any Intellectual Property created by Aesthetics HQ in the provision of Services.
THIRD-PARTY PRODUCTS AND SERVICES:
Third-Party Products and Services.
“Third-Party Product(s)” means a product, software, or service, including but not limited to all materials, data, designs, content, information, graphics, photographs, animations, audio and video contained therein, which is provided by a third-party provider, but which Aesthetics HQ provides access to through the Platform for use by Provider, by direct contract with the third-party or products/services which third parties make available to Provider directly for use through the Platform.
The Platform may also include information about or offers for Third-Party Products, including but not limited to insurance programs. Access to and use of Third-Party Products by Provider may also be subject to third-party terms and conditions (if required by the third-party) in addition to the terms and conditions of these Terms of Service. Provider may be able to view the relevant terms, conditions, licenses and/or notices for such Third-Party Products on their respective websites. As applicable, the terms of Providers use of the Third-Party Products is subject to and governed by the applicable third-party terms and conditions and privacy policies.
No Warranty; Indemnity for Third-Party Products.
Provider acknowledges and agrees that Aesthetics HQ is not responsible for any Third-Party Products, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Aesthetics HQ does not assume and will not have any liability or responsibility to Provider or any other person or entity for any use of or reliance on any Third-Party Products. Third-Party Products and links thereto are provided solely as a convenience to Provider and access and use of them is entirely at Providers own risk. By providing Provider with Third Party Products, Aesthetics HQ makes no representations, warranties, approvals, or endorsements regarding the Third-Party Products provided or the nature, quality, or accuracy of such Third-Party Products. Aesthetics HQ shall have no responsibility or liability to Provider for any actions, omissions, breaches or negligence of Provider as it relates to use of such products and such Third-Party terms and conditions, including without limit, any claims, damages, costs, liabilities, expenses or fees (including attorneys fees), and Provider agrees to indemnify Aesthetics HQ for any Third-Party Claims arising from such Provider actions, omissions, breaches or negligence.
REPRESENTATIONS AND WARRANTIES:
Mutual Representations and Warranties.
Provider and Aesthetics HQ represents and warrants to one another that: (i) it is duly organized, validly existing and in good standing as a legal entity under the laws of the jurisdiction under whose laws it was organized or formed; (ii) it has been duly authorized and has full legal capacity and all power and authority necessary to agree to these Terms of Service and to legally bind that party to all terms and conditions of these Terms of Service; (iii) entering into these Terms of Service does not conflict with or violate any other agreement the party may have with any third-party; and (iv) upon payment of the Subscription Fees, these Terms of Service will become the legally binding and valid obligation of such party, enforceable against such party in accordance with its terms and conditions.
Additional Provider Representations and Warranties.
Provider further represents and warrants to Aesthetics HQ that: (i) Provider will comply at all times with all applicable Laws in connection with the use of and access to the Platform and Third-Party Products provided therein and otherwise in connection with the exercise of its rights and performance of its obligations under these Terms of Service; (ii) Provider will be solely responsible for updating, maintaining and controlling all Provider Data and Materials and ensuring the Provider has all necessary consents and permissions required to upload such information to the Platform and for Aesthetics HQ to share such information; and (iii) for all acts, omissions, negligence and willful acts of Provider and Provider’s Authorized End Users and all use occurring under or through the use of Provider’s account and dashboard.
CONFIDENTIALITY:
Non-Disclosure of Confidential Information.
Provider and Aesthetics HQ acknowledge that each party may be exposed to or acquire communications or data of the other party that is confidential and privileged and not intended to be disclosed to third parties.
Meaning of Confidential Information.
For the purposes of this Agreement, the term “Confidential Information” shall mean: (i) all information and documentation of a party that has been marked “confidential” or with words of similar meaning, at the time of disclosure by such entity; (ii) all information about Authorized End Users that is individually identifiable; and (iii) all source code and object code owned or used by Aesthetics HQ related to the Services or any software, provided as part of or in association with the Services (iv) all information related to clients and potential clients, their personally identifiable information and their appointment requests. The term “Confidential Information” does not include any information or documentation that was: (i) already in the possession of the receiving entity without an obligation of confidentiality; (ii) developed independently by the receiving entity, as demonstrated by the receiving entity, without violating the disclosing entity’s proprietary rights; (iii) obtained from a source other than the disclosing entity without an obligation of confidentiality; or (iv) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving entity).
Obligation of Confidentiality.
The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with the provision of Services hereunder or to use such Confidential Information for any purposes whatsoever other than the performance of this Terms of Service.
Cooperation to Prevent Disclosure of Confidential Information.
Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of these Terms of Services and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
Injunctive Relief Available.
Provider acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for a breach by Provider of Provider’s confidentiality obligations under this Agreement. Accordingly, and in addition to any other legal or equitable remedies that may be available, Aesthetics HQ may seek injunctive relief against a breach or threatened breach of the Provider’s confidentiality obligations under these Terms of Service. The provisions of this section shall survive the termination or cancellation of these Terms of Service.
FEEDBACK:
If you or any of your Authorized End User sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your Authorized End Users to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third-party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
CHATBOTS:
When you use the Platform, you may use or interact with automated features like chatbots, powered by artificial intelligence, or similar technologies (“Chatbots”). Information generated by Chatbots may not be unique. While Chatbots are designed to improve your experience, these technologies are evolving and may have limitations such as generating outputs that are inaccurate or inappropriate to your situation. Conversations with the chatbots may be logged and stored by Aesthetics HQ to assist Aesthetics HQ in providing and enhancing their Services.
SUBSCRIPTION PERIOD AND TERMINATION:
Subscription Period.
Unless terminated earlier and subject to the survival provisions expressly set forth in these Terms of Service, these Terms of Service shall be in effect for an initial term of twelve (12) months from the Effective Date (“Initial Subscription Period”). Unless Provider provides Aesthetics HQ with express written notice of non-renewal not later than ninety (90) calendar days before the end of the Initial Subscription Period, these Terms of Service shall automatically renew for additional twelve (12) month terms (“Renewal Subscription Term(s)”). For purposes of these Terms of Service, “Subscription Period” shall mean the Initial Subscription Period and any Renewal Subscription Period(s).
Termination or Suspension by Aesthetics HQ for Cause.
Aesthetics HQ shall have the right to terminate these Terms of Service, or suspend Provider’s subscription in Aesthetics HQ’s discretion, if: (i) Provider or any Authorized End User breaches any material term or obligations of these Terms of Service, including without limit, the licensed rights, Aesthetics HQ’s Intellectual Property rights, confidentiality restrictions, or any third-parties rights and Provider fails to cure such breach within ten (10) days after written notice thereof; (ii) Provider fails to timely pay any and all Subscription Fees due; (iii) Provider's or any other Authorized End User's use of the Services disrupts or poses a security risk to the Services; (iv) Provider or any other Authorized End User is using the Services for fraudulent or illegal activities; (v) subject to applicable Laws, Provider has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. Aesthetics HQ will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Provider or any other Authorized End User may incur as a result of a service suspension.
Effect of Termination.
Upon any termination Provider shall immediately cease all exercise of the rights under the subscription license and access and use of the Platform and shall cause all of its Authorized End Users to immediately cease all access and use of the Platform. Aesthetics HQ shall have the right to immediately terminate without notice any access or use of the Platform by Provider and its Authorized End Users. All payment obligations which have accrued under these Terms of Service at any time during the Subscription Period shall forever survive any termination or expiration of these Terms of Service. No termination will affect your obligation to pay all Subscription Fees due or that may have accrued through the effective date of termination or entitle you to any refund.
AESTHETICS HQ COMMUNICATIONS:
In order to properly support and serve you, we occasionally need to reach out and contact you, and may do so in a variety of ways such as via text message, email or messaging functionality in the Platform. We want to provide you options for receiving communications from us, and as such you may opt-in or opt-out of receiving certain types of communications from us or sign up to receive certain kinds of messages from us. You will need to notify us of any changes to your contact details to ensure your preferences are updated.
You may provide us with your telephone number as part of your Provider record or registration or via other methods. You understand and agree that Aesthetics HQ may use your telephone number for multi-factor authentication (“MFA”), to confirm your identity and help protect the security of your account. Part of the MFA identity verification process may involve Aesthetics HQ sending text messages containing security codes to your telephone number. You agree to receive these texts from Aesthetics HQ containing security codes as part of the MFA process. In addition, you agree that Aesthetics HQ may send automated text messages and pre-recorded voice messages to the telephone number you provide for other limited purposes, including: providing you with important critical notices regarding your use of the Services, or fulfilling a request made by you through the Services.
LIMITED WARRANTY AND WARRANTY DISCLAIMER:
Aesthetics HQ warrants that it provides the Services and Platform using a commercially reasonable level of care and skill.
THE FOREGOING WARRANTY DOES NOT APPLY, AND AESTHETICS HQ STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE THE SERVICES ARE PROVIDED "AS IS" AND AESTHETICS HQ SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AESTHETICS HQ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AESTHETICS HQ MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD-PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. AESTHETICS HQ DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT ANY DATA WILL REMAIN PRIVATE OR SECURE. AESTHETICS HQ MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, MATERIALS, DATA OR SERVICES.
INDEMNIFICATION:
Aesthetics HQ Indemnification.
Aesthetics HQ shall indemnify, defend, and hold harmless Provider from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Provider resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with these Terms of Service, infringes or misappropriates such third-party's U.S. Intellectual Property rights provided that Provider promptly notifies Aesthetics HQ in writing of the Third-Party Claim, cooperates with Aesthetics HQ, and allows Aesthetics HQ sole authority to control the defense and settlement of such Third-Party Claim.
If such a Third-Party Claim is made or either party reasonably anticipates such a Third-Party Claim will be made, Provider agrees to permit Aesthetics HQ, at Aesthetics HQ's sole discretion to: (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Provider to continue use. If Aesthetics HQ determines that neither alternative is reasonably available, Aesthetics HQ may terminate these Terms of Service, in its entirety or with respect to the affected component or part, effective immediately on written notice to Provider. This Section sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Services infringe, misappropriate, or otherwise violate any Intellectual Property rights of any third-party. This Section will not apply to the extent that any such Third-Party Claim arises from Provider Data and Materials or Third-Party Products.
Provider Indemnification.
Provider shall indemnify, hold harmless, and, at Aesthetics HQ's option, defend Aesthetics HQ and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim: (i) that the Provider Data and Materials, or any use of the Provider Data and Materials in accordance with these Terms of Service, infringes or misappropriates such third-party's Intellectual Property rights; (ii) that the Provider Data and Materials, including but not limited to any before and after photographs uploaded by Provider violating an individual’s right to privacy or confidentiality; or (iii) based on Provider's or any Authorized End User's negligence or willful misconduct or use of the Services in a manner not authorized by these Terms of Service. Provider may not settle any Third-Party Claim against Aesthetics HQ unless Aesthetics HQ consents to such settlement, and provided that Aesthetics HQ will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
LIMITATION OF LIABILITY:
IN NO EVENT WILL AESTHETICS HQ BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT SERVICES, IN EACH CASE REGARDLESS OF WHETHER AESTHETICS HQ WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL AESTHETICS HQ'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY PROVIDER TO AESTHETICS HQ UNDER THESE TERMS OF SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
DISPUTE RESOLUTION:
Notwithstanding any other provisions of these Terms of Service, any controversy or claim arising out of or relating to these Terms of Service, or the breach thereof, shall initially be submitted to authorized representatives of each party who agree to meet in good faith in an attempt to resolve any such dispute. If the parties cannot resolve a dispute through such a meeting then the dispute shall be submitted to binding arbitration in front of a single arbitrator, administered by the American Arbitration Association, under its Commercial Arbitration Rules, and judgment on the award rendered by the single arbitrator may be entered in any court having jurisdiction thereof. Venue for any such arbitration proceeding shall be in St. Johns County, Florida.
UPDATES TO THE TERMS OF SERVICE:
We may modify the provisions of these Terms of Service at any time. We may notify you of such modifications by posting through the Platform or on our website or by other means. It is important that you review these Terms of Service whenever we modify it because your continued use of the Platform indicates your agreement to the modifications. In some cases, you may need to accept changes to these Terms of Service to continue using the Platform. If you do not agree to the changes, you may stop using the Platform or terminate your account.
GENERAL TERMS AND CONDITIONS:
Entire Agreement and Modification.
The express written terms and conditions of these Terms of Service (including Aesthetics HQ’s Privacy Policy and Terms of Use, as such may be updated from time-to-time by Aesthetics HQ), each of which is hereby incorporated into these Terms of Service by reference, and the applicable subscription terms agreed to by Provider during sign-up, constitute the sole, exclusive, complete and final agreement and understanding of the Parties with respect to the subject matter of these Terms of Service and may not be waived, modified or rescinded, in whole or in part, except pursuant to a writing signed by duly authorized representatives of both parties. Any other prior and/or contemporaneous conversations, negotiations, understandings, agreements, expectations, promises, representations, covenants and warranties concerning the subject matter hereof are cancelled and superseded by these Terms of Service.
Compliance with Laws.
In exercising its rights under these Terms of Service, and carrying out its duties under these Terms of Service, each party shall comply with all applicable federal, state and local laws, regulations, rules, licensing requirements, privacy requirements, healthcare requirements, ordinances and other decrees of any governmental authority (collectively “Laws”). In the event either party at any time becomes aware of any facts or circumstances which involve, or appear reasonably likely to involve, any criminal conduct or imminent threat of criminal conduct by any party, each party shall have the right to notify law enforcement authorities and to cooperate fully with, but shall have no obligation to do so, unless and except to the extent as may otherwise be required by law or any bylaws, membership agreements, or other governing documents or policies of such party.
Governing Law, Venue, and Jurisdiction.
These Terms of Service will be governed and interpreted in accordance with the laws of the State of Delaware, United States of America, notwithstanding any principles of conflicts of law. If any party institutes a lawsuit or other action or proceeding pertaining to these Terms of Service, any right or obligation of any party hereunder, or any breach of these Terms of Service, then the sole and exclusive venue and jurisdiction for filing and maintaining any such lawsuit or other action or proceeding shall be in the Courts sitting in St. Johns County, Florida or the U.S. Northern District of Florida and each party waives the right to institute or maintain any such suit, action or proceeding in any other courts or forums whatsoever.
Export Regulation.
The Services may contain software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any law or regulation, including the U.S. Export Administration Act and its associated regulations (“Controlled Technology"). Provider shall not, and shall not knowingly cause, induce or permit, anyone to, export, re-export or release, directly or indirectly, any such Controlled Technology to any country, jurisdiction, person or entity to which the export, re-export or release of Controlled Technology: (i) is prohibited by applicable Laws or regulation; or (ii) without first obtaining the advance express written consent of Aesthetics HQ and completion all other legally required undertakings including obtaining all necessary export licenses and other governmental approvals. Aesthetics HQ shall have the right to deny or withhold its consent under this subsection in Aesthetics HQ’s sole discretion and for any reason or no reason.
Independent Contractors.
The relationship of Provider and Aesthetics HQ to one another is, and shall at all times remain, solely that of independent contractors. Nothing in these Terms of Service, or any course of performance hereunder, shall create any joint venture, partnership, or franchise or to constitute a party as principal, agent, master, servant, employer, employee, or fiduciary of the other party. No party nor any of its agents, shall have any express or implied power or authority of any kind to act on behalf of the other party, or to bind the other party or to incur any form liability or obligation on behalf of the other party.
Survival.
The confidentiality, indemnity, limitation of liability and each other provision of these Terms of Service that by its nature extends beyond the expiration or earlier termination of these Terms of Services will survive and continue in full force and effect after these Terms of Service expires or is earlier terminated.
Non-Waiver.
Notwithstanding the foregoing or any other provision of these Terms of Service, the waiver by either party of any default or breach of these Terms of Service shall not constitute a waiver of any subsequent default or breach, irrespective of its nature.
Severability.
If any provision of these Terms of Service, or any portion thereof, is held to be invalid, unlawful or unenforceable, such provision shall be severable from the remainder of these Terms of Service and shall be deemed stricken retroactively as of the Effective Date. The parties, or any tribunal of competent jurisdiction, shall substitute for the stricken provision a valid and enforceable provision that preserves the original intent and economic positions of the parties and the remaining provisions of these Terms of Service will remain in full force and effect. If any provision of these Terms of Service is invalid, illegal or unenforceable in a given jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction.
Assignment and Delegation.
Provider may not assign its rights or obligations under these Terms of Service to any third-party without first obtaining the express written consent of Aesthetics HQ. Aesthetics HQ may assign this these Terms of Service, and all of Aesthetics HQ’s rights and obligations hereunder to any of Aesthetics HQ’s subsidiaries or affiliates, to a parent entity, to a successor legal entity (by merger or otherwise), to any entity acquiring all or substantially all of the assets of Aesthetics HQ or to a purchaser of all or substantially all of the equity ownership interests of Aesthetics HQ.
LAST UPDATED: FEBRUARY 13, 2024
HIPAA Business Associate Agreement
February 2024
This HIPAA Business Associate Agreement (“BAA”) is part of our Provider Terms of Service and applies only to the extent that you, acting as a Covered Entity under HIPAA, share Protected Health Information about your consumers with us and to the extent we, as a result, are deemed under HIPAA to be acting as your Business Associate.
1. Definitions.
Words or expressions defined in “quotation marks” have the same meanings each time they are used in this BAA. Unless we say otherwise below, any words or expressions that are defined in the Provider Terms of Service have the same meanings when used in this BAA.
“Business Associate”, “Breach”, “Covered Entity”, “Required by Law”, “Security Incident” and “Subcontractor” have the definitions given under HIPAA.
“Services” means one or more of our services, as defined in the Terms of Service
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the rules and the regulations made under it, as amended.
“Protected Health Information” or “PHI” has the definition given to it under HIPAA and for purposes of this BAA is limited to PHI which is part of data to which we have access through the Services.
2. Permitted use and disclosure of PHI. Except as otherwise stated in this BAA, we will only use or disclose Services, or as Required by Law.
3. Security practices. We will use appropriate safeguards designed to prevent unauthorized use or disclosure of PHI, and as otherwise required under HIPAA, with respect to the Services.
On your request, we will provide you with sufficient information to enable you to check that we are complying with these security practices.
4. Notice of Privacy Practices. Covered Entity shall provide its Notice of Privacy Practices to all clients it serves during the clients first visit with Covered Entity.
5. Reporting. We will without undue delay after becoming aware of the facts, inform you in writing about any finding of a Security Incident (excluding any unsuccessful attempt) regarding PHI, including a Breach of unsecured PHI.
6. Subcontractors. We will take appropriate measures to ensure that any Subcontractors used to perform our obligations under the Terms of Service that require access to PHI are bound by written obligations that provide at least the same material level of protection for PHI as this BAA.
7. Access and amendment. We will provide you with access to PHI via the Services so that you may fulfill your obligations under HIPAA with respect to individuals’ rights of access and amendment, but will have no other obligations to you or any individual with respect to the rights afforded to individuals by HIPAA, including rights of access or amendment of PHI.
8. Accounting of disclosures. We will document our disclosures of PHI and make available the information required to provide an accounting of disclosures, as necessary to satisfy your obligations under HIPAA.
9. Access to records. Unless we are prohibited under applicable laws or regulations, we will make our internal practices, books, and records concerning the use and disclosure of PHI received from you, available to the Secretary of the U.S. Department of Health and Human Services (the “Secretary”) for the purpose of the Secretary determining your compliance with HIPAA.
10. Term and termination. If we materially breach this BAA, you may exercise your termination rights in accordance with the Terms of Service.
Thank you for choosing Aesthetics HQ LLC. Aesthetics HQ provides a software system through a software as a service model, referred to as the Aesthetics HQ platform (the “Platform”) for use by healthcare specialists, professionals, providers, organizations, and agents thereof (each a “Provider”) in order to connect with potential new clients. Aesthetics HQ LLC is referred to in these Terms of Service as “Aesthetics HQ” or simply “we” or “us.”
By clicking “I agree” and purchasing a subscription to use the Platform, you are entering into a binding agreement with us. If you are an individual acting on behalf of an individual provider or entity, you accept the following terms and conditions (“Terms of Service”) on the provider or entity’s behalf and the term “you” will refer to you and the provider or entity.
THESE TERMS OF SERVICE TAKE EFFECT WHEN YOU CLICK THE "I AGREE” BUTTON WHEN COMPLETING YOUR ONLINE SUBSCRIPTION PURCHASE (THE "EFFECTIVE DATE"). BY CLICKING ON THE "I AGREE” BUTTON AND ACCESSING OR USING THE PLATFORM YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE AND, IF ENTERING INTO THESE TERMS OF SERVICE FOR A PROVIDER OR ENTITY, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT PROVIDER OR ENTITY; AND (C) ACCEPT THESE TERMS OF SERVICE AND AGREE THAT YOU ARE LEGALLY BOUND BY SUCH TERMS.
AGREEMENT TO THESE TERMS:
By using the Platform, you are instructing us to share your data across our Platform for marketing and sharing your service offerings with potential new clients, connecting you with potential new clients, providing client a means to request appointments with you and other purposes described in our Privacy Policy and on our website.
To access and/or use the Platform and all software, features and functionality provided therein, the mobile application to the extent made available, and the website (collectively, the “Services”), you acknowledge and accept the terms and conditions of these Terms of Service which include:
Aesthetics HQ’s Privacy Policy;
Aesthetics HQ’s Website Terms of Use;
Aesthetics HQ’s Medical Disclaimer;
Aesthetics HQ’s HIPAA Business Associate Agreement;
The current version of the terms set forth herein;
You are at least 18 years of age; and
You are capable of forming a binding contract with Aesthetics HQ.
YOUR PERSONAL INFORMATION:
You agree that Aesthetics HQ may use and maintain your personal information according to our Privacy Policy and any changes made to the Privacy Policy as published by Aesthetics HQ. To the extent that you input personal information (as the term is defined under applicable Laws) about individuals other than yourself, you represent and warrant that you have complied with all applicable Laws and received the proper authority or consent to allow us to collect, process and use such information to operate our business.
CREATION OF PROVIDER ACCOUNT AND DASHBOARD:
You will need to create a Provider account and dashboard in order to use the Platform. We will need to verify your identity and credentialing and you authorize us to collect information (e.g., state of licensure, NPI number, address, provider information, etc.) from you to do so (collectively, with all information requested to enable your account, “Provider Account Information”). You will provide accurate, up-to-date Provider Account Information, and we disclaim any liability arising from your failure to do so. Failure to provide accurate and up-to-date Provider Account Information may limit your ability to use the Platform and affect the Platform's accuracy and effectiveness.
To ensure compliance with applicable federal and state laws, because Aesthetics HQ may have access to certain client health information, Provider is required to agree to Aesthetics HQ’s business associate agreement governing the safety and security of such information. The terms of our business associate agreement are displayed at the bottom of these Terms of Service, and are hereby incorporated by reference.
ACCESS AND USE:
Provision of Access.
Subject to and conditioned on your payment of the Subscription Fees (defined in Section 4) and compliance with all terms and conditions of these Terms of Service, Aesthetics HQ hereby grants Provider a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Platform and Services during the Subscription Period solely for your business operations by Authorized End Users in accordance with the terms and conditions herein. "Authorized End Users" means and refers to Provider and Provider's employees, contractors, and agents: (i) who are authorized by Provider to access and use the Platform and Services under the rights granted to Provider pursuant to these Terms of Service; and (ii) for whom access to the Platform and Services has been purchased hereunder.
Use Restrictions.
You shall not, and shall not permit any Authorized End Users to, use the Services or Platform for any purposes beyond the scope of the access granted in these Terms of Service. You shall not at any time, directly or indirectly, and shall not permit any Authorized End Users to: (i) copy, modify, or create derivative works of the Services or Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Platform except as expressly permitted under these Terms of Service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or Platform, in whole or in part; or (iv) use the Services or Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right or other right of any person, or that violates any applicable Laws.
We take privacy and copyright rights seriously at Aesthetics HQ. We respect the privacy and copyrights of others and expect you to do the same. If you repeatedly violate the privacy rights of individuals or infringe the copyrights of others, we may terminate your account. Aesthetics HQ may terminate your use of the Platform based on our reasonable suspicion that your activities, business or products are objectionable or promote, support or engage in any of the prohibited uses described above.
Aggregated Data and Statistics.
Notwithstanding anything to the contrary in these Terms of Service, Aesthetics HQ may monitor Provider's use of the Services and collect and compile data and information related to Provider's use of the Services to be used by Aesthetics HQ in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Aesthetics HQ and Provider, all right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by Aesthetics HQ. You acknowledge that Aesthetics HQ may compile Aggregated Statistics based on Provider Data and Materials (defined in Section 7) input into the Services. You agree that Aesthetics HQ may: (i) make Aggregated Statistics publicly available in compliance with applicable Laws; and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Laws.
Reservation of Rights.
Aesthetics HQ reserves all rights not expressly granted to Provider in these Terms of Service. Except for the limited rights and licenses expressly granted under these Terms of Service, nothing in these Terms of Service grants, by implication, waiver, estoppel, or otherwise, to Provider or any third-party any Intellectual Property rights or other right, title, or interest in or to the Aesthetics HQ Intellectual Property or Services.
SUBSCRIPTION FEES; AUTOMATIC RENEWAL; PAYMENT:
Subscription Fees.
Provider shall pay Aesthetics HQ the onboarding fee and license fee as described on the Aesthetics HQ website associated with the applicable subscription being purchased (collectively the "Subscription Fee") before Provider will be provided with access to the Platform. Provider is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Provider hereunder, other than any taxes imposed on Aesthetics HQ's income.
Automatic Renewal.
You will be charged the Subscription Fee in advance on a recurring annual basis. Your subscription to Aesthetics HQ will automatically renew for additional one year periods and you will automatically be charged the applicable Subscription Fees in effect on the date of renewal. Your Subscription Term will automatically renew, unless you tell us that you do not wish to renew by providing at least ninety (90) days advance notice of your intent not to renew.
For annual subscriptions, we will send you a reminder with the then-current Subscription Fee no less than thirty (30) days before your Subscription Period ends, or otherwise as required by applicable Laws.
Payments.
Payments will be billed in U.S. dollars. You will be charged during sign-up, when you provide your payment information to our third-party payment processor, and annually thereafter. If your payment information is not accurate, current, and complete, we may suspend or terminate your account. If you do not notify our third-party payment processor with updates to your payment information, our payment processor may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that is obtained.
By clicking "I agree" while signing-up for the Platform, I acknowledge and agree that Aesthetics HQ’s third-party payment processor, currently Stripe, Inc. (“Stripe”) is authorized to charge me for all Subscription Fees due during the Subscription Period and any renewal Subscription Period.
PRICE ADJUSTMENTS; CANCELLATIONS; BILLING DISPUTES:
Price Adjustments
Aesthetics HQ may change the price for recurring Subscription Fees from time to time with notice to you. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal. Price changes will take effect at the start of the next Subscription Period following the date of the price change.
Cancellation.
During the Subscription Period and any renewal Subscription Periods, you may choose not to renew your subscription or cancel your subscription early, provided that, we will not provide any refunds. If you cancel in the middle of a Subscription Period, you will no longer be able to continue to access and use the Platform or Services. We do not provide refunds or credits for any cancellations or partial Subscription Period, or if you decide to stop using your subscription during your Subscription Period.
Billing Disputes.
Provider agrees to first contact Aesthetics HQ before seeking a chargeback or disputing any payments made for the Services. If Provider believes that Aesthetics HQ has billed Provider incorrectly, Provider must contact Aesthetics HQ no later than thirty (30) days after receipt of the invoice in which the error or problem appeared. Inquiries should be directed to Aesthetics HQ’s customer support department at support@aestheticshq.com.
PROVIDER RESPONSIBILITIES:
Account Use.
You are responsible and liable for all use of the Services and Platform resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of these Terms of Service. Provider shall exercise such lawful supervision and control over its Authorized End Users. Provider shall be responsible for all acts and omissions of Authorized End Users, and for any Losses, or Third-Party Claims which results directly or indirectly from any act or omission of any Authorized End User or other use which is unlawful or not in compliance with any of the terms and conditions of these Terms of Service, or any third-party terms and conditions. You shall use reasonable efforts to make all Authorized End Users aware of the provisions of these Terms of Service as applicable to such Authorized End User's use of the Services and shall cause Authorized End Users to comply with such provisions.
Passwords and Access Credentials; Security.
You are responsible for keeping your passwords and access credentials associated with the Platform and Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials. You are further responsible for maintaining commercially reasonable administrative, technical, and physical safeguards to protect data, user names and passwords in your possession and control from unauthorized access, accidental loss and unauthorized modification. Aesthetics HQ shall not be liable for any losses or damages that you or others may suffer arising out of or relating to the hacking, tampering or otherwise unauthorized access or use of the Services arising from your account.
Notice of Privacy Practice.
Provider acknowledges that it is solely responsible for providing clients with a notice of privacy practice at the first instance of a Client receiving services from that Provider.
PROVIDER DATA AND MATERIALS (INCLUDING BEFORE AND AFTER PHOTOGRAPHS):
Provider Data and Materials.
All Provider Account Information and all other personally identifiable information, designs, graphics, data, information, content, images, photographs and other materials that you provide to us or upload to your account or dashboard, including but not limited to, biographical information, provider images, before and after photographs and other information that you send to us, post, display or otherwise make available through the Platform or the Services (collectively, “Provider Data and Materials”), is and remains your property. Aesthetics HQ’s practices relating to the use and protection of any personally identifiable information provided to Aesthetics HQ are detailed in Aesthetics HQ’s Privacy Policy. You consent to Aesthetics HQ’s collection, use, storage and transmission of such Provider Data and Materials, including any personally identifiable information, for Aesthetics HQ’s business and commercial purposes and activities.
License to Provider Data and Materials.
You hereby grant to Aesthetics HQ a royalty-free, fully-paid up, non-exclusive right and license to use, reproduce, modify, publish, distribute, perform, display, store, disclose consistent with the terms of the Privacy Policy, and transmit the Provider Data and Materials through the Platform and Services, for any and all commercial and non-commercial purposes, and perform all acts with respect to the Provider Data and Materials as may be necessary for Aesthetics HQ to provide the Services to you. You will ensure that Provider Data and Materials and any use of Provider Data and Materials will not violate any policy or terms referenced in or incorporated into these Terms of Service or any applicable Laws.
Representations and Warranties Related to Provider Data and Materials.
By sending, uploading, posting or otherwise making available any Provider Data and Materials, you represent and warrant you have rights as owner of the Provider Data and Materials to grant the foregoing license. You acknowledge that you are responsible for all Provider Data and Materials that you submit, and you, not Aesthetics HQ, have full responsibility for the Provider Data and Materials, including their legality, reliability, appropriateness, originality, and/or copyright.
Any Provider Data and Materials posted to the Platform will be deemed NOT CONFIDENTIAL. By uploading any Provider Data and Materials, you represent and warrant that: (i) you own or otherwise control all of the rights to Provider Data and Materials including, without limitation, all the rights necessary for you to provide, post, upload, input, share or submit the Provider Data and Materials; (ii) you have the necessary consent and permission from any individuals depicted in any photographs to share and display the Provider Data and Materials; and (iii) you have the rights necessary to grant the license described in these Terms of Service. You acknowledge that Aesthetics HQ is not responsible for the accuracy or privacy of any Provider Data and Materials. All Provider Data and Materials, whether publicly posted or privately transmitted, are the sole responsibility of the persons from whom such Provider Data and Materials originated. This means that you, and not Aesthetics HQ, are entirely responsible for all Provider Data and Materials that you post, upload or otherwise submit to the Platform.
AESTHETICS HQ INTELLECTUAL PROPERTY:
Intellectual Property.
“Intellectual Property” means: (i) all works of authorship, including without limitation, all literary works, pictorial and graphic works, software, videos, and any other work that may be the subject matter of copyright protection and all worldwide registrations thereof (“Copyrights”); (ii) any trademarks, service marks, brand names, trade dress, trade names, designs and any other word, symbol, device, product configuration, slogan or any combination thereof used to distinguish or identify goods or services that may be the subject matter of trademark protection, including all worldwide applications and registrations therefore and associated goodwill (“Trademarks”); (iii) any patents, invention disclosures or inventions, including all methods, business methods, processes, machines, manufactures, systems and compositions of matter, designs and any other inventions that may be the subject matter of patent protection, and all worldwide statutory or other legal protection obtained or obtainable therein (“Patents”); (iv) all domain names, URLs, websites, and all data, content, “look and feel”, operating and underlying code or software of all websites and platform; and (v) all trade secrets, proprietary information, data, and knowledge and experience of a technical, commercial or administrative nature, including all proprietary information, know-how, information processes, operating, maintenance and other manuals, data and databases, computer programs, including all documentation, design specifications, and flowcharts, operational and other plans, schematics and drawings, data and lists, advertising (“Know-how”), marketing and product concepts and campaigns and other valuable or proprietary information or data.
Aesthetics HQ Intellectual Property.
Aesthetics HQ shall own and retain exclusive ownership of all right, title and interest in and to all Aesthetics HQ Intellectual Property. “Aesthetics HQ Intellectual Property” shall mean and include: (i) the Platform, the Aesthetics HQ mobile application and Aesthetics HQ website (including without limit all software, templates, object code, source code, middleware, APIs, interfaces, connectors, software layers, shims, work flows, engines, flow charts, documentation), modifications, updates, and upgrades; and (ii) all related Intellectual Property rights, and derivative works thereof; (iii) any improvements, enhancements, modifications and updates to any of the foregoing; and (vi) any Intellectual Property created by Aesthetics HQ in the provision of Services.
THIRD-PARTY PRODUCTS AND SERVICES:
Third-Party Products and Services.
“Third-Party Product(s)” means a product, software, or service, including but not limited to all materials, data, designs, content, information, graphics, photographs, animations, audio and video contained therein, which is provided by a third-party provider, but which Aesthetics HQ provides access to through the Platform for use by Provider, by direct contract with the third-party or products/services which third parties make available to Provider directly for use through the Platform.
The Platform may also include information about or offers for Third-Party Products, including but not limited to insurance programs. Access to and use of Third-Party Products by Provider may also be subject to third-party terms and conditions (if required by the third-party) in addition to the terms and conditions of these Terms of Service. Provider may be able to view the relevant terms, conditions, licenses and/or notices for such Third-Party Products on their respective websites. As applicable, the terms of Providers use of the Third-Party Products is subject to and governed by the applicable third-party terms and conditions and privacy policies.
No Warranty; Indemnity for Third-Party Products.
Provider acknowledges and agrees that Aesthetics HQ is not responsible for any Third-Party Products, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Aesthetics HQ does not assume and will not have any liability or responsibility to Provider or any other person or entity for any use of or reliance on any Third-Party Products. Third-Party Products and links thereto are provided solely as a convenience to Provider and access and use of them is entirely at Providers own risk. By providing Provider with Third Party Products, Aesthetics HQ makes no representations, warranties, approvals, or endorsements regarding the Third-Party Products provided or the nature, quality, or accuracy of such Third-Party Products. Aesthetics HQ shall have no responsibility or liability to Provider for any actions, omissions, breaches or negligence of Provider as it relates to use of such products and such Third-Party terms and conditions, including without limit, any claims, damages, costs, liabilities, expenses or fees (including attorneys fees), and Provider agrees to indemnify Aesthetics HQ for any Third-Party Claims arising from such Provider actions, omissions, breaches or negligence.
REPRESENTATIONS AND WARRANTIES:
Mutual Representations and Warranties.
Provider and Aesthetics HQ represents and warrants to one another that: (i) it is duly organized, validly existing and in good standing as a legal entity under the laws of the jurisdiction under whose laws it was organized or formed; (ii) it has been duly authorized and has full legal capacity and all power and authority necessary to agree to these Terms of Service and to legally bind that party to all terms and conditions of these Terms of Service; (iii) entering into these Terms of Service does not conflict with or violate any other agreement the party may have with any third-party; and (iv) upon payment of the Subscription Fees, these Terms of Service will become the legally binding and valid obligation of such party, enforceable against such party in accordance with its terms and conditions.
Additional Provider Representations and Warranties.
Provider further represents and warrants to Aesthetics HQ that: (i) Provider will comply at all times with all applicable Laws in connection with the use of and access to the Platform and Third-Party Products provided therein and otherwise in connection with the exercise of its rights and performance of its obligations under these Terms of Service; (ii) Provider will be solely responsible for updating, maintaining and controlling all Provider Data and Materials and ensuring the Provider has all necessary consents and permissions required to upload such information to the Platform and for Aesthetics HQ to share such information; and (iii) for all acts, omissions, negligence and willful acts of Provider and Provider’s Authorized End Users and all use occurring under or through the use of Provider’s account and dashboard.
CONFIDENTIALITY:
Non-Disclosure of Confidential Information.
Provider and Aesthetics HQ acknowledge that each party may be exposed to or acquire communications or data of the other party that is confidential and privileged and not intended to be disclosed to third parties.
Meaning of Confidential Information.
For the purposes of this Agreement, the term “Confidential Information” shall mean: (i) all information and documentation of a party that has been marked “confidential” or with words of similar meaning, at the time of disclosure by such entity; (ii) all information about Authorized End Users that is individually identifiable; and (iii) all source code and object code owned or used by Aesthetics HQ related to the Services or any software, provided as part of or in association with the Services (iv) all information related to clients and potential clients, their personally identifiable information and their appointment requests. The term “Confidential Information” does not include any information or documentation that was: (i) already in the possession of the receiving entity without an obligation of confidentiality; (ii) developed independently by the receiving entity, as demonstrated by the receiving entity, without violating the disclosing entity’s proprietary rights; (iii) obtained from a source other than the disclosing entity without an obligation of confidentiality; or (iv) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving entity).
Obligation of Confidentiality.
The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with the provision of Services hereunder or to use such Confidential Information for any purposes whatsoever other than the performance of this Terms of Service.
Cooperation to Prevent Disclosure of Confidential Information.
Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of these Terms of Services and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
Injunctive Relief Available.
Provider acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for a breach by Provider of Provider’s confidentiality obligations under this Agreement. Accordingly, and in addition to any other legal or equitable remedies that may be available, Aesthetics HQ may seek injunctive relief against a breach or threatened breach of the Provider’s confidentiality obligations under these Terms of Service. The provisions of this section shall survive the termination or cancellation of these Terms of Service.
FEEDBACK:
If you or any of your Authorized End User sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your Authorized End Users to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third-party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
CHATBOTS:
When you use the Platform, you may use or interact with automated features like chatbots, powered by artificial intelligence, or similar technologies (“Chatbots”). Information generated by Chatbots may not be unique. While Chatbots are designed to improve your experience, these technologies are evolving and may have limitations such as generating outputs that are inaccurate or inappropriate to your situation. Conversations with the chatbots may be logged and stored by Aesthetics HQ to assist Aesthetics HQ in providing and enhancing their Services.
SUBSCRIPTION PERIOD AND TERMINATION:
Subscription Period.
Unless terminated earlier and subject to the survival provisions expressly set forth in these Terms of Service, these Terms of Service shall be in effect for an initial term of twelve (12) months from the Effective Date (“Initial Subscription Period”). Unless Provider provides Aesthetics HQ with express written notice of non-renewal not later than ninety (90) calendar days before the end of the Initial Subscription Period, these Terms of Service shall automatically renew for additional twelve (12) month terms (“Renewal Subscription Term(s)”). For purposes of these Terms of Service, “Subscription Period” shall mean the Initial Subscription Period and any Renewal Subscription Period(s).
Termination or Suspension by Aesthetics HQ for Cause.
Aesthetics HQ shall have the right to terminate these Terms of Service, or suspend Provider’s subscription in Aesthetics HQ’s discretion, if: (i) Provider or any Authorized End User breaches any material term or obligations of these Terms of Service, including without limit, the licensed rights, Aesthetics HQ’s Intellectual Property rights, confidentiality restrictions, or any third-parties rights and Provider fails to cure such breach within ten (10) days after written notice thereof; (ii) Provider fails to timely pay any and all Subscription Fees due; (iii) Provider's or any other Authorized End User's use of the Services disrupts or poses a security risk to the Services; (iv) Provider or any other Authorized End User is using the Services for fraudulent or illegal activities; (v) subject to applicable Laws, Provider has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. Aesthetics HQ will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Provider or any other Authorized End User may incur as a result of a service suspension.
Effect of Termination.
Upon any termination Provider shall immediately cease all exercise of the rights under the subscription license and access and use of the Platform and shall cause all of its Authorized End Users to immediately cease all access and use of the Platform. Aesthetics HQ shall have the right to immediately terminate without notice any access or use of the Platform by Provider and its Authorized End Users. All payment obligations which have accrued under these Terms of Service at any time during the Subscription Period shall forever survive any termination or expiration of these Terms of Service. No termination will affect your obligation to pay all Subscription Fees due or that may have accrued through the effective date of termination or entitle you to any refund.
AESTHETICS HQ COMMUNICATIONS:
In order to properly support and serve you, we occasionally need to reach out and contact you, and may do so in a variety of ways such as via text message, email or messaging functionality in the Platform. We want to provide you options for receiving communications from us, and as such you may opt-in or opt-out of receiving certain types of communications from us or sign up to receive certain kinds of messages from us. You will need to notify us of any changes to your contact details to ensure your preferences are updated.
You may provide us with your telephone number as part of your Provider record or registration or via other methods. You understand and agree that Aesthetics HQ may use your telephone number for multi-factor authentication (“MFA”), to confirm your identity and help protect the security of your account. Part of the MFA identity verification process may involve Aesthetics HQ sending text messages containing security codes to your telephone number. You agree to receive these texts from Aesthetics HQ containing security codes as part of the MFA process. In addition, you agree that Aesthetics HQ may send automated text messages and pre-recorded voice messages to the telephone number you provide for other limited purposes, including: providing you with important critical notices regarding your use of the Services, or fulfilling a request made by you through the Services.
LIMITED WARRANTY AND WARRANTY DISCLAIMER:
Aesthetics HQ warrants that it provides the Services and Platform using a commercially reasonable level of care and skill.
THE FOREGOING WARRANTY DOES NOT APPLY, AND AESTHETICS HQ STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE THE SERVICES ARE PROVIDED "AS IS" AND AESTHETICS HQ SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AESTHETICS HQ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AESTHETICS HQ MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD-PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. AESTHETICS HQ DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT ANY DATA WILL REMAIN PRIVATE OR SECURE. AESTHETICS HQ MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, MATERIALS, DATA OR SERVICES.
INDEMNIFICATION:
Aesthetics HQ Indemnification.
Aesthetics HQ shall indemnify, defend, and hold harmless Provider from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Provider resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with these Terms of Service, infringes or misappropriates such third-party's U.S. Intellectual Property rights provided that Provider promptly notifies Aesthetics HQ in writing of the Third-Party Claim, cooperates with Aesthetics HQ, and allows Aesthetics HQ sole authority to control the defense and settlement of such Third-Party Claim.
If such a Third-Party Claim is made or either party reasonably anticipates such a Third-Party Claim will be made, Provider agrees to permit Aesthetics HQ, at Aesthetics HQ's sole discretion to: (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Provider to continue use. If Aesthetics HQ determines that neither alternative is reasonably available, Aesthetics HQ may terminate these Terms of Service, in its entirety or with respect to the affected component or part, effective immediately on written notice to Provider. This Section sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Services infringe, misappropriate, or otherwise violate any Intellectual Property rights of any third-party. This Section will not apply to the extent that any such Third-Party Claim arises from Provider Data and Materials or Third-Party Products.
Provider Indemnification.
Provider shall indemnify, hold harmless, and, at Aesthetics HQ's option, defend Aesthetics HQ and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim: (i) that the Provider Data and Materials, or any use of the Provider Data and Materials in accordance with these Terms of Service, infringes or misappropriates such third-party's Intellectual Property rights; (ii) that the Provider Data and Materials, including but not limited to any before and after photographs uploaded by Provider violating an individual’s right to privacy or confidentiality; or (iii) based on Provider's or any Authorized End User's negligence or willful misconduct or use of the Services in a manner not authorized by these Terms of Service. Provider may not settle any Third-Party Claim against Aesthetics HQ unless Aesthetics HQ consents to such settlement, and provided that Aesthetics HQ will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
LIMITATION OF LIABILITY:
IN NO EVENT WILL AESTHETICS HQ BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT SERVICES, IN EACH CASE REGARDLESS OF WHETHER AESTHETICS HQ WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL AESTHETICS HQ'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY PROVIDER TO AESTHETICS HQ UNDER THESE TERMS OF SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
DISPUTE RESOLUTION:
Notwithstanding any other provisions of these Terms of Service, any controversy or claim arising out of or relating to these Terms of Service, or the breach thereof, shall initially be submitted to authorized representatives of each party who agree to meet in good faith in an attempt to resolve any such dispute. If the parties cannot resolve a dispute through such a meeting then the dispute shall be submitted to binding arbitration in front of a single arbitrator, administered by the American Arbitration Association, under its Commercial Arbitration Rules, and judgment on the award rendered by the single arbitrator may be entered in any court having jurisdiction thereof. Venue for any such arbitration proceeding shall be in St. Johns County, Florida.
UPDATES TO THE TERMS OF SERVICE:
We may modify the provisions of these Terms of Service at any time. We may notify you of such modifications by posting through the Platform or on our website or by other means. It is important that you review these Terms of Service whenever we modify it because your continued use of the Platform indicates your agreement to the modifications. In some cases, you may need to accept changes to these Terms of Service to continue using the Platform. If you do not agree to the changes, you may stop using the Platform or terminate your account.
GENERAL TERMS AND CONDITIONS:
Entire Agreement and Modification.
The express written terms and conditions of these Terms of Service (including Aesthetics HQ’s Privacy Policy and Terms of Use, as such may be updated from time-to-time by Aesthetics HQ), each of which is hereby incorporated into these Terms of Service by reference, and the applicable subscription terms agreed to by Provider during sign-up, constitute the sole, exclusive, complete and final agreement and understanding of the Parties with respect to the subject matter of these Terms of Service and may not be waived, modified or rescinded, in whole or in part, except pursuant to a writing signed by duly authorized representatives of both parties. Any other prior and/or contemporaneous conversations, negotiations, understandings, agreements, expectations, promises, representations, covenants and warranties concerning the subject matter hereof are cancelled and superseded by these Terms of Service.
Compliance with Laws.
In exercising its rights under these Terms of Service, and carrying out its duties under these Terms of Service, each party shall comply with all applicable federal, state and local laws, regulations, rules, licensing requirements, privacy requirements, healthcare requirements, ordinances and other decrees of any governmental authority (collectively “Laws”). In the event either party at any time becomes aware of any facts or circumstances which involve, or appear reasonably likely to involve, any criminal conduct or imminent threat of criminal conduct by any party, each party shall have the right to notify law enforcement authorities and to cooperate fully with, but shall have no obligation to do so, unless and except to the extent as may otherwise be required by law or any bylaws, membership agreements, or other governing documents or policies of such party.
Governing Law, Venue, and Jurisdiction.
These Terms of Service will be governed and interpreted in accordance with the laws of the State of Delaware, United States of America, notwithstanding any principles of conflicts of law. If any party institutes a lawsuit or other action or proceeding pertaining to these Terms of Service, any right or obligation of any party hereunder, or any breach of these Terms of Service, then the sole and exclusive venue and jurisdiction for filing and maintaining any such lawsuit or other action or proceeding shall be in the Courts sitting in St. Johns County, Florida or the U.S. Northern District of Florida and each party waives the right to institute or maintain any such suit, action or proceeding in any other courts or forums whatsoever.
Export Regulation.
The Services may contain software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any law or regulation, including the U.S. Export Administration Act and its associated regulations (“Controlled Technology"). Provider shall not, and shall not knowingly cause, induce or permit, anyone to, export, re-export or release, directly or indirectly, any such Controlled Technology to any country, jurisdiction, person or entity to which the export, re-export or release of Controlled Technology: (i) is prohibited by applicable Laws or regulation; or (ii) without first obtaining the advance express written consent of Aesthetics HQ and completion all other legally required undertakings including obtaining all necessary export licenses and other governmental approvals. Aesthetics HQ shall have the right to deny or withhold its consent under this subsection in Aesthetics HQ’s sole discretion and for any reason or no reason.
Independent Contractors.
The relationship of Provider and Aesthetics HQ to one another is, and shall at all times remain, solely that of independent contractors. Nothing in these Terms of Service, or any course of performance hereunder, shall create any joint venture, partnership, or franchise or to constitute a party as principal, agent, master, servant, employer, employee, or fiduciary of the other party. No party nor any of its agents, shall have any express or implied power or authority of any kind to act on behalf of the other party, or to bind the other party or to incur any form liability or obligation on behalf of the other party.
Survival.
The confidentiality, indemnity, limitation of liability and each other provision of these Terms of Service that by its nature extends beyond the expiration or earlier termination of these Terms of Services will survive and continue in full force and effect after these Terms of Service expires or is earlier terminated.
Non-Waiver.
Notwithstanding the foregoing or any other provision of these Terms of Service, the waiver by either party of any default or breach of these Terms of Service shall not constitute a waiver of any subsequent default or breach, irrespective of its nature.
Severability.
If any provision of these Terms of Service, or any portion thereof, is held to be invalid, unlawful or unenforceable, such provision shall be severable from the remainder of these Terms of Service and shall be deemed stricken retroactively as of the Effective Date. The parties, or any tribunal of competent jurisdiction, shall substitute for the stricken provision a valid and enforceable provision that preserves the original intent and economic positions of the parties and the remaining provisions of these Terms of Service will remain in full force and effect. If any provision of these Terms of Service is invalid, illegal or unenforceable in a given jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction.
Assignment and Delegation.
Provider may not assign its rights or obligations under these Terms of Service to any third-party without first obtaining the express written consent of Aesthetics HQ. Aesthetics HQ may assign this these Terms of Service, and all of Aesthetics HQ’s rights and obligations hereunder to any of Aesthetics HQ’s subsidiaries or affiliates, to a parent entity, to a successor legal entity (by merger or otherwise), to any entity acquiring all or substantially all of the assets of Aesthetics HQ or to a purchaser of all or substantially all of the equity ownership interests of Aesthetics HQ.
LAST UPDATED: FEBRUARY 13, 2024
HIPAA Business Associate Agreement
February 2024
This HIPAA Business Associate Agreement (“BAA”) is part of our Provider Terms of Service and applies only to the extent that you, acting as a Covered Entity under HIPAA, share Protected Health Information about your consumers with us and to the extent we, as a result, are deemed under HIPAA to be acting as your Business Associate.
1. Definitions.
Words or expressions defined in “quotation marks” have the same meanings each time they are used in this BAA. Unless we say otherwise below, any words or expressions that are defined in the Provider Terms of Service have the same meanings when used in this BAA.
“Business Associate”, “Breach”, “Covered Entity”, “Required by Law”, “Security Incident” and “Subcontractor” have the definitions given under HIPAA.
“Services” means one or more of our services, as defined in the Terms of Service
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the rules and the regulations made under it, as amended.
“Protected Health Information” or “PHI” has the definition given to it under HIPAA and for purposes of this BAA is limited to PHI which is part of data to which we have access through the Services.
2. Permitted use and disclosure of PHI. Except as otherwise stated in this BAA, we will only use or disclose Services, or as Required by Law.
3. Security practices. We will use appropriate safeguards designed to prevent unauthorized use or disclosure of PHI, and as otherwise required under HIPAA, with respect to the Services.
On your request, we will provide you with sufficient information to enable you to check that we are complying with these security practices.
4. Notice of Privacy Practices. Covered Entity shall provide its Notice of Privacy Practices to all clients it serves during the clients first visit with Covered Entity.
5. Reporting. We will without undue delay after becoming aware of the facts, inform you in writing about any finding of a Security Incident (excluding any unsuccessful attempt) regarding PHI, including a Breach of unsecured PHI.
6. Subcontractors. We will take appropriate measures to ensure that any Subcontractors used to perform our obligations under the Terms of Service that require access to PHI are bound by written obligations that provide at least the same material level of protection for PHI as this BAA.
7. Access and amendment. We will provide you with access to PHI via the Services so that you may fulfill your obligations under HIPAA with respect to individuals’ rights of access and amendment, but will have no other obligations to you or any individual with respect to the rights afforded to individuals by HIPAA, including rights of access or amendment of PHI.
8. Accounting of disclosures. We will document our disclosures of PHI and make available the information required to provide an accounting of disclosures, as necessary to satisfy your obligations under HIPAA.
9. Access to records. Unless we are prohibited under applicable laws or regulations, we will make our internal practices, books, and records concerning the use and disclosure of PHI received from you, available to the Secretary of the U.S. Department of Health and Human Services (the “Secretary”) for the purpose of the Secretary determining your compliance with HIPAA.
10. Term and termination. If we materially breach this BAA, you may exercise your termination rights in accordance with the Terms of Service.
Thank you for choosing Aesthetics HQ LLC. Aesthetics HQ provides a software system through a software as a service model, referred to as the Aesthetics HQ platform (the “Platform”) for use by healthcare specialists, professionals, providers, organizations, and agents thereof (each a “Provider”) in order to connect with potential new clients. Aesthetics HQ LLC is referred to in these Terms of Service as “Aesthetics HQ” or simply “we” or “us.”
By clicking “I agree” and purchasing a subscription to use the Platform, you are entering into a binding agreement with us. If you are an individual acting on behalf of an individual provider or entity, you accept the following terms and conditions (“Terms of Service”) on the provider or entity’s behalf and the term “you” will refer to you and the provider or entity.
THESE TERMS OF SERVICE TAKE EFFECT WHEN YOU CLICK THE "I AGREE” BUTTON WHEN COMPLETING YOUR ONLINE SUBSCRIPTION PURCHASE (THE "EFFECTIVE DATE"). BY CLICKING ON THE "I AGREE” BUTTON AND ACCESSING OR USING THE PLATFORM YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE AND, IF ENTERING INTO THESE TERMS OF SERVICE FOR A PROVIDER OR ENTITY, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT PROVIDER OR ENTITY; AND (C) ACCEPT THESE TERMS OF SERVICE AND AGREE THAT YOU ARE LEGALLY BOUND BY SUCH TERMS.
AGREEMENT TO THESE TERMS:
By using the Platform, you are instructing us to share your data across our Platform for marketing and sharing your service offerings with potential new clients, connecting you with potential new clients, providing client a means to request appointments with you and other purposes described in our Privacy Policy and on our website.
To access and/or use the Platform and all software, features and functionality provided therein, the mobile application to the extent made available, and the website (collectively, the “Services”), you acknowledge and accept the terms and conditions of these Terms of Service which include:
Aesthetics HQ’s Privacy Policy;
Aesthetics HQ’s Website Terms of Use;
Aesthetics HQ’s Medical Disclaimer;
Aesthetics HQ’s HIPAA Business Associate Agreement;
The current version of the terms set forth herein;
You are at least 18 years of age; and
You are capable of forming a binding contract with Aesthetics HQ.
YOUR PERSONAL INFORMATION:
You agree that Aesthetics HQ may use and maintain your personal information according to our Privacy Policy and any changes made to the Privacy Policy as published by Aesthetics HQ. To the extent that you input personal information (as the term is defined under applicable Laws) about individuals other than yourself, you represent and warrant that you have complied with all applicable Laws and received the proper authority or consent to allow us to collect, process and use such information to operate our business.
CREATION OF PROVIDER ACCOUNT AND DASHBOARD:
You will need to create a Provider account and dashboard in order to use the Platform. We will need to verify your identity and credentialing and you authorize us to collect information (e.g., state of licensure, NPI number, address, provider information, etc.) from you to do so (collectively, with all information requested to enable your account, “Provider Account Information”). You will provide accurate, up-to-date Provider Account Information, and we disclaim any liability arising from your failure to do so. Failure to provide accurate and up-to-date Provider Account Information may limit your ability to use the Platform and affect the Platform's accuracy and effectiveness.
To ensure compliance with applicable federal and state laws, because Aesthetics HQ may have access to certain client health information, Provider is required to agree to Aesthetics HQ’s business associate agreement governing the safety and security of such information. The terms of our business associate agreement are displayed at the bottom of these Terms of Service, and are hereby incorporated by reference.
ACCESS AND USE:
Provision of Access.
Subject to and conditioned on your payment of the Subscription Fees (defined in Section 4) and compliance with all terms and conditions of these Terms of Service, Aesthetics HQ hereby grants Provider a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Platform and Services during the Subscription Period solely for your business operations by Authorized End Users in accordance with the terms and conditions herein. "Authorized End Users" means and refers to Provider and Provider's employees, contractors, and agents: (i) who are authorized by Provider to access and use the Platform and Services under the rights granted to Provider pursuant to these Terms of Service; and (ii) for whom access to the Platform and Services has been purchased hereunder.
Use Restrictions.
You shall not, and shall not permit any Authorized End Users to, use the Services or Platform for any purposes beyond the scope of the access granted in these Terms of Service. You shall not at any time, directly or indirectly, and shall not permit any Authorized End Users to: (i) copy, modify, or create derivative works of the Services or Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Platform except as expressly permitted under these Terms of Service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or Platform, in whole or in part; or (iv) use the Services or Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right or other right of any person, or that violates any applicable Laws.
We take privacy and copyright rights seriously at Aesthetics HQ. We respect the privacy and copyrights of others and expect you to do the same. If you repeatedly violate the privacy rights of individuals or infringe the copyrights of others, we may terminate your account. Aesthetics HQ may terminate your use of the Platform based on our reasonable suspicion that your activities, business or products are objectionable or promote, support or engage in any of the prohibited uses described above.
Aggregated Data and Statistics.
Notwithstanding anything to the contrary in these Terms of Service, Aesthetics HQ may monitor Provider's use of the Services and collect and compile data and information related to Provider's use of the Services to be used by Aesthetics HQ in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Aesthetics HQ and Provider, all right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by Aesthetics HQ. You acknowledge that Aesthetics HQ may compile Aggregated Statistics based on Provider Data and Materials (defined in Section 7) input into the Services. You agree that Aesthetics HQ may: (i) make Aggregated Statistics publicly available in compliance with applicable Laws; and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Laws.
Reservation of Rights.
Aesthetics HQ reserves all rights not expressly granted to Provider in these Terms of Service. Except for the limited rights and licenses expressly granted under these Terms of Service, nothing in these Terms of Service grants, by implication, waiver, estoppel, or otherwise, to Provider or any third-party any Intellectual Property rights or other right, title, or interest in or to the Aesthetics HQ Intellectual Property or Services.
SUBSCRIPTION FEES; AUTOMATIC RENEWAL; PAYMENT:
Subscription Fees.
Provider shall pay Aesthetics HQ the onboarding fee and license fee as described on the Aesthetics HQ website associated with the applicable subscription being purchased (collectively the "Subscription Fee") before Provider will be provided with access to the Platform. Provider is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Provider hereunder, other than any taxes imposed on Aesthetics HQ's income.
Automatic Renewal.
You will be charged the Subscription Fee in advance on a recurring annual basis. Your subscription to Aesthetics HQ will automatically renew for additional one year periods and you will automatically be charged the applicable Subscription Fees in effect on the date of renewal. Your Subscription Term will automatically renew, unless you tell us that you do not wish to renew by providing at least ninety (90) days advance notice of your intent not to renew.
For annual subscriptions, we will send you a reminder with the then-current Subscription Fee no less than thirty (30) days before your Subscription Period ends, or otherwise as required by applicable Laws.
Payments.
Payments will be billed in U.S. dollars. You will be charged during sign-up, when you provide your payment information to our third-party payment processor, and annually thereafter. If your payment information is not accurate, current, and complete, we may suspend or terminate your account. If you do not notify our third-party payment processor with updates to your payment information, our payment processor may participate in programs supported by your card provider to try to update your payment information, and you authorize us to continue billing your account with the updated information that is obtained.
By clicking "I agree" while signing-up for the Platform, I acknowledge and agree that Aesthetics HQ’s third-party payment processor, currently Stripe, Inc. (“Stripe”) is authorized to charge me for all Subscription Fees due during the Subscription Period and any renewal Subscription Period.
PRICE ADJUSTMENTS; CANCELLATIONS; BILLING DISPUTES:
Price Adjustments
Aesthetics HQ may change the price for recurring Subscription Fees from time to time with notice to you. If this increase applies to you, we will notify you at least thirty (30) days in advance of your renewal. Price changes will take effect at the start of the next Subscription Period following the date of the price change.
Cancellation.
During the Subscription Period and any renewal Subscription Periods, you may choose not to renew your subscription or cancel your subscription early, provided that, we will not provide any refunds. If you cancel in the middle of a Subscription Period, you will no longer be able to continue to access and use the Platform or Services. We do not provide refunds or credits for any cancellations or partial Subscription Period, or if you decide to stop using your subscription during your Subscription Period.
Billing Disputes.
Provider agrees to first contact Aesthetics HQ before seeking a chargeback or disputing any payments made for the Services. If Provider believes that Aesthetics HQ has billed Provider incorrectly, Provider must contact Aesthetics HQ no later than thirty (30) days after receipt of the invoice in which the error or problem appeared. Inquiries should be directed to Aesthetics HQ’s customer support department at support@aestheticshq.com.
PROVIDER RESPONSIBILITIES:
Account Use.
You are responsible and liable for all use of the Services and Platform resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of these Terms of Service. Provider shall exercise such lawful supervision and control over its Authorized End Users. Provider shall be responsible for all acts and omissions of Authorized End Users, and for any Losses, or Third-Party Claims which results directly or indirectly from any act or omission of any Authorized End User or other use which is unlawful or not in compliance with any of the terms and conditions of these Terms of Service, or any third-party terms and conditions. You shall use reasonable efforts to make all Authorized End Users aware of the provisions of these Terms of Service as applicable to such Authorized End User's use of the Services and shall cause Authorized End Users to comply with such provisions.
Passwords and Access Credentials; Security.
You are responsible for keeping your passwords and access credentials associated with the Platform and Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us about any unauthorized access to your passwords or access credentials. You are further responsible for maintaining commercially reasonable administrative, technical, and physical safeguards to protect data, user names and passwords in your possession and control from unauthorized access, accidental loss and unauthorized modification. Aesthetics HQ shall not be liable for any losses or damages that you or others may suffer arising out of or relating to the hacking, tampering or otherwise unauthorized access or use of the Services arising from your account.
Notice of Privacy Practice.
Provider acknowledges that it is solely responsible for providing clients with a notice of privacy practice at the first instance of a Client receiving services from that Provider.
PROVIDER DATA AND MATERIALS (INCLUDING BEFORE AND AFTER PHOTOGRAPHS):
Provider Data and Materials.
All Provider Account Information and all other personally identifiable information, designs, graphics, data, information, content, images, photographs and other materials that you provide to us or upload to your account or dashboard, including but not limited to, biographical information, provider images, before and after photographs and other information that you send to us, post, display or otherwise make available through the Platform or the Services (collectively, “Provider Data and Materials”), is and remains your property. Aesthetics HQ’s practices relating to the use and protection of any personally identifiable information provided to Aesthetics HQ are detailed in Aesthetics HQ’s Privacy Policy. You consent to Aesthetics HQ’s collection, use, storage and transmission of such Provider Data and Materials, including any personally identifiable information, for Aesthetics HQ’s business and commercial purposes and activities.
License to Provider Data and Materials.
You hereby grant to Aesthetics HQ a royalty-free, fully-paid up, non-exclusive right and license to use, reproduce, modify, publish, distribute, perform, display, store, disclose consistent with the terms of the Privacy Policy, and transmit the Provider Data and Materials through the Platform and Services, for any and all commercial and non-commercial purposes, and perform all acts with respect to the Provider Data and Materials as may be necessary for Aesthetics HQ to provide the Services to you. You will ensure that Provider Data and Materials and any use of Provider Data and Materials will not violate any policy or terms referenced in or incorporated into these Terms of Service or any applicable Laws.
Representations and Warranties Related to Provider Data and Materials.
By sending, uploading, posting or otherwise making available any Provider Data and Materials, you represent and warrant you have rights as owner of the Provider Data and Materials to grant the foregoing license. You acknowledge that you are responsible for all Provider Data and Materials that you submit, and you, not Aesthetics HQ, have full responsibility for the Provider Data and Materials, including their legality, reliability, appropriateness, originality, and/or copyright.
Any Provider Data and Materials posted to the Platform will be deemed NOT CONFIDENTIAL. By uploading any Provider Data and Materials, you represent and warrant that: (i) you own or otherwise control all of the rights to Provider Data and Materials including, without limitation, all the rights necessary for you to provide, post, upload, input, share or submit the Provider Data and Materials; (ii) you have the necessary consent and permission from any individuals depicted in any photographs to share and display the Provider Data and Materials; and (iii) you have the rights necessary to grant the license described in these Terms of Service. You acknowledge that Aesthetics HQ is not responsible for the accuracy or privacy of any Provider Data and Materials. All Provider Data and Materials, whether publicly posted or privately transmitted, are the sole responsibility of the persons from whom such Provider Data and Materials originated. This means that you, and not Aesthetics HQ, are entirely responsible for all Provider Data and Materials that you post, upload or otherwise submit to the Platform.
AESTHETICS HQ INTELLECTUAL PROPERTY:
Intellectual Property.
“Intellectual Property” means: (i) all works of authorship, including without limitation, all literary works, pictorial and graphic works, software, videos, and any other work that may be the subject matter of copyright protection and all worldwide registrations thereof (“Copyrights”); (ii) any trademarks, service marks, brand names, trade dress, trade names, designs and any other word, symbol, device, product configuration, slogan or any combination thereof used to distinguish or identify goods or services that may be the subject matter of trademark protection, including all worldwide applications and registrations therefore and associated goodwill (“Trademarks”); (iii) any patents, invention disclosures or inventions, including all methods, business methods, processes, machines, manufactures, systems and compositions of matter, designs and any other inventions that may be the subject matter of patent protection, and all worldwide statutory or other legal protection obtained or obtainable therein (“Patents”); (iv) all domain names, URLs, websites, and all data, content, “look and feel”, operating and underlying code or software of all websites and platform; and (v) all trade secrets, proprietary information, data, and knowledge and experience of a technical, commercial or administrative nature, including all proprietary information, know-how, information processes, operating, maintenance and other manuals, data and databases, computer programs, including all documentation, design specifications, and flowcharts, operational and other plans, schematics and drawings, data and lists, advertising (“Know-how”), marketing and product concepts and campaigns and other valuable or proprietary information or data.
Aesthetics HQ Intellectual Property.
Aesthetics HQ shall own and retain exclusive ownership of all right, title and interest in and to all Aesthetics HQ Intellectual Property. “Aesthetics HQ Intellectual Property” shall mean and include: (i) the Platform, the Aesthetics HQ mobile application and Aesthetics HQ website (including without limit all software, templates, object code, source code, middleware, APIs, interfaces, connectors, software layers, shims, work flows, engines, flow charts, documentation), modifications, updates, and upgrades; and (ii) all related Intellectual Property rights, and derivative works thereof; (iii) any improvements, enhancements, modifications and updates to any of the foregoing; and (vi) any Intellectual Property created by Aesthetics HQ in the provision of Services.
THIRD-PARTY PRODUCTS AND SERVICES:
Third-Party Products and Services.
“Third-Party Product(s)” means a product, software, or service, including but not limited to all materials, data, designs, content, information, graphics, photographs, animations, audio and video contained therein, which is provided by a third-party provider, but which Aesthetics HQ provides access to through the Platform for use by Provider, by direct contract with the third-party or products/services which third parties make available to Provider directly for use through the Platform.
The Platform may also include information about or offers for Third-Party Products, including but not limited to insurance programs. Access to and use of Third-Party Products by Provider may also be subject to third-party terms and conditions (if required by the third-party) in addition to the terms and conditions of these Terms of Service. Provider may be able to view the relevant terms, conditions, licenses and/or notices for such Third-Party Products on their respective websites. As applicable, the terms of Providers use of the Third-Party Products is subject to and governed by the applicable third-party terms and conditions and privacy policies.
No Warranty; Indemnity for Third-Party Products.
Provider acknowledges and agrees that Aesthetics HQ is not responsible for any Third-Party Products, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Aesthetics HQ does not assume and will not have any liability or responsibility to Provider or any other person or entity for any use of or reliance on any Third-Party Products. Third-Party Products and links thereto are provided solely as a convenience to Provider and access and use of them is entirely at Providers own risk. By providing Provider with Third Party Products, Aesthetics HQ makes no representations, warranties, approvals, or endorsements regarding the Third-Party Products provided or the nature, quality, or accuracy of such Third-Party Products. Aesthetics HQ shall have no responsibility or liability to Provider for any actions, omissions, breaches or negligence of Provider as it relates to use of such products and such Third-Party terms and conditions, including without limit, any claims, damages, costs, liabilities, expenses or fees (including attorneys fees), and Provider agrees to indemnify Aesthetics HQ for any Third-Party Claims arising from such Provider actions, omissions, breaches or negligence.
REPRESENTATIONS AND WARRANTIES:
Mutual Representations and Warranties.
Provider and Aesthetics HQ represents and warrants to one another that: (i) it is duly organized, validly existing and in good standing as a legal entity under the laws of the jurisdiction under whose laws it was organized or formed; (ii) it has been duly authorized and has full legal capacity and all power and authority necessary to agree to these Terms of Service and to legally bind that party to all terms and conditions of these Terms of Service; (iii) entering into these Terms of Service does not conflict with or violate any other agreement the party may have with any third-party; and (iv) upon payment of the Subscription Fees, these Terms of Service will become the legally binding and valid obligation of such party, enforceable against such party in accordance with its terms and conditions.
Additional Provider Representations and Warranties.
Provider further represents and warrants to Aesthetics HQ that: (i) Provider will comply at all times with all applicable Laws in connection with the use of and access to the Platform and Third-Party Products provided therein and otherwise in connection with the exercise of its rights and performance of its obligations under these Terms of Service; (ii) Provider will be solely responsible for updating, maintaining and controlling all Provider Data and Materials and ensuring the Provider has all necessary consents and permissions required to upload such information to the Platform and for Aesthetics HQ to share such information; and (iii) for all acts, omissions, negligence and willful acts of Provider and Provider’s Authorized End Users and all use occurring under or through the use of Provider’s account and dashboard.
CONFIDENTIALITY:
Non-Disclosure of Confidential Information.
Provider and Aesthetics HQ acknowledge that each party may be exposed to or acquire communications or data of the other party that is confidential and privileged and not intended to be disclosed to third parties.
Meaning of Confidential Information.
For the purposes of this Agreement, the term “Confidential Information” shall mean: (i) all information and documentation of a party that has been marked “confidential” or with words of similar meaning, at the time of disclosure by such entity; (ii) all information about Authorized End Users that is individually identifiable; and (iii) all source code and object code owned or used by Aesthetics HQ related to the Services or any software, provided as part of or in association with the Services (iv) all information related to clients and potential clients, their personally identifiable information and their appointment requests. The term “Confidential Information” does not include any information or documentation that was: (i) already in the possession of the receiving entity without an obligation of confidentiality; (ii) developed independently by the receiving entity, as demonstrated by the receiving entity, without violating the disclosing entity’s proprietary rights; (iii) obtained from a source other than the disclosing entity without an obligation of confidentiality; or (iv) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through or on behalf of, the receiving entity).
Obligation of Confidentiality.
The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with the provision of Services hereunder or to use such Confidential Information for any purposes whatsoever other than the performance of this Terms of Service.
Cooperation to Prevent Disclosure of Confidential Information.
Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limitation of the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of these Terms of Services and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.
Injunctive Relief Available.
Provider acknowledges and agrees that due to the unique nature of the Confidential Information there can be no adequate remedy at law for a breach by Provider of Provider’s confidentiality obligations under this Agreement. Accordingly, and in addition to any other legal or equitable remedies that may be available, Aesthetics HQ may seek injunctive relief against a breach or threatened breach of the Provider’s confidentiality obligations under these Terms of Service. The provisions of this section shall survive the termination or cancellation of these Terms of Service.
FEEDBACK:
If you or any of your Authorized End User sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), we are free to use such Feedback irrespective of any other obligation or limitation between you and us governing such Feedback. All Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and shall cause your Authorized End Users to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to you or any third-party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
CHATBOTS:
When you use the Platform, you may use or interact with automated features like chatbots, powered by artificial intelligence, or similar technologies (“Chatbots”). Information generated by Chatbots may not be unique. While Chatbots are designed to improve your experience, these technologies are evolving and may have limitations such as generating outputs that are inaccurate or inappropriate to your situation. Conversations with the chatbots may be logged and stored by Aesthetics HQ to assist Aesthetics HQ in providing and enhancing their Services.
SUBSCRIPTION PERIOD AND TERMINATION:
Subscription Period.
Unless terminated earlier and subject to the survival provisions expressly set forth in these Terms of Service, these Terms of Service shall be in effect for an initial term of twelve (12) months from the Effective Date (“Initial Subscription Period”). Unless Provider provides Aesthetics HQ with express written notice of non-renewal not later than ninety (90) calendar days before the end of the Initial Subscription Period, these Terms of Service shall automatically renew for additional twelve (12) month terms (“Renewal Subscription Term(s)”). For purposes of these Terms of Service, “Subscription Period” shall mean the Initial Subscription Period and any Renewal Subscription Period(s).
Termination or Suspension by Aesthetics HQ for Cause.
Aesthetics HQ shall have the right to terminate these Terms of Service, or suspend Provider’s subscription in Aesthetics HQ’s discretion, if: (i) Provider or any Authorized End User breaches any material term or obligations of these Terms of Service, including without limit, the licensed rights, Aesthetics HQ’s Intellectual Property rights, confidentiality restrictions, or any third-parties rights and Provider fails to cure such breach within ten (10) days after written notice thereof; (ii) Provider fails to timely pay any and all Subscription Fees due; (iii) Provider's or any other Authorized End User's use of the Services disrupts or poses a security risk to the Services; (iv) Provider or any other Authorized End User is using the Services for fraudulent or illegal activities; (v) subject to applicable Laws, Provider has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. Aesthetics HQ will have no liability for any damage, liabilities, losses (including any loss of or profits), or any other consequences that Provider or any other Authorized End User may incur as a result of a service suspension.
Effect of Termination.
Upon any termination Provider shall immediately cease all exercise of the rights under the subscription license and access and use of the Platform and shall cause all of its Authorized End Users to immediately cease all access and use of the Platform. Aesthetics HQ shall have the right to immediately terminate without notice any access or use of the Platform by Provider and its Authorized End Users. All payment obligations which have accrued under these Terms of Service at any time during the Subscription Period shall forever survive any termination or expiration of these Terms of Service. No termination will affect your obligation to pay all Subscription Fees due or that may have accrued through the effective date of termination or entitle you to any refund.
AESTHETICS HQ COMMUNICATIONS:
In order to properly support and serve you, we occasionally need to reach out and contact you, and may do so in a variety of ways such as via text message, email or messaging functionality in the Platform. We want to provide you options for receiving communications from us, and as such you may opt-in or opt-out of receiving certain types of communications from us or sign up to receive certain kinds of messages from us. You will need to notify us of any changes to your contact details to ensure your preferences are updated.
You may provide us with your telephone number as part of your Provider record or registration or via other methods. You understand and agree that Aesthetics HQ may use your telephone number for multi-factor authentication (“MFA”), to confirm your identity and help protect the security of your account. Part of the MFA identity verification process may involve Aesthetics HQ sending text messages containing security codes to your telephone number. You agree to receive these texts from Aesthetics HQ containing security codes as part of the MFA process. In addition, you agree that Aesthetics HQ may send automated text messages and pre-recorded voice messages to the telephone number you provide for other limited purposes, including: providing you with important critical notices regarding your use of the Services, or fulfilling a request made by you through the Services.
LIMITED WARRANTY AND WARRANTY DISCLAIMER:
Aesthetics HQ warrants that it provides the Services and Platform using a commercially reasonable level of care and skill.
THE FOREGOING WARRANTY DOES NOT APPLY, AND AESTHETICS HQ STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE THE SERVICES ARE PROVIDED "AS IS" AND AESTHETICS HQ SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. AESTHETICS HQ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. AESTHETICS HQ MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD-PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. AESTHETICS HQ DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT ANY DATA WILL REMAIN PRIVATE OR SECURE. AESTHETICS HQ MAKES NO WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, MATERIALS, DATA OR SERVICES.
INDEMNIFICATION:
Aesthetics HQ Indemnification.
Aesthetics HQ shall indemnify, defend, and hold harmless Provider from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees ("Losses"), incurred by Provider resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with these Terms of Service, infringes or misappropriates such third-party's U.S. Intellectual Property rights provided that Provider promptly notifies Aesthetics HQ in writing of the Third-Party Claim, cooperates with Aesthetics HQ, and allows Aesthetics HQ sole authority to control the defense and settlement of such Third-Party Claim.
If such a Third-Party Claim is made or either party reasonably anticipates such a Third-Party Claim will be made, Provider agrees to permit Aesthetics HQ, at Aesthetics HQ's sole discretion to: (i) modify or replace the Services, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Provider to continue use. If Aesthetics HQ determines that neither alternative is reasonably available, Aesthetics HQ may terminate these Terms of Service, in its entirety or with respect to the affected component or part, effective immediately on written notice to Provider. This Section sets forth your sole remedies and our sole liability and obligation for any actual, threatened, or alleged Third-Party Claims that the Services infringe, misappropriate, or otherwise violate any Intellectual Property rights of any third-party. This Section will not apply to the extent that any such Third-Party Claim arises from Provider Data and Materials or Third-Party Products.
Provider Indemnification.
Provider shall indemnify, hold harmless, and, at Aesthetics HQ's option, defend Aesthetics HQ and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any Third-Party Claim: (i) that the Provider Data and Materials, or any use of the Provider Data and Materials in accordance with these Terms of Service, infringes or misappropriates such third-party's Intellectual Property rights; (ii) that the Provider Data and Materials, including but not limited to any before and after photographs uploaded by Provider violating an individual’s right to privacy or confidentiality; or (iii) based on Provider's or any Authorized End User's negligence or willful misconduct or use of the Services in a manner not authorized by these Terms of Service. Provider may not settle any Third-Party Claim against Aesthetics HQ unless Aesthetics HQ consents to such settlement, and provided that Aesthetics HQ will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
LIMITATION OF LIABILITY:
IN NO EVENT WILL AESTHETICS HQ BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT SERVICES, IN EACH CASE REGARDLESS OF WHETHER AESTHETICS HQ WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL AESTHETICS HQ'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY PROVIDER TO AESTHETICS HQ UNDER THESE TERMS OF SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
DISPUTE RESOLUTION:
Notwithstanding any other provisions of these Terms of Service, any controversy or claim arising out of or relating to these Terms of Service, or the breach thereof, shall initially be submitted to authorized representatives of each party who agree to meet in good faith in an attempt to resolve any such dispute. If the parties cannot resolve a dispute through such a meeting then the dispute shall be submitted to binding arbitration in front of a single arbitrator, administered by the American Arbitration Association, under its Commercial Arbitration Rules, and judgment on the award rendered by the single arbitrator may be entered in any court having jurisdiction thereof. Venue for any such arbitration proceeding shall be in St. Johns County, Florida.
UPDATES TO THE TERMS OF SERVICE:
We may modify the provisions of these Terms of Service at any time. We may notify you of such modifications by posting through the Platform or on our website or by other means. It is important that you review these Terms of Service whenever we modify it because your continued use of the Platform indicates your agreement to the modifications. In some cases, you may need to accept changes to these Terms of Service to continue using the Platform. If you do not agree to the changes, you may stop using the Platform or terminate your account.
GENERAL TERMS AND CONDITIONS:
Entire Agreement and Modification.
The express written terms and conditions of these Terms of Service (including Aesthetics HQ’s Privacy Policy and Terms of Use, as such may be updated from time-to-time by Aesthetics HQ), each of which is hereby incorporated into these Terms of Service by reference, and the applicable subscription terms agreed to by Provider during sign-up, constitute the sole, exclusive, complete and final agreement and understanding of the Parties with respect to the subject matter of these Terms of Service and may not be waived, modified or rescinded, in whole or in part, except pursuant to a writing signed by duly authorized representatives of both parties. Any other prior and/or contemporaneous conversations, negotiations, understandings, agreements, expectations, promises, representations, covenants and warranties concerning the subject matter hereof are cancelled and superseded by these Terms of Service.
Compliance with Laws.
In exercising its rights under these Terms of Service, and carrying out its duties under these Terms of Service, each party shall comply with all applicable federal, state and local laws, regulations, rules, licensing requirements, privacy requirements, healthcare requirements, ordinances and other decrees of any governmental authority (collectively “Laws”). In the event either party at any time becomes aware of any facts or circumstances which involve, or appear reasonably likely to involve, any criminal conduct or imminent threat of criminal conduct by any party, each party shall have the right to notify law enforcement authorities and to cooperate fully with, but shall have no obligation to do so, unless and except to the extent as may otherwise be required by law or any bylaws, membership agreements, or other governing documents or policies of such party.
Governing Law, Venue, and Jurisdiction.
These Terms of Service will be governed and interpreted in accordance with the laws of the State of Delaware, United States of America, notwithstanding any principles of conflicts of law. If any party institutes a lawsuit or other action or proceeding pertaining to these Terms of Service, any right or obligation of any party hereunder, or any breach of these Terms of Service, then the sole and exclusive venue and jurisdiction for filing and maintaining any such lawsuit or other action or proceeding shall be in the Courts sitting in St. Johns County, Florida or the U.S. Northern District of Florida and each party waives the right to institute or maintain any such suit, action or proceeding in any other courts or forums whatsoever.
Export Regulation.
The Services may contain software, documentation, technology or other technical data, or any products that include or use any of the foregoing, the export, re-export or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any law or regulation, including the U.S. Export Administration Act and its associated regulations (“Controlled Technology"). Provider shall not, and shall not knowingly cause, induce or permit, anyone to, export, re-export or release, directly or indirectly, any such Controlled Technology to any country, jurisdiction, person or entity to which the export, re-export or release of Controlled Technology: (i) is prohibited by applicable Laws or regulation; or (ii) without first obtaining the advance express written consent of Aesthetics HQ and completion all other legally required undertakings including obtaining all necessary export licenses and other governmental approvals. Aesthetics HQ shall have the right to deny or withhold its consent under this subsection in Aesthetics HQ’s sole discretion and for any reason or no reason.
Independent Contractors.
The relationship of Provider and Aesthetics HQ to one another is, and shall at all times remain, solely that of independent contractors. Nothing in these Terms of Service, or any course of performance hereunder, shall create any joint venture, partnership, or franchise or to constitute a party as principal, agent, master, servant, employer, employee, or fiduciary of the other party. No party nor any of its agents, shall have any express or implied power or authority of any kind to act on behalf of the other party, or to bind the other party or to incur any form liability or obligation on behalf of the other party.
Survival.
The confidentiality, indemnity, limitation of liability and each other provision of these Terms of Service that by its nature extends beyond the expiration or earlier termination of these Terms of Services will survive and continue in full force and effect after these Terms of Service expires or is earlier terminated.
Non-Waiver.
Notwithstanding the foregoing or any other provision of these Terms of Service, the waiver by either party of any default or breach of these Terms of Service shall not constitute a waiver of any subsequent default or breach, irrespective of its nature.
Severability.
If any provision of these Terms of Service, or any portion thereof, is held to be invalid, unlawful or unenforceable, such provision shall be severable from the remainder of these Terms of Service and shall be deemed stricken retroactively as of the Effective Date. The parties, or any tribunal of competent jurisdiction, shall substitute for the stricken provision a valid and enforceable provision that preserves the original intent and economic positions of the parties and the remaining provisions of these Terms of Service will remain in full force and effect. If any provision of these Terms of Service is invalid, illegal or unenforceable in a given jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction.
Assignment and Delegation.
Provider may not assign its rights or obligations under these Terms of Service to any third-party without first obtaining the express written consent of Aesthetics HQ. Aesthetics HQ may assign this these Terms of Service, and all of Aesthetics HQ’s rights and obligations hereunder to any of Aesthetics HQ’s subsidiaries or affiliates, to a parent entity, to a successor legal entity (by merger or otherwise), to any entity acquiring all or substantially all of the assets of Aesthetics HQ or to a purchaser of all or substantially all of the equity ownership interests of Aesthetics HQ.
LAST UPDATED: FEBRUARY 13, 2024
HIPAA Business Associate Agreement
February 2024
This HIPAA Business Associate Agreement (“BAA”) is part of our Provider Terms of Service and applies only to the extent that you, acting as a Covered Entity under HIPAA, share Protected Health Information about your consumers with us and to the extent we, as a result, are deemed under HIPAA to be acting as your Business Associate.
1. Definitions.
Words or expressions defined in “quotation marks” have the same meanings each time they are used in this BAA. Unless we say otherwise below, any words or expressions that are defined in the Provider Terms of Service have the same meanings when used in this BAA.
“Business Associate”, “Breach”, “Covered Entity”, “Required by Law”, “Security Incident” and “Subcontractor” have the definitions given under HIPAA.
“Services” means one or more of our services, as defined in the Terms of Service
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996 and the rules and the regulations made under it, as amended.
“Protected Health Information” or “PHI” has the definition given to it under HIPAA and for purposes of this BAA is limited to PHI which is part of data to which we have access through the Services.
2. Permitted use and disclosure of PHI. Except as otherwise stated in this BAA, we will only use or disclose Services, or as Required by Law.
3. Security practices. We will use appropriate safeguards designed to prevent unauthorized use or disclosure of PHI, and as otherwise required under HIPAA, with respect to the Services.
On your request, we will provide you with sufficient information to enable you to check that we are complying with these security practices.
4. Notice of Privacy Practices. Covered Entity shall provide its Notice of Privacy Practices to all clients it serves during the clients first visit with Covered Entity.
5. Reporting. We will without undue delay after becoming aware of the facts, inform you in writing about any finding of a Security Incident (excluding any unsuccessful attempt) regarding PHI, including a Breach of unsecured PHI.
6. Subcontractors. We will take appropriate measures to ensure that any Subcontractors used to perform our obligations under the Terms of Service that require access to PHI are bound by written obligations that provide at least the same material level of protection for PHI as this BAA.
7. Access and amendment. We will provide you with access to PHI via the Services so that you may fulfill your obligations under HIPAA with respect to individuals’ rights of access and amendment, but will have no other obligations to you or any individual with respect to the rights afforded to individuals by HIPAA, including rights of access or amendment of PHI.
8. Accounting of disclosures. We will document our disclosures of PHI and make available the information required to provide an accounting of disclosures, as necessary to satisfy your obligations under HIPAA.
9. Access to records. Unless we are prohibited under applicable laws or regulations, we will make our internal practices, books, and records concerning the use and disclosure of PHI received from you, available to the Secretary of the U.S. Department of Health and Human Services (the “Secretary”) for the purpose of the Secretary determining your compliance with HIPAA.
10. Term and termination. If we materially breach this BAA, you may exercise your termination rights in accordance with the Terms of Service.
Upon termination of the Terms of Service we will return or delete (including anonymize) PHI received from you as part of your use of Services. This won’t apply to the extent that we are required under applicable laws or regulations to retain some or all of the PHI.
