Terms & Conditions

1. Application of Terms and Third Party Beneficiary. These terms and conditions (all together, the “Terms”) are the agreement between physician practice (“Physician Practice”) and Derm Resource Group, LLC (“DRG”) for the use of DermPRO websites provided by DRG to the Physician Practice (all together, the “DermPRO Website”) for the purchase and sale of products and services furnished by third party manufacturers and service providers depicted in the DermPRO Website (all together “Products”) and the Physician Practice Services (as defined below). The Terms will also apply to Physician Practice users (“Users”) and Physician Practice patients (“Patients”) through the Flowdown Terms as described below in the Terms. The Physician Practice, its Users and its Patients may for convenience be referred to together as the “Practice.” Notwithstanding this reference, however, no contract or agreement shall exist directly between DRG and the Physician Practice’s Users and Patients. The Physician Practice, the Users and the Patients will have separate contractual relationships among themselves. DRG shall benefit from and may enforce the Terms through the Flowdown Terms directly against Users and Patients of the Physician Practice as a third party beneficiary. Neither the Users nor the Patients of the Physician Practice may benefit from or enforce the Terms or the Flowdown Terms against DRG. The Physician Practice, and not DRG, will purchase and pay for Products. Products are provided directly to Physician Practice by third party manufacturers and service providers and not by DRG. DRG provides the DermPRO Website to Physician Practice to facilitate the purchase and sale of the Products. The Physician Practice will be contractually bound by, and be deemed to have accepted, the Terms by agreeing to the Terms through use of a DermPRO Website mechanism for click-through acceptance of the Terms, by any use of the DermPRO Website, or by any purchase or sale of Products and/or Physician Practice Services, as defined below (all together, the “Acceptance”).

2. Change in Terms. DRG may change the Terms at any time by posting revised Terms on the DermPRO Website or by giving the Physician Practice electronic or written notice of changed Terms sent in accordance with the Terms. Electronic notice may be by email, by the DermPRO Website, or by other electronic means determined by DRG (all together, “Electronic Notice”). The Physician Practice agrees that the DermPRO Website posting or Electronic Notice or written notice of changed Terms is actual notice of changed Terms and that changed Terms are deemed accepted by the Physician Practice by its use of a DermPRO Website mechanism for click-through acceptance of the changed Terms, by any use of the DermPRO Website by Physician Practice, or by any purchase or sale of Products or Physician Practice Services (as defined below) by Physician Practice after changed Terms are posted on the DermPRO Website or after DRG has given the Physician Practice Electronic Notice or written notice of changed Terms.

3. DRG License and Ownership of DermPRO Website and Content. Provided that the Physician Practice complies fully with the Terms, DRG grants to the Physician Practice, its Users, and its Patients a personal, non-transferable, non-exclusive, revocable, limited license to use the DermPRO Website and content on the DermPRO Website (“Content”) solely for the purchase and sale of the Products and for the purchase, sale, and use the DermPRO Website Physician Practice services (“Physician Practice Services”) elected by Physician Practice and made available by DRG to the Physician Practice (all together, the “Purpose”). Physician Practice accepts the DermPRO Website, Content, and Physician Practice Services upon the earliest to occur of the following: (a) access to or use of the DermPRO Website, Content, or Physician Practice Services, as applicable, by Physician Practice, its Users, or its Patients; or (b) the expiration of ten (10) business days after DRG notifies Physician Practice that the DermPRO Website, Content, or Physician Practice Services, as applicable, are available for use by Physician Practice, its Users, or its Patients. The Practice will not: (a) access, copy, disclose, or use any part or all of the DermPRO Website or the Content, except for the Purpose; (c) reverse engineer, decompile, or otherwise attempt to discover source code for the DermPRO Website or the Content; (d) create derivative works from the DermPRO Website or the Content; or (e) sell, resell, lease, sublease, license, sublicense, or otherwise dispose of or transfer the DermPRO Website, the Content, or the Physician Practice Services, except as otherwise expressly permitted in and by the Terms or the DermPRO Website. This license shall automatically terminate upon the first to occur of the following: (s) termination of the Terms; (t) breach of any of the Terms or Flowdown Terms, including, but not limited to, any License Term or Flowdown License term or any Acceptable Use Term or Flowdown Acceptable Use term, by the Physician Practice, any of its Users, or any of its Patients; (u) failure of the Physician Practice to pay any amount to DRG when due; or (v) termination of use of the DermPRO Website or Content or termination of the purchase and sale of the Products and Physician Practice Services by the Physician Practice and its Users and Patients. Upon termination of the License, the Practice will cease all use of the DermPRO Website and the Content and will permanently destroy all copies of the Content in the possession of the Practice. The Practice acknowledges and agrees: (w) that, excluding Physician Practice, User, and Patient Information (as defined below), DRG and/or its suppliers are, and will remain, the exclusive owners of the DermPRO Website and the Content and derivatives of the DermPRO Website and Content and all intellectual property rights in the DermPRO Website and the Content and derivatives of the DermPRO Website and Content; and (x) DRG is, and will remain, the exclusive owner of all Content.

4. Physician Practice Services. Physician Practice may elect one or more Physician Practice Services described in the DermPRO Website at www.dermpro.com. When DRG agrees to provide the Physician Practice Services elected by Physician Practice to Physician Practice, DRG will provide the Physician Practice Services to Physician Practice substantially as described in the DermPRO Website and under and pursuant to the Terms and Physician Practice will subscribe to and pay DRG for the Physician Practice Services as described in the DermPRO Website and under and pursuant to the Terms. DRG will provide written notice or Electronic Notice to Physician Practice when DRG has agreed to provide Physician Practice Services to Physician Practice.

Physician Practice Services, include, but are not limited to, Commission-Based Services. Commission-Based Services may permit Physician Practice, during the term of the Terms, to earn commissions on sales of Products by Physician Practice using Commission-Based Services to Physician Practice’s Users and/or Patients, based on Net Revenues that result from such sales, as defined below. Delivery of such Products sold by Physician Practice using Physician Practice Services to Physician Practice’s Users and/or Patients shall be by DRG or by third party service providers, each as determined by DRG in DRG’s sole discretion. Net Revenues for such sales of such Products means the gross revenues actually collected by DRG during each month of the term for the Terms for sales of such Products made by Physician Practice to its Users and/or Patients using Commission-Based Services less the cost of such Products sold, shipping costs, returns, refunds, credits, uncollectibles, and taxes. DRG shall cause payment to Physician Practice of applicable commissions for Commission-Based Services, if any, within sixty (60) days of the conclusion of the month such Net Revenues were actually collected by DRG.

5. Payment. Payment obligations of Physician Practice, for the license to use the DermPRO Website and for Physician Practice Services, if any, commence, unless otherwise determined by DRG, thirty (30) days after Physician Practice orders such license and/or such services (“Payment Obligation Start Date”) and shall continue for an initial period of twelve consecutive (12) months. Such payment obligations shall continue for such license and services each month thereafter until these Terms terminate in accordance with the Terms. Payment obligations incurred during the term of these Terms shall survive termination of these Terms. DRG shall have the right, but not the obligation, to defer the Payment Obligation Start Date to a date determined by DRG (“Payment Obligation Deferred Start Date”) and/or to credit payment obligations of Physician Practice, in whole or in part. If DRG defers the Payment Obligation Start Date in the initial term, Physician Practice will remain obligated for payments for such license and services for twelve (12) consecutive months commencing on the Payment Obligation Deferred Start Date and these Terms will continue to apply during such period, unless they are terminated earlier in accordance with the Terms. Physician Practice will pay DRG upon demand for the license to use the DermPRO Website and for Physician Practice Services by a valid credit card accepted by DRG, or at DRG’s option, by other payment mechanism specified by DRG, at the rates specified by DRG on the DermPRO Website. The rates are set forth at customer.dermpro.com. DRG accepts the following credit cards: MasterCard, VISA, American Express, and Discover. Physician, and not DRG, will order from and pay third party suppliers for the Products pursuant to applicable supplier terms and conditions. DRG shall have no liability to such suppliers, including, without restriction, Product payment liability. Physician Practice hereby agrees to provide DRG and such suppliers all information and writings requested by DRG and such suppliers in connection with Physician Practice credit card or other payments and hereby authorizes DRG and such suppliers (a) to retain, archive, and use Physician Practice credit card or other payment information and writings in connection with Physician Practice credit card or other payments and (b) to charge Physician Practice credit cards for payments for Products and Physician Practice Services selected by Physician Practice. DRG may charge Physician Practice a late payment charge at the lower of one-half of one percent (1/2 %) per month or the legal rate in the State of Texas applied to all outstanding overdue payments (“Late Payment Charge”). Physician Practice agrees to pay Late Payment Charges charged by DRG to Physician Practice. In addition to all other rights and remedies in the Terms or available at law or in equity, DRG may refuse to provide Physician Practice Services, suspend performance by DRG, in whole or in part, and/or terminate the Terms, including, but not limited to, the License Terms, in whole or in part, for any delay or failure in payment by Physician Practice. If DRG brings a claim, action, or proceeding, including, without restriction, an arbitration proceeding, to recover amounts due from Physician Practice under the Terms, Physician Practice will pay all costs and expenses, including, without restriction, litigation costs and attorneys’ fees, incurred by DRG in connection with such claim, action, or proceeding. DRG, at its sole discretion, may use one or more payment gateway providers in connection with processing payments to Physician Practice through the DermPRO Website for Products purchased by Users and Patients of Physician Practice. If the payment gateway provider used by DRG declines payment processing for Physician Practice, then, in addition to all other rights and remedies in the Terms or available at law or in equity, DRG may refuse to provide to Physician Practice DermPro Website services and/or Physician Practice Services, suspend performance by DRG, in whole or in part, and/or terminate the Terms, including, but not limited to, the License Terms, in whole or in part.

6. Term, Termination, Suspension of Performance, and Notice. The Terms, as changed by DRG from time-to-time in accordance with the Terms, are effective at the Acceptance and shall continue for an initial term of twelve (12) consecutive months, unless the Terms are terminated earlier in accordance with the Terms. After the initial term ends, the Terms shall continue in effect until they are terminated in accordance with the Terms. By written notice or Electronic Notice, DRG may terminate the Terms or suspend or terminate its performance under and pursuant to the Terms, in whole or in part, for any one or more of the following causes: (a) breach of any of the Terms or the Flowdown Terms by Physician Practice, any of its Users, or any of its Patients; (b) failure by Physician Practice to pay any amount to DRG when due; (c) breach of any License Term or Flowdown License term by Physician Practice, any of its Users, or any of its Patients; (d) breach of any Acceptable Use Term or Flowdown Acceptable Use term by Physician Practice, any of its Users, or any of its Patients; (e) any denial of payment processing by a payment gateway provider used by DRG to process payments to Physician Practice by Users or Patients of Physician Practice; or (f) violation of any law, rule, regulation, or order of a court or other governmental authority by Physician Practice, any of its Users, or any of its Patients. In addition, DRG may terminate the Terms and its performance as a whole for convenience by giving Physician Practice ninety (90) or more days advance written notice or Electronic Notice, and, after the initial terms set forth above, Physician Practice may terminate the Terms and its performance as a whole for convenience by giving DRG one hundred eighty (180) or more days advance written notice or Electronic Notice. Notice shall be sent to addresses set forth in the Terms. DRG’s address for written notice is: 6350 LBJ Freeway, Suite 256, Dallas, Texas, 75240, attention: Managing Member. Its electronic address is set forth in the DermPRO Website. Physician Practice’s mail or electronic addresses are the addresses provided by Physician Practice to DRG when Physician Practice opened its account with DRG. Either party may change its notice address by notice sent in accordance with this section of the Terms. Termination for any or no reason will not relieve Physician Practice of its payment, confidential information, license, or indemnity obligations to DRG, which will survive termination of the Terms. In the event of termination of the Terms for cause by DRG, termination of the Terms by DRG for any denial of payment processing by a payment gateway provider used by DRG to process payments to Physician Practice by Users or Patients of Physician Practice, or failure by Physician Practice to pay amounts due to DRG for any reason, including, without limitation, denial of payment processing by a payment gateway provider used by DRG to process payments to Physician Practice by Users or Patients of Physician Practice, before the end of the initial term or any renewal term, Physician Practice will pay DRG upon demand all one-time charges for service establishment and all monthly charges for service for the initial term or the renewal term less amounts paid by Physician Practice before termination. In the event of termination of the Terms for cause by DRG, suspension of performance for cause by DRG, failure of Physician Practice to pay amounts due to DRG, for any reason, including, without limitation, denial of payment processing by a payment gateway provider used by DRG to process payments to Physician Practice by Users or Patients of Physician Practice or de-commissioning or any other disablement by DRG of the DermPRO Website developed by DRG for use by Physician Practice, its Users, or its Patients, for any reason, DRG may also charge Physician Practice, and Physician Practice will pay DRG if charged, a restoration of service fee in connection with restoration of services to Physician Practice after resolution of the termination, suspension, or failure to pay.

7. LIMITATION OF LIABILTY AND EXCLUSION OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABIILTY OF DRG AND ITS SUPPLIERS TO THE PHYSICIAN PRACTICE, ITS USERS, AND/OR ITS PATIENTS IN CONNECTION WITH THE TERMS, THIS WEBSITE, THE CONTENT, THE PRODUCTS, AND/OR THE PHYSICIAN PRACTICE SERVICES, WHETER IN TORT, INCLUDING, BUT NOT LIMITED TO, DRG’S OR ITS SUPPLIERS’ NEGILGENCE, CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE LOWER OF THREE (3) MONTHS OF PRICES PAID BY THE PHYSICIAN PRACTICE TO DRG UNDER THE TERMS OR THE PRICE FOR THE PHYSICIAN PRACTICE SERVICE GIVING RISE TO THE LIABILITY CLAIM. IN NO EVENT SHALL DRG OR ITS SUPPLIERS BE LIABLE TO THE PHYSICIAN PRACTICE, ITS USERS, OR IT PATIENTS FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT SUCH DAMAGES WERE FORSEEABLE. IN NO EVENT SHALL DRG AND ITS SUPPLIERS BE LIABLE IN DAMAGES TO THE PHYSICIAN PRACTICE, ITS USERS, ITS PATIENTS, AND/OR THIRD PARTIES FOR CLAIMS OF INFRINGEMENT OF ANY KIND, AND THE ENTIRE LIABILITY OF DRG AND ITS SUPPLIERS TO PHYSICIAN PRACTICE, ITS USERS, ITS PATIENTS, AND/OR THIRD PARTIES FOR CLAIMS OF INFRINGEMENT SHALL BE LIMITED TO REMOVAL OF THE INFRINGING ITEM TO THE EXTENT REASONABLY POSSIBLE FROM THE DERMPRO WEBSITE AND/OR OTHER PUBLICATIONS OF DRG. WITH RESPECT TO CLAIMS OF INFRINGEMENT, AT DRG’S EXCLUSIVE OPTION, DRG MAY, BUT IS NOT OBLIGATED TO, MODIFY THE DERMPRO WEBSITE, THE CONTENT, THE PHYSICIAN PRACTICE SERVICES, THE PHYSICIAN PRACTICE, USER, AND PATIENT INFORMATION (AS DEFINED BELOW), AND/OR THE PHYSICIAN PRACTICE WEBSITE CONTENT (AS DEFINED BELOW) IN ORDER TO REMOVE, AVOID, OR REMEDY CLAIMS OF INFRINGEMENT. ANY SUCH ACTION BY DRG SHALL NOT BE DEEMED A BREACH OF THESE TERMS AND SHALL BE WITHOUT LIABILITY TO PHYSICIAN PRACTICE, ITS USERS, ITS PATIENTS, OR ANY THIRD PARTY, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION.

8. DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRG AND ITS SUPPLIERS MAKE NO WARRANTIES TO THE PHYSICIAN PRACTICE, ITS USERS, OR ITS PATIENTS IN CONNECTION WITH THE WEBSITE, THE CONTENT, THE PRODUCTS, AND/OR THE PHYSICIAN PRACTICE SERVICES AND DISCLAIM ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, OR OTHERWISE. THE WEBSITE, THE CONTENT, THE PRODUCTS, AND THE PHYSICIAN PRACTICE SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS. SOME STATE LAWS MAY NOT PERMIT THE FOREGOING LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTY. PHYSICIAN PRACTICE SHOULD REVIEW THE LAWS OF ITS STATES TO DETERMINE THE APPLICATION OF THE LIMITATIONS.

9. Disclaimer of Medical Practice and Physician Practice and Patient Covenants. Physician Practice and its Users and Patients agree that DRG, its suppliers, the DermPRO Website, the Content, the Products, and/or the Physician Practice Services do not provide and are not engaged in the provision of professional medical services and the DermPRO Website, the Content, the Products, and/or the Physician Practice Services do not comprise professional medical services. The Physician Practice and its Users and Patients covenant and agree: (a) that Physician Practice alone (and not DRG or its suppliers) provides, is responsible for providing and will provide professional medical services to its Users and Patients who use or purchase the DermPRO Website, the Content, the Products, and/or the Physician Practice Services; (b) that any Products or Physician Practice Services purchased by the Physician Practice and/or its Users and Patients that are restricted under applicable law have been duly and lawfully prescribed by the Physician Practice in connection with professional medical services provided by the Physician Practice to its Users and Patients; (c) that Patients and Users of the Physician Practice seek and will seek from Physician Practice (and not from DRG or its suppliers), and Physician Practice (and not DRG or its suppliers) provide and will provide to its Users and Patients, professional medical services in connection with the DermPRO Website, the Content, the Products, and the Physician Practice Services, and will not use DRG, its suppliers, the DermPRO Website, the Content, the Products, and/or the Physician Practice Services as a substitute for professional medical services; and (d) that the Users and Patients of Physician Practice are at least eighteen (18) years of age and are fully competent to enter into contractual relationships.

10. Indemnity. Physician Practice, each of its Users, and each of its Patients, jointly and severally, will, at their sole cost and expense, indemnify, hold harmless, and defend DRG, its members, officers, employees, agents, and suppliers (all together, the “DRG Indemnitees”) from and against all claims, demands, liability, actions, lawsuits, orders, and judgments (all together, the “Claims”) against the DRG Indemnitees arising from one or more of the following: (a) breach of any of the Terms and/or the Flowdown Terms, including, but not limited to, any License Term and/or any Acceptable Use Term or Flowdown License or Acceptable Use term, by Physician Practice, such User, or such Patient; (b) the negligence or other wrongful act or omission of: (i) the Physician Practice, including, but not limited to, medical malpractice; (ii) such User; or (iii) such Patient; (c) the use or abuse of the DermPRO Website, the Content, any of the Products, and/or any of the Physician Practice Services by the Physician Practice, such User, and/or such Patient; and/or (d) violation of any law, rule, regulation, or order by the Physician Practice, such User, or such Patient. DRG will give the Physician Practice, the indemnifying User, and/or the indemnifying Patient reasonable written or Electronic Notice of any written Claim subject to indemnification under these Indemnity Terms or any Flowdown Indemnity term. Physician Practice, its indemnifying Users, and its indemnifying Patients will undertake promptly defense of all Claims using counsel acceptable to DRG. If such defense is not undertaken promptly or is undertaken with counsel not acceptable to DRG, DRG may undertake such defense at the sole cost and expense of Physician Practice, such User and such Patient. Physician Practice, its indemnifying Users and its indemnifying Patients shall not settle any Claim without the prior written consent of DRG.

11. Physician Practice, User, and Patient Information, Names and Marks, Physician Practice, User, and Patient License and Covenants. Physician Practice and its Users and Patients will provide to DRG all information and writings requested by, and in a format specified by, DRG in order to provide or depict the DermPRO Website, the Content, the Products and/or the Physician Practice Services to the Physician Practice and/or its Users and Patients and/or to perform or enforce any of these Terms or the Flowdown Terms (all together, the “Physician Practice, User, and Patient Information”). The Physician Practice and its Users and Patients agree, covenant and grant as follows: (a) that DRG and its suppliers will and may rely upon Physician Practice, User, and Patient Information in order to provide or depict the DermPRO Website, the Content, the Products and the Physician Practice Services, to perform or enforce any of these Terms or the Flowdown Terms, for other purposes permitted in the Terms, the Flowdown Terms, or applicable law, and for purposes set forth in DRG’s privacy policy set forth at www.dermpro.com/privacy.html; (b) DRG and its suppliers are hereby granted a world-wide, non-exclusive, royalty-free, transferable, irrevocable, and perpetual license (with a right to sublicense third parties) to use, reproduce, copy, disclose, distribute, transmit, transfer, post, upload, display, adapt, modify, and make derivative works of the Physician Practice, User, and Patient Information in order to provide or depict the DermPRO Website, the Content, the Products and/or the Physician Practice Services to the Physician Practice, its Users, and/or its Patients, to perform or enforce any of these Terms or the Flowdown Terms, for other purposes permitted by these Terms or applicable law, and for purposes permitted by DRG’s privacy policy set forth at www.dermpro.com/privacy.html; (c) the Physician Practice, User, and Patient Information is complete and accurate and does not infringe the rights or property of third parties; (d) the Physician Practice and/or its Users and Patients, as applicable, own the Physician Practice, User, and Patient Information and/or have all rights and consents necessary to perform the Terms, including, but not limited to, the right to grant the licenses and sublicenses under this section of the Terms; and (e) the Physician Practice and its Users and Patients hereby consent to use of the Physician Practice, User, and Patient Information as described in the Terms and will provide written evidence of such consent as requested by DRG from time-to-time. The Physician Practice also covenants, agrees, and grants as follows: (s) the Physician Practice grants to DRG and its suppliers world-wide, non-exclusive, royalty-free, transferable, irrevocable, and perpetual license (with a right to sublicense third parties) to use the names and marks of the Physician Practice in order to provide or depict the DermPRO Website, the Content, the Products, and/or the Physician Practice Services to the Physician Practice, its Users and its Patients; (t) the names and marks of the Physician Practice do not infringe the rights or property of third parties; (u) the Physician Practice owns the Physician Practice names and marks and/or has all rights and consents necessary to perform the Terms, including, but not limited to, the right to grant the licenses and sublicenses under this section of the Terms; (v) the Physician Practice hereby consents to use of the Physician Practice names and marks as described in the Terms and will provide written evidence of such consent as requested by DRG from time-to-time; and (w) the Physician Practice consents to and authorizes DRG and its suppliers to coordinate on behalf of the Physician Practice with the Physician Practice’s other online suppliers as deemed necessary by DRG in order to provide or depict the DermPRO Website, the Content, the Products, and/or the Physician Practice Services to the Physician Practice, its Users, and/or its Patients and will provide written evidence of such consent and authorization as requested by DRG from time-to-time.

12. Confidential Information. (a) Unless otherwise required by law, no information provided by the Physician Practice, its Users, or its Patients to DRG, including, but not limited to Physician Practice, User, and Patient Information, is confidential information of the Physician Practice, its Users, or its Patients. Information provided by the Physician Practice, its Users, and/or its Patients may be used, disclosed, and copied by DRG or its suppliers for any purpose permitted by applicable law and/or the Terms or otherwise, Physician Practice, its Users and its Patients hereby consent to and authorize such use, disclosure, and copying, and Physician Practice, its Users, and its Patients will provide written evidence of such consent and authorization as requested by DRG from time-to-time. (b) The following information is and shall remain the confidential information and the sole and exclusive property of DRG and/or its suppliers: (i) De-Identified Information; (ii) Content which is not publicly available without restriction, including, but not limited to, pricing for Physician Practice Services; (iii) software programming code for the DermPRO Website and Content; (iv) the Terms; and (v) other information designated by DRG as confidential information from time-to-time. If disclosed to the Physician Practice, its Users, and/or its Patients by DRG, confidential information of DRG shall be used by them solely for the Purpose and shall not be copied or disclosed by them to third parties unless such copying or disclosure is approved in advance in writing by DRG. The Physician Practice, its Users, and its Patients have no interest or right in confidential information of DRG except as expressly granted by the Terms and will return or destroy all copies of confidential information of DRG in the possession or control of the Physician Practice, its Users, and/or its Patients upon demand by DRG and/or upon termination of the Terms and/or any license granted by DRG to use such information.

Only to the extent DRG is a business associate of Physician Practice, as the term business associate is defined in rules and regulations of the Department of Health and Human Services (“HHS rules”) at 45 CFR sec. 160.103 and only to the extent that DRG creates, receives, maintains, or transmits Protected Health Information (“PHI”), as the term Protected Health Information is defined in HHS rules at 45 CFR sec. 160.103, on behalf of Physician Practice, such PHI shall be subject to the business associate agreement (“BAA”) between DRG and Physician Practice. The BAA is set forth in Attachment A and is hereby made a part of these Terms. The BAA shall apply only if DRG is a business associate of Physician Practice and creates, receives, maintains, or transmits PHI under HHS rules and will not apply if DRG is not a business associate or does not create, receive, maintain or transmit PHI under HHS rules.

13. Acceptable Use. DRG may terminate, deny, suspend or otherwise restrict access to or use of the DermPRO Website or the Content by the Physician Practice, its Users, and/or its Patients, or terminate, in whole or in part, the Terms, if use, disclosure, or copying of the DermPRO Website or Content by the Physician Practice, its Users, and/or its Patients, in the sole discretion of DRG, violates the Terms and/or the Flowdown Terms, is objectionable or unlawful, and/or interferes with the functioning or use of the DermPRO Website and/or the Content by DRG or other users. Violation of Acceptable Use Terms includes, but is not limited to, any one or more of the following: (a) accessing without permission or right the accounts, the DermPRO Website, the Content, or computer systems of DRG or other persons, spoofing the URL, DNS or IP addresses of DRG or any other person, and/or penetrating the security measures of DRG’s DermPRO Website or computer system or any other person’s computer system, or to attempt any of the foregoing; (b) transmitting uninvited communications, data or information, or engaging in other similar activities, including, but not limited to, “spamming”, “flaming” or denial of service attacks; (c) intercepting, interfering with or redirecting email or other transmissions sent by or to DRG or others; (d) introducing into the DermPRO Website and related networks viruses, worms, harmful code or Trojan horses; (e) engaging in conduct that is defamatory, fraudulent, obscene or deceptive; (f) infringing or otherwise violating DRG's or any other person’s copyright, trademark, patent, trade secret, proprietary, or other intellectual property rights; (g) engaging in any conduct harmful to the DermPRO Website, the Content, the related networks, and/or other users of the same; and/or (h) using the DermPRO Website or the Content to violate or in violation of applicable law.

14. Flowdown Terms. The Physician Practice will require its Users and its Patients to agree in writing to terms at least as restrictive as the Terms set forth in sections 1- 3, 5 -13 and section 15 of the Terms, as set forth in Attachment B, Physician Practice Flowdown Terms and Conditions (“Flowdown Terms”). The Physician Practice will provide DRG with evidence in writing of its compliance with this section of the Terms upon demand by DRG from time-to-time. The Physician Practice, its Users, and its Patients will also be bound by and perform the Supplier Flowdown Terms and Conditions set forth in Attachment B to the Terms. Attachment B is hereby by made a part of the Terms. Physician Practice will also include terms in the Flowdown Terms that expressly make DRG a third party beneficiary of the Flowdown Terms, permit DRG to enforce the Flowdown Terms in court or in arbitration at DRG’s election against Users and/or Patients of the Physician Practice independent of the Physician Practice, and not permit such Users or Patients to enforce Flowdown Terms or these Terms against DRG.

15. Miscellaneous. (a) The Terms are the entire agreement between DRG and the Physician Practice and they supersede all prior or contemporaneous agreements, representations, and understandings. (b) The Terms may be changed only by DRG in accordance with the Terms. (c) Any party may waive performance of any Term by another party by written notice signed by the waiving party or by Electronic Notice from the waiving party. No other waivers shall be effective. (d) All obligations incurred by a party under the Terms, including, but not limited to Payment Terms, Confidential Information Terms, Indemnity Terms, and License Terms shall survive termination of the Terms. (e) In the event that a party commences litigation, mediation, or arbitration of a dispute against another party in connection with the Terms, the legal expenses and costs, including, but not limited to attorneys’ fees and other costs of litigation, mediation or arbitration, of the party that prevails in such litigation, mediation, or arbitration shall be paid by the party that did not prevail. (f) DRG may assign the Terms to a successor in interest without notice and/or to another person or entity by written notice or Electronic Notice to the Physician Practice. The Physician Practice may not assign the Terms without the prior written consent of DRG, which consent may be given in DRG’s sole discretion, and, if given, by either by written notice or Electronic Notice by DRG to Physician Practice. (g) In addition to payments due for Products, use of the DermPRO Website, the Content, and Physician Practice Services, the Practice will pay all taxes, duties, and fees required by law in connection with Products and Physician Practice Services, other than taxes on net income owed by DRG, unless an exemption applies by law and is duly documented by the Practice to the satisfaction of DRG. (h) DRG and the Practice are independent contractors and not agents or employees of the other. Except as otherwise expressed in the Terms, neither party may act for or bind the other. The persons furnished by each party are the employees or contractors of the furnishing party and not the employees or contractors of the other party. The furnishing party will be solely responsible for compliance with labor and tax laws applicable to that party’s employees and contractors. (i) In the event that any term of the Terms is held to be unenforceable, the unenforceable term shall be severed from the remainder of the Terms and the remaining enforceable Terms shall be performed by the parties. (j) DRG shall not be liable to the Practice for any failure or delay in performance due to causes beyond its reasonable control, including, but not limited to, weather, fire, storm, flood, earthquake, or other acts of God, war, terrorism, embargo, boycott, strikes or other labor disputes, delays or failures in transportation, acts of government, civil, or military authority, delays or failures by suppliers, and other causes beyond DRG’s reasonable control. DRG’s time for performance shall be extended by a period of time at least equal to the time period of the foregoing cause or causes. (k) The Terms shall be governed by and construed in accordance with the laws of the State of Texas, except laws concerning conflicts of law and venue for all permitted lawsuits and arbitrations in connection with these Terms and any Flowdown Terms shall be in Dallas County, Texas, unless otherwise agreed in writing by the parties to such lawsuits or arbitrations. The Physician Practice, its Users, and its Patients consent to personal jurisdiction of courts and arbitrations in Dallas County, Texas and will not object to such venue. (l) In lieu of judicial resolution of disputes in connection with the Terms, other than DRG claims for breach of License, Indemnity, Confidential Information, or Payment Terms, or similar Flowdown Terms, or claims by DRG for injunctive or other equitable relief in favor of DRG, DRG, the Physician Practice, and its Users and Patients agree to binding, final, confidential, non-class action commercial arbitration by the American Arbitration Association or JAMS, at DRG’s option, of such disputes, subject to the Federal Arbitration Act, 9 U.S.C. sec. 1, et seq. Any party may commence such arbitration after written or electronic notice of the dispute is given by the complaining party to the other parties, provided that the affected parties have not been able to resolve the dispute by negotiation for at least five (5) business days after the dispute arises. The prevailing party in the arbitration may cause any court with jurisdiction to enter the final decision of the arbitrator(s) as a final judgment in accordance with applicable law. THE FOREGOING TERMS WILL WAIVE THE RIGHT TO FILE A LAWSUIT IN COURT, WAIVE THE RIGHT TO A JURY TRIAL AND BAR CLASS ACTION LAWSUITS. THE PHYSICIAN PRACTICE, ITS USERS, AND ITS PATIENTS WILL NOT OBJECT TO SUCH WAIVERS AND BAR. (m) Risk of loss for Products and Physician Practice Services purchased by the Physician Practice or its Users or Patients shall pass to the Physician Practice or its Users or Patients at the time of purchase and DRG shall have no liability for loss of, damage to, or injury to such Products or Physician Practice Services after purchase by Physician Practice, its Users, or its Patients. Physician Practice, its Users and its Patients acknowledge and agree that each of them may purchase insurance to cover such risk of loss and that DRG will not purchase such insurance for the benefit of Physician Practice, its Users, or its Patients. (n) If any person believes the DermPRO Website or Content infringes that person’s copyright, that person should provide notice in writing to Derm Resource Group, LLC, attention Copyright Notice Manager, 6350 LBJ Freeway, Suite 256, Dallas, Texas, 75240, email address: webmaster@dermpro.com with the following information: (i) signature of copyright owner or person authorized to act on behalf of the owner; (ii) identification of copyrighted work claimed to be infringed; (iii) identification of the material claimed to be infringing or to be the subject of infringing activity and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact the complaining party (address, phone number and, if available, email address); (v) a statement that the complaining party has a good faith belief that use of the material in the manner complained is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the exclusive right allegedly being infringed.

ATTACHMENT A
BUSINESS ASSOCIATE AGREEMENT

THIS BUSINESS ASSOCIATE AGREEMENT (“BAA”) is part of the Terms between Physician Practice and DRG and is subject to the Terms.

1. General Definitions. The following terms used in this BAA shall have the same meaning as those terms in the HIPAA Rules (as the term HIPAA Rules is defined below): Breach; Data Aggregation; Designated Record Set; Disclosure; Health Care Operations; Individual; Minimum Necessary; Notice of Privacy Practices; Protected Health Information; Required By Law; Secretary; Security Incident; Subcontractor; Unsecured Protected Health Information; and Use.

2. Specific Definitions.

a. Business Associate. “Business Associate” shall generally have the same meaning as the term “business associate” at 45 CFR sec. 160.103, and in reference to the party to this agreement, shall mean DRG.
b. Covered Entity. “Covered Entity” shall generally have the same meaning as the term “covered entity” at 45 CFR sec. 160.103, and in reference to the party to this agreement, shall mean Physician Practice.
c. HIPAA Rules. “HIPAA Rules” shall mean the Privacy, Security, Breach Notification, and Enforcement Rules at 45 CFR Parts 160 and 164.

3. Obligations and Activities of Business Associate. Business Associate agrees to:

a. Not use or disclose Protected Health Information other than as permitted or required by the Agreement or as Required by Law; b. Use appropriate safeguards, and comply with applicable provisions of Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information, to prevent Use or Disclosure of Protected Health Information other than as provided for by the Agreement;
c. Report to Covered Entity any Use or Disclosure of Protected Health Information not provided for by the Agreement of which it becomes aware, including Breaches of Unsecured Protected Health Information as required at 45 CFR sec. 164.410, and any Security Incident of which it becomes aware;
d. In accordance with 45 CFR secs. 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of the Business Associate agree to the same restrictions, conditions, and requirements that apply to the Business Associate with respect to such information;
e. Make available Protected Health Information in a Designated Record Set to the Covered Entity as reasonably necessary to satisfy Covered Entity’s obligations under 45 CFR sec. 164.524;
f. Make any amendment(s) to Protected Health Information in a Designated Record Set as reasonably directed or agreed to by the Covered Entity pursuant to 45 CFR sec. 164.526, or take other measures as reasonably necessary to satisfy Covered Entity’s obligations under 45 CFR sec. 164.526;
g. Maintain and make available the information required to provide an accounting of Disclosures to the Covered Entity as reasonably necessary to satisfy Covered Entity’s obligations under 45 CFR sec.164.528;
h. To the extent the Business Associate is to carry out one or more of Covered Entity's obligation(s) under Subpart E of 45 CFR Part 164, comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligation(s); and
i. Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules.

4. Permitted Uses and Disclosures by Business Associate.

a. Business associate may only Use or Disclose Protected Health Information:

i. as necessary to perform the Terms;
ii. to de-identify the information in accordance with 45 CFR secs. 164.514(a)-(c); and/or
iii. as Required by Law.

b. Business Associate agrees to make Uses and Disclosures and requests for Protected Health Information consistent with Covered Entity’s Minimum Necessary policies and procedures provided by Covered Entity to Business Associate in writing and/or upon demand by Business Associate.

c. Business Associate may not Use or Disclose Protected Health Information in a manner that would violate Subpart E of 45 CFR Part 164 if done by Covered Entity, except for the specific Uses and Disclosures set forth below:

i. Business Associate may Use Protected Health Information for the proper management and administration of the Business Associate or to carry out the legal responsibilities of the Business Associate.
ii. Business Associate may Disclose Protected Health Information for the proper management and administration of Business Associate or to carry out the legal responsibilities of the Business Associate, provided the Disclosures are Required by Law, or Business Associate obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and Used or further Disclosed only as Required by Law or for the purposes for which it was disclosed to the person, and the person notifies Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached.

5. Provisions for Covered Entity to Inform Business Associate of Privacy Practices and Restrictions.

a. Covered Entity shall notify Business Associate of any limitation(s) in the Notice of Privacy Practices of Covered Entity under 45 CFR sec. 164.520, to the extent that such limitation may affect Business Associate’s Use or Disclosure of Protected Health Information.
b. Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an individual to Use or Disclose his or her Protected Health Information, to the extent that such changes may affect Business Associate’s Use or Disclosure of Protected Health Information.
c. Covered Entity shall notify Business Associate of any restriction on the Use or Disclosure of Protected Health Information that Covered Entity has agreed to or is required to abide by under 45 CFR sec. 164.522, to the extent that such restriction may affect Business Associate’s Use or Disclosure of Protected Health Information.

6. Permissible Requests by Covered Entity. Covered entity shall not request Business Associate to Use or Disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 CFR Part 164 if done by covered entity.

7. Term and Termination.

a. Term. This Agreement shall become effective only when DRG is a Business Associate as defined at 45 CFR sec. 160.103 and, in such capacity, creates, receives, maintains, or transmits Protected Health Information on behalf of Covered Entity. This Agreement shall terminate upon the earliest to occur of the following:

i. termination of the Terms;
ii. termination of the Agreement for cause in accordance with the Agreement;
iii. termination of DRG’s status as a Business Associate; and/or
iv. termination of DRG’s Use and Disclosure of Protected Health Information.

b. Termination for Cause. Either party may terminate this Agreement for cause if the other party has breached a material term of the Agreement and the breaching party has not cured the breach within thirty (30) days of receipt of written or electronic notice of the breach.

8. Obligations of Business Associate Upon Termination.

a. Upon termination of this Agreement for any reason, and except as otherwise set forth in this Agreement, Business Associate shall return to Covered Entity or destroy all Protected Health Information received from Covered Entity, or created, maintained, or received by Business Associate on behalf of Covered Entity, that the Business Associate still maintains in any form. Business associate shall retain no copies of the protected health information, except as otherwise set forth in this Agreement.
b. Business Associate may retain only that Protected Health Information which is necessary for Business Associate to continue its proper management and administration or to carry out its legal responsibilities, and, with respect to such retained information:

i. continue to use appropriate safeguards and comply with Subpart C of 45 CFR Part 164 with respect to electronic Protected Health Information to prevent Use or Disclosure of the Protected Health Information, other than as provided for in this section, for as long as Business Associate retains the Protected Health Information;
ii. not Use or Disclose the Protected Health Information retained by Business Associate, other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at section 4, Permitted Uses and Disclosures By Business Associate, which applied prior to termination; and
iii. return to Covered Entity or destroy the Protected Health Information retained by Business Associate when it is no longer needed by Business Associate for its proper management and administration or to carry out its legal responsibilities.

c. Survival. The obligations of Business Associate under this section shall survive the termination of this Agreement.

9. Miscellaneous.

a. Regulatory References. A reference in this Agreement to a section in the HIPAA Rules means the section as in effect or as amended.
b. Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for compliance with the requirements of the HIPAA Rules and any other applicable law.
c. Interpretation. Any ambiguity in this Agreement shall be interpreted to permit compliance with the HIPAA Rules. No ambiguity in a term or provision of this Agreement shall be construed against either party because that party or its representative drafted the term or provision.