Terms of Service

Updated 19 September 2025

IMPORTANT:
PLEASE READ EVERYTHING BELOW CAREFULLY BEFORE ACCEPTING.  BY REGISTERING, ENTERING YOUR NAME AND CLICKING “ACCEPTED AND AGREED,” OR USING ANY SERVICES, THE  CUSTOMER AGREES TO THESE TERMS OF SERVICE (“TOS”).  

1. Introduction

1.1 Welcome.  Welcome to the network of websites of Fresh Clinics Management,  LLC, a Delaware limited liability company (“FC Management”), and its subsidiaries and their respective Affiliates (collectively with FC Management, “Fresh Clinics,” also referred to herein as “us,” “we” and “our”) at www.FreshClinics.com, www.FreshClinics.com/ subdomains,  and our social media pages (collectively, the “Site”). For purposes of this TOS, “Affiliate” means,  with respect to an entity, any other entity that controls, is controlled by, or is under common control with such entity; provided that such entity shall be considered an Affiliate only for the time during which such control exists, and “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of any such entity whether through the ownership of voting securities, by contract, or otherwise. 

1.2 Fresh Clinics.  Fresh Clinics provides certain management and other support services (collectively, “FC Services”) to Licensed Professionals and to cosmetic medical spas
and clinics (“Med Spas”) that provide medically supervised elective, nonsurgical, cosmetic, medical and related procedures, treatments, and related services (collectively, “Treatments”) to Patients of the Licensed Professionals, which Patients are also Clients of one or more Med Spas (as such terms are defined below). Licensed Professionals provide certain related consulting services to Med Spas (“Consulting Services”). Fresh Clinics provides its FC Services primarily, but not exclusively, through its Services Platform (defined below). In a symbiotic fashion:

     1.2.1 the FC Services include, but are not limited to, certain management and administration services for Licensed Professionals,   inventory   control   and   supply   chain
management for Med Spas, scheduling among Licensed Professionals and Med Spas and Clients/Patients, quality assurance and compliance protocols and procedures, medical records
storage and retrieval, and educational training services. Among Fresh Clinics’ supply chain management services, the Services Platform facilitates the supply to Med Spas of Treatments-
related products, including, but not limited to, cosmetic injectables or other prescription medicines that require a Licensed Professional either to administer (or to authorize and supervise their administration by qualified Med Spa personnel) (“Substances”), manuals, training materials, and other Med Spa-related supplies and products (collectively with Substances, “Products”);

      1.2.2 the FC Services support Med Spas, which in turn provide complementary  management and administrative services, including but not limited to marketing services, facilities,
Terms of Service Page 2 equipment, medical records entry services, and other support, management and administrative services, and other resources (“Med Spa Services”) to licensed physicians (“Physicians”), and licensed   and   certified   advanced   registered   nurse   practitioners   (“ARNPs”)   and   physician assistants who are under the direct supervision of the Physicians (“PAs,” and collectively with ARNPs, “Midlevel Practitioners,”) who are licensed, experienced and otherwise qualified in the state in which the Med Spa and Patient are located and the Treatments are performed (collectively, “Licensed Professionals”);

      1.2.3 the Licensed Professionals, in turn, agree to provide Consulting Services to Med Spas to medically supervise such Treatments for their patients (“Patients”) who are clients of
one or more Med Spas (“Clients”), and the Med Spas agree to provide to the Licensed Physicians applicable Med Spa Services related to the Treatments;

      1.2.4 the Treatments may be conducted at the respective Med Spas or other permissible   locations,   supervised remotely by Licensed Professionals in accordance with applicable telemedicine Laws and facilitated in part through the Services Platform, or on-site. For purposes of this Agreement, “Law” means any law, statute, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement or rule of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or
tribunal of competent jurisdiction; and

    1.2.5 the respective services of Fresh Clinics, Licensed Professionals, and Med Spas are governed by this TOS, the related agreements set forth in addenda to this TOS described in Section 1.4, below, and the other parts of this Agreement described in Section 2.1, below.

 1.3 “You” and “your.” “You” and “your” in this TOS refer to:

               1.3.1 the Customer of ours—either Med Spa or Licensed Professional—who subscribes to Fresh Clinics’ online services platform (“Services Platform”) and so engages us to perform one or more FC Services (“Customer”), and

               1.3.2 Customers’ respective authorized and registered users of the Services who meet the requirements of Users set forth below (“Users”).

 1.4  Addenda to Terms. As noted above, Fresh Clinics has two types of Customers, namely, (1) Licensed Professionals and (2) Med Spas. This TOS and the EULA (discussed below) apply to all Customers and their respective Users. Addenda to this TOS apply as follows

    1.4.1 A separate but related form of Management Services Agreement for a Fresh Clinics Affiliate and each Licensed Professional for the state where the respective Patient is located and the applicable Procedure will be performed (each an “FC MSA”) is attached to the Terms as  Addendum A  , which is incorporated herein by reference and may be viewed at Addendum A. 

     1.4.2 A separate but related form of Services Agreement between a Fresh Clinics Affiliate and each Med Spa in the state where the respective Patient is located and the applicable Procedure will be performed (each an “FC-Med Spa Agreement”) is attached to this TOS as Addendum B, which is incorporated herein by reference and may be viewed at Addendum B;

     1.4.3 A separate but related form of Licensed Professional Consulting and Med Spa Management Services Agreement between each Licensed Professional and each Med Spa in the state where the respective Patient is located and the applicable Procedure will be performed (each an “Med Spa MSA”) is attached to the Terms as Addendum C, which is incorporated herein by reference and may be viewed at Addendum C. Fresh Clinics shall be deemed to be a third-party beneficiary to each LP-C Agreement, and you agree not to amend or terminate any LP-C Agreement: (i) without at least ten (10) business days’ prior written notice to Fresh Clinics, and (ii) without Fresh Clinics written consent, which consent shall not be unreasonably withheld;  and

     1.4.4 A separate but related form of Business Associate Agreement (“BAA”) is attached to the Terms as Addendum D, which is incorporated herein by reference and may be viewed at Addendum D.

     1.4.5 A separate but related form of Notice of Privacy Practices (“NPP”) is attached to the Terms as Addendum E, which is incorporated herein by reference and may be viewed at Addendum E.

     1.4.6  When you register to use the Services Platform, if you are a Licensed Professional, you will be asked and will need to agree to enter into appropriate agreements in the form of Addendum A and Addenda C, D and E, and if you are a Med Spa, you will be asked and will need to agree to enter into appropriate agreements in the form of Addenda B-E.

1.5  Relationship of the Parties.

     1.5.1 The Services Platform is a technology tool and platform to facilitate and support the on-demand connection, supervision, documentation, record keeping, Product supply, and certain other interactions and services between us, Licensed Professionals, Med Spas and/or Patients. 

     1.5.2 Fresh Clinics only provides FC Services, and through the Services Platform, a technological solution for Med Spas to order third-party Products. Fresh Clinics does not itself make, stock, take title to, deliver or distribute any Products, or provide any medical or other professional services. The professional relationship between Licensed Professionals and their Patients will be solely between the Licensed Professionals and their Patients, at all times subject to the sole direction and supervision of the treating Physician.  Fresh Clinics will not interfere with, control, direct, or supervise Licensed Professionals in connection with the provision of their Consulting Services. Med Spas similarly agree that they and their Users will be subject to the medical supervision of, will follow, and will not interfere with or act contrary to, the exercise of the applicable Licensed Professionals’ medical judgment in the care and treatment of their Patients at the respective Med Spa, notwithstanding that such Patients are also Clients of the Med Spa.

     1.5.3 Notwithstanding any provision to the contrary, this TOS, the Addenda, and  other parts of the Agreement, or the provision of Products and Services, are not intended to:
                 1.5.3.1 constitute the use of a medical license or the practice of medicine by anyone other than an appropriately licensed Physician;
                 1.5.3.2 aid Fresh Clinics, any Med Spa, any User (other than Licensed Professionals), or any other unlicensed person to practice medicine; or    
                 1.5.3.3 create any other arrangements in violation of any applicable Law.

     1.5.4 If Fresh Clinics is unable to perform any Service required of it under this Agreement because such performance would or may be deemed to constitute the practice of medicine by applicable authorities, Fresh Clinics will deliver notice to the applicable Customers, which are responsible for such performance, either themselves or through third parties, regardless of whether or not they receive such notice.

     1.5.5 Fresh Clinics and Customers specifically acknowledge and agree that although Fresh Clinics will provide FC Services to Licensed Professionals and Med Spas, the respective Licensed Professionals will remain entirely independent of Fresh Clinics and any Med Spa as to the diagnosis and treatment of Patients and all other medical, professional and ethical affairs of Licensed Professionals. The Licensed Professionals accept full responsibility to their respective Patients for the nature and character of all Consulting Services rendered.

     1.5.6 The parties to each respective agreement are independent contractors and will so represent themselves in all regards. No such party is the agent of any other, and no such party may make commitments on any other’s behalf. The parties agree that no Fresh Clinics employee or contractor will be an employee of any Customer, and no Customer employee or contractor will be an employee of any Fresh Clinics.

     1.5.7 Nothing in the Agreement requires Customer to use the Services Platform or any other Services during the Term. Customer may engage in any other business, work or employment at any time; provided, however, that Licensed Professionals shall only use the FC Services with Med Spas which are also Customers, and Med Spas shall only use the FC Services with Licensed Professionals who are also Customers, all as set forth in this Agreement, and not for any other purpose. 

2. BINDING AGREEMENT

2.1 What Constitutes the Agreement.  This TOS applies to all Products and Services obtained from  Fresh  Clinics.  All  additional  guidelines, terms, policies, requirements and
standards, protocols and rules, including any of our policies on the Site, such as but not limited to our  Privacy Policy, and all additional guidelines, terms, policies, protocols and rules, are
incorporated by reference into this TOS as part of the Agreement, and you are agreeing to accept and abide by them when you purchase or use a Product or Service from or through Fresh Clinics, register your Account (defined below) with Fresh Clinics, or authorize Users to use any Service (collectively, “Agreement”). The Agreement constitutes a binding contract between you and us. You agree that your consent to the Agreement is without limitation or qualification. 

2.2 General Scope of Agreement. The Agreement explains your and our respective rights, restrictions, and obligations governing the Site, Products and FC Services, and related
activities as generally described in the Agreement. This includes but is not limited to explaining how subscriptions to our Services Platform work, the kinds of data we collect, the way we bill, how we interact with you, restrictions on your access to and use of the Site, Services Platform, and other FC Services, limitations of our liability, warranty disclaimers, indemnities, dispute resolution that includes binding arbitration, and other important terms. You must—and will be assumed to have—read, understood and agreed to this TOS of Service and the Agreement. We encourage you to revisit this TOS of Service whenever you have a question and from time to time, as they may be updated frequently.

 2.3 NOTICE. PLEASE THEREFORE CAREFULLY READ THIS AGREEMENT BEFORE YOU REGISTER OR USE ANY SERVICES. IF YOU DO NOT AGREE WITH THE AGREEMENT IN ITS ENTIRETY, YOU MAY NOT REGISTER OR USE ANY SERVICES, AND DOING SO WOULD BE UNAUTHORIZED, CONSTITUTE A TRESPASS OF OUR SITE, AND VIOLATE APPLICABLE LAW. Any acceptance of your offer to subscribe, and the provision of our Services, will occur at our principal places of business, currently in Houston, Texas.

2.4 Changes to the Agreement. We reserve the right, in our sole discretion, to change the Agreement at any time, effective no less than thirty (30) days after posting of the revised Agreement on the Site. Your continued use of the Site or any FC Service after such posting or notification means you accept all revisions. If you do not agree to the revised Agreement, you must terminate the Agreement pursuant to the termination provisions below, and immediately discontinue your use of the Site and the FC Services. Except solely as provided in this paragraph and the severability provision of this Agreement, this Agreement may not be changed without the handwritten (non-electronic) signature of an authorized executive officer at FC Management.

2.5 The FC App. In order to access the Services Platform and use other Services or order Products, each User must install and use our client-side software application (“FC App”) on
the User’s own or Customer-provided handheld mobile device (e.g., iPhone, iPad, or Android smartphone (coming soon), etc.), computer or other compatible device used by the User to access  the Services Platform (“Own Device”). Use of the FC App requires you and each of your Users to accept Fresh Clinics’ End-User License Agreement (“EULA”) upon downloading the FC App on  each of the User’s Own Devices. The EULA, which may be viewed at EULA, is incorporated into and made a part of the Agreement. You agree to download and use the FC App in order to receive  and interact with the Services Platform, including but not limited to charting all treatment notes of Patients examined and/or treated by Licensed Professionals. After you have registered and completed compliance checks, we will send your FC App details via email. You will receive unique login details and detailed instructions for downloading the FC App (iOS) from the App Store. 

2.6 Business Associate Agreement. The Parties acknowledge that Fresh Clinics is a “Business Associate” (as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)). The Parties further acknowledge that each Med Spa and each Licensed Professional is a Covered Entity as defined under HIPAA and may receive Patient protected health information as defined under HIPAA (“PHI”) in relation to the FC Services, Consulting Services and/or Med Spa Services. You agree to enter into and shall be deemed to have entered into BAAs as required by Law (and the applicable addenda to this TOS) with Fresh Clinics and or one another with respect to each Patient’s PHI substantially in the form of BAA set forth in Addendum D hereto. Without limitation, the BAA authorizes Fresh Clinics to use PHI to perform the FC Services, including data aggregation services for its Customers to, among other things, help improve the standard of care for Patients.

2.7 Notice of Privacy Practices. The Licensed Professionals and Med Spas shall each independently present the HIPAA Notice of Privacy Practices to their Patients/Clients in the form set forth in Addendum E to this TOS. 

3.  REGISTRATION AND USE OF SERVICES

3.1 Registration. Only Users may order Products and use our FC Services, including the Services Platform, the FC App, and restricted portions of the Site. To do so, each Customer and User must first register for an authorized user account on our Site (“Account”), provide all information about the Customer and/or User as required in the registration form, and agree to this TOS and each applicable Addenda. When Customers or Users register with us, they must provide us with complete and accurate registration information. For Customers, this includes, without limitation, the Customer’s full legal name, contact information, billing information, taxpayer ID, the number and names of your registered Users and the Services Platform that each User is registering to use under your subscription plan (“Subscription”), and other information required by us in order for you to register for and use the Services. For your Users, this includes,  without limitation, your and the User’s full legal names, and the User’s applicable email address.

3.2 Your Account. Accounts are of two types, one for each type of Customer, namely, Accounts for Licensed Professionals and Accounts for Med Spas. The type of Account you have or may use, and the FC Services to which you are entitled to use and/or Products to order, may depend on the type of Customer you are and the type of subscription plan to which you have agreed.

     3.2.1 Possible Dual Roles. Some Licensed Professionals may own and operate Med Spas, but also act separately in their capacity as Licensed Professionals. For purposes of this TOS and each Addenda, where Licensed Professionals act as owners and operators of Med Spas, they would be considered to be acting as or on behalf of their Med Spas. Conversely, where they act in their capacity as Licensed Professionals, for purposes of this TOS and each Addenda,  they would be considered to be Licensed Professionals. For the avoidance of doubt, such Licensed Professionals would register for both types of Accounts, each to be used exclusively for the respective roles of each such Licensed Professional.

     3.2.2 User Names and Passwords. As part of the registration process, each User must provide a unique user name and password associated with your type of Account. You represent and warrant that: (i) all required registration information you and your Users submit is truthful and accurate; and (ii) you and they, as applicable, will promptly update such information to maintain its accuracy at all times.

3.3 Account Security. As between you and Fresh Clinics, you are solely responsible for maintaining the confidentiality of your Account login information, including but not limited to your Users’ respective User names and passwords, and for all activities that occur under your Account. Users must use “strong” passwords (e.g., passwords that are at least eight (8) characters in length and use a combination of upper- and lower-case letters, numbers, and symbols, or other similarly secure method as technology may change) with your Account, and maintain your password securely to prevent others from gaining access without your permission. Fresh  Clinics reserves the right to refuse registration of,  or cancel passwords, it deems inappropriate. You agree to immediately notify Fresh Clinics of any unauthorized use, or suspected unauthorized use, of your Account or any other breach of security. Fresh Clinics is not liable for any loss or damage arising from your failure to comply with the above requirements or any other unauthorized use.

3.4 User Requirements.  Users must: (i) be at least eighteen (18) years old; (ii) be identified as a User with complete and accurate information by Customer for registration of and subscription to the specific Services Platform that each User is authorized to use; (iii) reside in the United States of America (including its territories), or other countries acceptable to us
(“Territory”); and (iv) otherwise comply with the Agreement. Customer agrees that all of its Users Terms of Service Page 7 and Collaborators (defined below) will comply with the Agreement. Customer must also pay the applicable Subscription Fees for all of its Users. 

3.5 Your Acceptance. When you click on the “Accepted and Agreed” button, register with us or update your Account information, or use our Services or Products, you: (i) represent and warrant that the Account information you provide is complete and accurate, (ii) consent to be bound by, and become a party to the Agreement and applicable Addenda, (iii) agree to keep your registration and payment information with us current, and (iv) agree to comply with all applicable Laws in connection with your and your Users’ use of the Site or any Products or FC Services and in providing your respective services under the applicable Addenda, and not to use any Products or FC Services in a way that would violate any applicable Laws, including but not limited to U.S. export, foreign corrupt practices, money-laundering, or FDA Laws, and any applicable state corporate practice of medicine Laws. If you do not agree to (or cannot comply with) all of the terms of the Agreement, click the “I Decline” button, and do not use the Site or any FC Services.

3.6 Modification or Discontinuance. Fresh Clinics reserves the right, at any time, to modify, suspend, or discontinue the FC Services or any part thereof with or without notice. You
agree that Fresh Clinics will not be liable to you or to any third party for any modification,  suspension, or discontinuance of the FC Services or any part thereof. 

4.  ACCESS TO PRODUCTS AND FC SERVICES

4.1 Access and Use.  Subject and pursuant to the terms of the Agreement, including the timely payment of any applicable Fees, Fresh Clinics grants to Customer and its Users a non-transferable, non-exclusive, revocable, limited right (without the right to grant further rights to others except only as may be stated expressly in this TOS) to access and use the Services Platform and other FC Services, including Documentation, during the Term only for Customer’s internal business purposes. Users are only authorized to access and use such Services Platform on the User’s Own Devices. For purposes of the Agreement, “Documentation” includes, without limitation, digital forms of training and educational materials, document forms, Med Spa policies, manuals, requirements, standards, procedures, checklists, and other materials that are provided by Fresh Clinics as part of the FC Services or Products.

4.2 Automatic Software Updates.  Fresh Clinics may, from time to time, develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the FC Services, Platform Services and/or the FC App (“Updates”). These may be automatically installed without providing any additional notice or receiving any additional consent. You consent to automatic Updates. If you do not want such Updates, your alternative is to terminate your Account and stop using the FC Services and purchasing Products. If you do not terminate a previously created Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the FC Services and order Products, and you agree to promptly install any Updates that Fresh Clinics may provide. Your continued use of the FC  Services and ordering of Products is your agreement: (i) to this TOS with respect to the updated FC Services, and (ii) to the EULA, which will continue to apply to any Updated FC App.

4.3 General Description of the FC Services.
              4.3.1 The FC Services, among other things, facilitate the separate Physician-Patient relationships between Licensed Professionals and Patients of Med Spas as to which the Med Spa uses any FC Services. For a Med Spa with a Client for which the Med Spa would like to Terms of Service Page 8 use the FC Services to engage a Physician and the Physician’s associated Midlevel Practitioners, for example, the Med Spa (whose Account is current) may, in its sole discretion, request Consulting   Services from such   Licensed   Professionals through the   Services Platform  (“Consulting Request”). The Licensed Professionals who have indicated their availability on the Services Platform would receive notification of the Consultation Request and may, in their sole discretion, accept the request. The Services Platform would assist the Med Spa in selecting the accepting   Licensed   Professionals, whereupon a separate   LP-C Agreement between Applicable Licensed Professionals and Med Spa would be formed. The Services Platform can facilitate further communications between such customers. If no Physician accepts the Consultation Request or the respective Licensed Professionals fail to provide the Consulting Services at the agreed time, the Services Platform would notify the Med Spa, which would not be charged the respective Consulting Fee (defined below).

 4.4 Interface with Third-Party Products and FC Services. Fresh Clinics provides cosmetic injectables, i.e., Substances, and other Products from third parties, and may, from time to
time, provide you the opportunity to interface with one or more third-party services, through the FC Services (collectively, “Third Party Products and Services”). You decide which Third-Party Products you want to purchase. In some cases, you decide whether and which Third-Party Services you want to purchase or use. (An applicable Licensed Professional with procurement authority will generally need to authorize a Med Spa to procure appropriate Substances for their respective Patients/Clients.) Your explicit consent and authorization are required in order to purchase and/or use such Third-Party Products and Services. You agree that Fresh Clinics may  exchange information and data regarding you, including your confidential information, in order, among other things, to enable you to order, purchase and use such Third-Party Products and Services, subject to Addenda D and E hereto. Once this information is shared with the particular Third-Party Product and Service supplier or provider, its use will be governed by the third-party privacy policy and not by the terms of Fresh Clinics’ Privacy Policy or Agreement. You acknowledge and agree that Fresh Clinics makes no representation or warranty about the safety of any Third-Party Products or Services, and that, in relation to Fresh Clinics, your use of any Third-Party Products and Services is “AS IS” and at your sole risk. You acknowledge and agree that Fresh Clinics makes no representation or warranty about the operation, reliability, or safety of any Third Party Products or Services. Accordingly, Fresh Clinics is not responsible for your use of any Third Party Product or Service or any personal injury, death, property damage (including, without limitation, to your property), or other harm or losses arising from or relating to your use of any Third Party Products or Services. You should contact the third party with any questions about their Third Party Products and Services.

 4.5 App Stores. You acknowledge and agree that the availability of the FC App is dependent on the third party websites from which you download the FC App, e.g., the App Store from Apple or the Android app market from Google (when available) (each an “App Store”). You acknowledge that this TOS are between you and Fresh Clinics and not with an App Store. Each App Store may have its own terms and conditions to which you must agree before downloading the FC App from it. You agree to comply with, and your license to use the FC App is  conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of this TOS, the more restrictive or conflicting terms and conditions in this TOS apply.

4.6 Certain Restrictions. The rights granted to you in this TOS are subject to, without limitation, the following restrictions. You agree not to:

              4.6.1 license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the FC Services, including but not limited to the Services Platform, FC App, and Documentation; 
              4.6.2 modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Products or FC Services; 
              4.6.3 access or use any Products or FC Services in order to develop or improve a similar or competitive service; 
              4.6.4 use any Product or FC Service in a service bureau or time sharing environment; 
              4.6.5 upload, transmit, or distribute any computer viruses, worms, ransomware, back doors, or any software intended or used to damage or alter a computer or communication network, computer, handheld mobile device, any FC Service, any Product, the FC App, or any other system, device or property; 
              4.6.6 interfere with, disrupt, or attempt to gain unauthorized access to, the servers or networks connected to the FC Services or violate the regulations, policies, or  procedures of such networks; 
              4.6.7 access (or attempt to access) any of the FC Services by means other than through the FC App; or 
              4.6.8 remove, obscure, or alter any proprietary rights notices or legends (including copyrights and trademark notices and confidentiality legends) which may be contained in or displayed in connection with the Products or FC Services. Except as expressly stated herein, no part of the Product or FC Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted, or transmitted in any form or by any means. Any future release,  Update, or other addition to functionality of the FC Services shall be subject to this TOS.

 4.7 Customer and User Obligations. Without limitation, each Customer and User agrees as follows:

     4.7.1 Compliance. Without limitation, except as otherwise expressly provided in the Agreement, you agree to comply with all applicable Laws, as well as our policies and directions, and the directions of any consulting Physician regarding the administration of any Substances, all other Treatments, medical recordkeeping, and the receipt, possession, storage and supply of, and record keeping for, Products, including but not limited to Substances.

     4.7.2 Professional standards. You agree at all times to conduct yourself and use the FC Services and Products in accordance with high professional standards of care, skill, diligence, and conduct in the industry, courteously, promptly, and appropriately for the services you provide to Patients or one another or Fresh Clinics, as well as in the provision, care, security, storage and use of any Products.  

     4.7.3 Qualifications. During the Term of this Agreement, you shall maintain all of  your  respective   medical   related   required   licenses,   permits,   credentials,   certifications, registrations,   authorizations,  continuing education requirements, and other applicable professional qualifications and requirements (“Qualifications”). You shall similarly maintain all Terms of Service Page 10 Qualifications required to properly establish, maintain, and operate your respective businesses. Without limiting the generality of the foregoing, Qualifications for Licensed Professionals are set forth in Addendum A and further Qualifications for Med Spas are set forth in Addendum B.

     4.7.4 Problems. You shall promptly notify us in writing of any material complaint,  claim or potential claim, and any relevant details, received by you in respect of any FC Services, Products, Documentation, or any Treatments, and of any proposed responses by you or any of  your Users.

     4.7.5 Unauthorized  Access.  You   shall   take   reasonable   steps   to   prevent  unauthorized access to the Services Platform, including without limitation by protecting your passwords and other log-in information. Customer shall notify Fresh Clinics immediately of any known or suspected unauthorized use of the Services Platform or breach of its security, and shall  use best efforts to stop said breach.

     4.7.6 Acceptable Use. In addition to other restrictions and obligations, you shall not: (i) provide User passwords or other log-in information to any third party; (ii) share non-public FC Services features or content with any third party; (iii) engage in web scraping or data scraping on or related to the Site, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that we suspect any breach of the requirements of this Section 4, including without limitation by your Users, we may suspend your access to the FC Services without advanced notice, in addition to such other remedies we may have. We are not required to take any action against Customer or any User or other third party for violating this Section 4, or the Agreement, but we are free to take any such action as we see fit.

4.8 Access Outside Certain Countries.  Although the Sites may be accessible through the internet throughout the world, the Products and FC Services provided or accessed through or on the Sites are not available to all persons or in all countries. Some or all of the features of the Sites may not work or be appropriate for use in other countries. If you choose to access the Sites from outside the United States, you do so on your own initiative and you are solely responsible for complying with all applicable Laws in such country, and you agree to defend, indemnify and hold harmless Fresh Clinics from and against any and all claims, demands, suits, proceedings, settlements, losses, liabilities, damages, taxes, fines, penalties, costs and expenses (including, without limitation, attorney’s, witness, and arbitration fees) (collectively, “Claims”) arising out of or relating to any breach by you of this Section 4.8. To the extent permissible by law, Fresh Clinics accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Sites, Products or FC Services outside the United States. In any event, you will be bound by this TOS wherever you access or use the Sites or FC Services. Fresh Clinics expressly prohibits the transfer of Products or FC Services to, or use of Products or FC Services by, any “Specially Designated National” designated by the U.S. Office of Foreign Asset Control (“OFAC”), or in any OFAC-sanctioned country.

4.9 Export/Import Control. The Products, FC Services, and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to strictly comply with all such laws and regulations and acknowledge that  you have the responsibility to obtain authorization to export, re-export, or import the Products, FC App, and related technology, as may be required. You will defend, indemnify and hold harmles Fresh Clinics from any and all Claims arising from or relating to any breach by you of this section.

5.  USAGE AND LIMITATIONS OF FRESH CLINICS SERVICES

5.1 System Requirements.  The FC Services will not be accessible without:
               5.1.1 a  reliable  internet  connection, service and equipment with sufficient capabilities to host uninterrupted real-time online video conferences through the Site;
               5.1.2 use of an App Store that contains and provides for the download of the FC App; and 
               5.1.3 other system elements that may be specified by Fresh Clinics. It is your responsibility to ensure that you have all required system elements and that they are compatible
and properly configured. You acknowledge that the FC Services may not work as described when the requirements and compatibility have not been met.

5.2 Intended Use of the Products and FC Services. The FC Services are intended to be accessed and used only for non-time-critical information and use of Products and related matters. While we aim for the Services Platform to be highly reliable and available, they may be subject to sporadic interruptions and failures for a variety of reasons beyond Fresh Clinics’ control, including Wi-Fi intermittency, service provider uptime, and mobile carrier limitations, among others. You acknowledge these limitations and agree that Fresh Clinics is not responsible for any damages allegedly caused by the failure or delay of any Products or FC Services.

5.3 No Life-Safety or Critical Uses of the FC Services. You acknowledge and agree that the Products and FC Services, including any Customer support services, whether standing
alone or interfaced with Third-Party Products and Services, are not certified and shall not be used for emergency medical situations. Fresh Clinics makes no warranty or representation that use of the Products or FC Services with any third-party product or service will affect or increase any level  of safety or limit injury or damage to persons or property. FRESH CLINICS WILL NOT DISPATCH EMERGENCY PERSONNEL IN THE EVENT OF A MEDICAL EMERGENCY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT FRESH CLINICS IS NOT LIABLE FOR ANY INJURY OR DAMAGE TO PERSONS OR PROPERTY ARISING OUT OF ANY MEDICAL EMERGENCY. All  life threatening and emergency events should be directed to the appropriate response services. You expressly acknowledge and agree that Fresh Clinics is not liable for your, or any emergency responder’s or any other third-party’s, actions or failures to act arising out of the use of any Products or FC Services.

 5.4 Temporary Suspension. The Services Platform or the FC App may be suspended temporarily without notice for security reasons, system failure, maintenance and support, or other circumstances. You agree that you will not be entitled to any refund or rebate for such suspensions. Fresh Clinics does not offer any specific uptime guarantee or Service Level Agreement for such FC Services. It is your responsibility to have alternative arrangements in place between Licensed Professionals and Med Spas for the treatment of Patients in case of any such suspension of such FC Services. 

6.  FEES AND PRICES

6.1 Subscription Plans and Fees. As of the Revision Date set forth at the end of this TOS, Fresh Clinics may charge you a fee for the use of our Services Platform (“Subscription Fees”).  WE RESERVE THE RIGHT TO CHARGE SUBSCRIPTION FEES, AND TO OTHERWISE REVISE, MODIFY, TERMINATE OR OTHERWISE AMEND OUR OFFERED SUBSCRIPTION PLANS AT ANY TIME IN OUR SOLE DISCRETION UPON AT LEAST THIRTY (30) DAYS’ PRIOR NOTICE BY POSTING ON THE SITE. For example, we may from time to time in our sole discretion and without limitation: (i) change, introduce or eliminate (a) Subscription Fees, (b) an existing Subscription period, (c) plan renewal terms, (d) specified FC Services and/or Products, and (e) your or your User’s required qualifications; and (ii) offer trial periods, special promotional plans, bundled plans, premium services with respect to one or more types or categories of FC Services and/or Products. Subscription Fees, if any, may be assessed by Fresh Clinics and may be collected by FC Management. You agree to pay the applicable Subscription Fees, if any, for the applicable Subscription plan set forth in the applicable fee schedule (“Fee and Price Schedule”).

6.2 Non-Subscription Fees for FC Services. Apart from Subscription Fees, we may charge fees for related and other FC Services, including, without limitation:
             6.2.1 Management and administration services,
             6.2.2 Implementation services,
             6.2.3 Provision of checklists, office manuals,  forms,  and other business documents,
             6.2.4 Data throughput,
             6.2.5 Data and/or Records storage,
             6.2.6 Documentation, and
             6.2.7 Customization services, (collectively, “FC Services Fees.”) As of the Revision Date set forth at the end of this TOS, the FC Services Fees are as set forth in the applicable Fee and Price Schedule.

6.3 Facilitation Fees. We may charge fees for facilitating the rendering of Consulting Services by Licensed Professionals and the ordering of Products from their respective suppliers through the Platform Services (separately, “Facilitation Fees,” and collectively with Subscription Fees and Service Fees, “FC Fees”). The Facilitation Fees are set forth in the applicable fee schedule included in the FC MSA, FC-MS Agreement and/or Med Spa MSA, as applicable. Product Prices are shown in the Fresh Clinics online store that is part of the Platform Services. WE RESERVE THE RIGHT TO REVISE, ADD TO, TERMINATE OR OTHERWISE MODIFY ANY FC FEES AND PRICES UPON AT LEAST THIRTY (30) DAYS’ PRIOR NOTICE BY POSTING ON THE FEE AND PRICE SCHEDULE.

 6.4 Consulting Fees; Product Prices.  Fresh  Clinics   facilitates   the  ordering  of Products   and   the   provision   of   and   payment   for   certain   Consulting   Services   of   Licensed
Professionals to Med Spas related to Treatments for Patients, including, but not limited to, on-call  and   on-site   Consulting   Services,   the   supervision   of   Med   Spa   personnel   with   respect to Treatments, and related matters. Notwithstanding anything to the contrary in this Agreement, the Physicians  set  their  own  professional  Consulting  Services  fees  in  their  own independent  judgment, as reflected in the applicable Fee and Price Schedule available on the Services Terms of Service Page 13 Platform, as it may be amended from time to time (separately, “Consulting Fees” and, collectively  with any Med Spa Services Fees (“Med Spa Fees”) and FC Fees, “Fees”).

 6.5 Changes to Fees and Prices. We, on our behalf and, where applicable, on behalf of the respective Licensed Professionals, reserve the right to add, revise, reduce or eliminate, and  to otherwise modify or amend any FC Fees, prices for Products ordered through us (“Prices”), Consulting Fees and/or Med Spa Fees, at any time in our sole discretion, or as otherwise provided above for Consulting Fees, upon at least thirty (30) days’ prior notice by posting on the Site, except that Product Price changes may take effect immediately upon posting. Fresh Clinics may change from time to time, the way we calculate or determine any Fees and Prices, whether based on the type of Customer, the number of Users, the number of locations, etc., and may invoice you separately for any Fees and Prices not included in any initial or periodic invoices or payment.

6.6 Taxes. All Fees and Prices are exclusive of any and all taxes, excises, duties, fees,  assessments and charges of any kind imposed by any federal, state, local or federal government on or related to the Consulting Services, Med Spa Services, Products, the LP-C Agreement, including but not limited to sales, use, ad valorem and withholding taxes, VAT, GST, and superannuation guarantee charges, but excluding only taxes assessed on gross or net income of the applicable Customer or Fresh Clinics (collectively “Taxes”). Any such Taxes are for the account of the Licensed Professionals or the Med Spas, as applicable in accordance with applicable Law, and the respective Licensed Professionals or Med Spa hereby agrees to pay such Taxes. If Customer has tax-exempt status, Customer shall provide to Fresh Clinics written evidence of such status satisfactory to Fresh Clinics in its discretion.

 6.7 Payment. Fresh Clinics may require payment upon Customer ordering Products, Subscriptions, and/or certain Services, or, as appropriate, may invoice Customer through the Services Platform or may otherwise provide periodic invoices and/or billing statements to Customer. Payment of each invoice shall be due upon receipt. Med Spas shall pay the applicable Fees and Product Prices when due in accordance with the Agreement, the applicable Addendum or Addenda, or as may be provided on the Site. Any fees or payments hereunder not paid when due shall be subject to an administrative late payment fee equal to the lesser of 1.5 % of the unpaid amount per month or the maximum rate allowed by applicable Law.

 6.8 Payment Methods. You must have Internet access and a valid Payment Method to subscribe to or engage our Services. All prices, features, specifications, Services, and Materials are subject to change or discontinuance at any time without prior notice. Services offerings and promotions displayed on the Site are considered no longer valid once they are removed from the Site or other date we specify in the offering or elsewhere on the Site.

     6.8.1 All prices are listed in U.S. dollars and are valid until altered by us. All Fees shall be paid from an account in the U.S., in U.S. dollars. We make available to Med Spas and require  the  use  of   Point   of   Sale  (“POS”)  terminals   to  process   payments   from   Customer Clients/Patients. The POS generally accepts all major credit cards. We may accept in the future other payment methods (collectively, “Payment Methods”). We reserve the right to change the Payment Methods we accept at any time without notice.

6.9 If you want to use a different Payment Method or if there is a change in Payment Method, such as a credit card cancellation or expiration date, please contact us. If your Payment Method reaches its expiration date and you do not edit your Payment Method information or cancel your Account, you authorize us to continue billing that Payment Method or otherwise charging for our Services and any applicable Products, and you remain responsible for any uncollected amounts.

 6.10 If we are unable to process a payment using your selected Payment Method, we  may, but are under no obligation to, call or email you to ask whether you wish to use an alternate Payment Method. We may terminate your Subscription or FC Services, withhold maintenance or  upgrades to the Services Platform, and take such other action as we may deem appropriate in our discretion if we are unable to process your Payment Method and you do not provide an alternate Payment Method upon request. You agree to reimburse us for any and all costs incurred in collecting amounts owed by you to us or any of our suppliers, or incurred by us in collecting any payment, including, without limitation, attorneys’ fees and costs of collection agencies.

7.  INTELLECTUAL PROPERTY; CERTAIN DATA

7.1 Ownership of Services and Materials. You agree that, as between you and us,  except for your Customer Data and except as expressly provided otherwise in the Agreement, all
right, title and interest in and to all: (i) Services Platform, (ii) FC Services, (iii) Site content, (iv) Marks, (v) Materials, (vi) deliverables produced under an agreement or statement of work for  custom Services (the “Deliverables”), (vii) patentable ideas, inventions, and improvements; (viii) works of authorship, forms, images, audiovisual displays, text, software, graphics, and designs (ix) data, whether collected, processed, stored, aggregated, organized, compiled, combined with other data, analyzed, or transformed by us, alone or with others; and (x) trade secrets and Fresh Clinics Confidential Information, including all related patent rights, trademarks, copyrights and  trade secret rights, moral rights, sui generis database rights and all other intellectual property, proprietary rights or other rights related to intangible property (collectively, “IP”) which are used, developed, comprising, embodied in, or practiced in connection with the Site or any of our Services (collectively, “Fresh Clinics IP”) are owned by Fresh Clinics, which includes, without limitation, Fresh IP Holding Australia Pty Ltd. (“FC IP Holding”), or its suppliers or licensors, and you agree to make no claim of interest in or ownership of any Fresh Clinics IP. You acknowledge that no title to any Fresh Clinics IP is transferred to you, and that except as expressly granted to you under this TOS of Service you do not obtain any rights, express or implied, in or to use the Fresh Clinics Services, whether provided by Fresh Clinics or any of its suppliers or licensors. This Agreement does not grant Customer any intellectual property license or rights in or to the Site, FC App, or Services Platform, or any of their components.

7.2 Derivative Works and Improvements. To the extent that you create any work that is based upon one or more preexisting versions of any Fresh Clinics IP, such as an enhancement or   modification,   revision,   translation,   abridgement,  condensation,  expansion,  collection,  compilation or any other form in which such preexisting works may be recast, transformed or adapted (“Derivative Work”), as between the parties, such Derivative Works shall be owned exclusively by Fresh Clinics, and all right, title and interest in and to each such Derivative Work and its related Fresh Clinics IP shall automatically vest exclusively in Fresh Clinics. Unless the parties expressly otherwise agree in writing signed by an executive officer of FC Management, you shall assign and do hereby assign fully to Fresh Clinics or its designee all Derivative Works and other Fresh Clinics IP relating thereto (collectively, “Improvements”). You agree to assist us in every proper way to secure our rights in any Fresh Clinics IP, including any Improvements, in any and all countries, including the disclosure to us of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments which we deem necessary in order to apply for and obtain such rights. You shall also promptly execute, at our request, a written assignment of title to us for any such Fresh Clinics IP required to be assigned under this Agreement, and shall preserve any such Fresh Clinics IP as our Proprietary Information. You agree that Fresh Clinics may list you as a client or Customer of ours, may display your logo(s) toward this purpose and may publish quotations and testimonials from you or your directors, partners, officers or employees. We agree to promptly cease any such use of your name or logo(s) upon your written request.

7.3 Non-Infringement and other User Conduct.  In your use of our Site or any Product or Service, you may not: (i) infringe, misappropriate or violate any patent, trademark, trade secret, copyright, right of publicity, privacy right, or other right of anyone; (ii) attempt to or actually disrupt, interfere with, or damage the Site or any Service or any websites linked to our Site, including, without limitation, by using viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information   or other methods or  technology; (iii) attempt   to   use   another   user’s   account,  impersonate another person or entity (e.g., pretexting or spoofing); (iv) attempt to obtain unauthorized access to the Site or portions of the Site that are restricted from general access or otherwise restricted to you; (v) engage, directly or indirectly, in transmission of “spam,” chain letters, junk mail or any other type of unsolicited solicitation; (vi) collect, manually or through automated processes, information about other users (without their express consent) or other information relating to the Site or the Services; (vii) use any meta tags or other “hidden text” utilizing our name, trademarks, service marks, or trade dress (collectively “Marks”), or those of permitted suppliers or other sponsors of webpages, Services, or Products on the Site; (viii) link (including “deep linking”) to the Site without our prior express written permission specifying you by name; (ix) engage in any activity that interferes with a third party’s ability to use or enjoy the Site or Services; (x) place or attempt to place unreasonable or disproportionately large loads on the Site or Service infrastructure; or (xi) assist any third party in engaging in an activity prohibited by this TOS.

 7.4 Copyrights and Trade Secrets. You agree that, as between you or any Users and Fresh Clinics, all restricted parts of the Site, Services, and all Materials on the Site and software
used on or by the Site or any Services, and any compilations and derivatives thereof, including, but not limited to, text, design, graphics, logos, button icons, images, audio clips, digital downloads, interfaces, data compilations, software and code, and all related intellectual property rights, are: the exclusive property of Fresh Clinics, or its or their respective content suppliers; are confidential and proprietary to us; are our trade secrets, and are protected by United States and international copyright and/or trade secrets Laws. Except as expressly provided in the Terms of Service to the contrary, nothing contained on the Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of the Site, Services, Materials, or any other copyrighted works displayed or contained in the Site without our express, written consent or that of the respective copyright owner. Copyright © 2022 Fresh IP Holding Australia Pty Ltd. ALL RIGHTS RESERVED.

7.5 Trademarks.  Our   Marks,   including   but   not   necessarily   limited   to   FRESH CLINICS™ and the Fresh Clinics logo are trademarks or service marks owned by Fresh Clinics. All page headers, custom graphics, button icons, and scripts, are trademarks, trade dress, or service marks of Fresh Clinics. You hereby acknowledge that any use by any Users of such trademarks, trade dress, or service marks is for the sole benefit of Fresh Clinics, and all goodwill generated by such use shall inure to our sole benefit. All other trademarks, trade names, service marks and the like that appear on the Site, Services or Products are the property of their respective owners. You may not use any of these trademarks, trade names, trade dress, or service marks without the respective owner’s express permission. You may not frame or utilizeany framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Fresh Clinics or any Product providers or other third parties without our or their respective express written consent. You may not purchase search terms or use any Meta tags or any other “hidden text” utilizing the Fresh Clinics name or trademarks without our express written consent.

7.6 Content. Without limiting the generality of Section 7.2, certain materials may be posted, displayed or performed on the Site by you or one of your Users, including, but not limited to, text, graphics, articles, photographs, video, images, and illustrations (collectively, “Content”). You shall abide by all copyright notices, trademark rules, information, and restrictions contained in  any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. Fresh Clinics reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if we are concerned that you may have breached the immediately preceding sentence) or for no reason at all.

     7.6.1 Your Warranty Regarding Your Content and Use of FC Services. You warrant, represent and agree that you will not contribute any Content or otherwise use the FC Services in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity, including without limitation any employee or representative of Fresh Clinics; (v)contains a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program;  (vi) jeopardizes the security of your Fresh Clinics Account or anyone else’s Account (such as allowing someone else to log in to the Services as you); (vii) attempts, in any manner, to obtain the password, account, or other security information from any other user; (viii) violates the security of any computer network, or cracks any passwords or security encryption codes; (ix) runs Maillist,  Listserv, or any form of auto-responder or “spam” on the Services, or any processes that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure); (x) copies or stores any significant portion of the Content; or (xi) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.

     7.6.2 Responsibility for Content. All information publicly posted or privately  transmitted through the Services is the sole responsibility of the Customer or User from which (or  from whose account) such Content originated and Fresh Clinics will not be liable for any errors or omissions in any Content. Fresh Clinics cannot guarantee the identity of any other users with
whom you may interact in the course of using the Services. Additionally, we cannot guarantee the authenticity of any data that Customers or Users or suppliers may provide about themselves. You  acknowledge that all Content accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom. We cannot control and have no duty to take any action regarding how you or others may interpret and use the Content or what actions you or others may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services.

7.7 Personal Data.  For purposes of this Agreement, “Data Subject” means an individual who (1) uses the Products or Services provided by Fresh Clinics and/or (2) about which information is collected or generated as a part of the Products or Services; and “Personal Data,” in respect of each Data Subject means any information relating to an identified or identifiable  natural person; and an identifiable natural person is one who can be identified, directly or indirectly, by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, geographic, cultural or social identity of that natural person. Such information may be collected by Fresh Clinics’ Products and Services, the use of web-site cookies and IP addresses, and other means.

 7.8 Privacy. 
             7.8.1 Personal Data and PHI. If you receive Personal Data or PHI through the Services, you must:
             7.8.1.1 use such Personal Data and PHI only for purposes of performing your obligations under or in connection with our FC Services, or your Consulting Services or Med Spa Services, as the case may be;
             7.8.1.2 comply with all applicable Laws, including all applicable privacy, breach notification, and data security Laws;
             7.8.1.3 with respect to PHI, provide to Patients a HIPAA Notice of Privacy Practices in the form attached to this TOS as Addendum E; 
             7.8.1.4 cooperate with us and take all reasonable steps we request or require to facilitate compliance with such applicable Laws; and
             7.8.1.5 not act or fail to act in a manner that may cause or require us to be subject to a Claim that we failed to comply with any applicable Law.

    7.8.2 Notice to Us. If, with respect to any such Personal Data and PHI, you suspect or become aware of any actual or threatened or imminent data security breach, you agree:   
               7.8.2.1 to promptly notify us in writing unless we have already notified you of the same breach; 
               7.8.2.2 to reasonably cooperate with and assist us in assessing and responding to such breach; and
               7.8.2.3 that we shall control any such assessment and response, except to the extent you are required under applicable Law, each for yourself, to provide separate data breach notices.

     7.8.3 Fresh Clinics Privacy Policy. Please review the Privacy Policy for Fresh Clinics Sites, Products and Services. The Privacy Policy describes practices regarding the information that Fresh Clinics may collect from users of the Products and Services, including any Content or User Submissions. 

7.9 Security. Fresh Clinics cares about the integrity and security of your and your Users’ Personal Data and your Patients’/Med Spa’s PHI. Fresh Clinics, however, does not represent, warrant, guaranty or covenant that no unauthorized third parties will defeat our security measures or use any Personal Data or PHI for improper purposes. You and each User acknowledges that any Personal Data and PHI are being provided to or may be accessed by us at your own risk.

7.10 Customer Data.  In using our Services or Products that we provide, you may provide to us information, files, data, works of authorship, trademarks, confidential information, Patient PHI, Personal Data, and other content or materials about you, your Affiliates, Patients, Clients, or transactions or activities in which you or they are involved (collectively, “Customer  Data”). As between you and us and subject to the terms of the Agreement, including but not limited to the addenda to this TOS, Customer possesses and retains all right, title, and interest in and to Customer Data. We and you agree to treat all Customer Data in accordance with our Privacy Policy and other Terms of Service, the NPP and any applicable BAA. Subject to the Agreement, you grant to us and our successors and assigns, and have ensured that any third party owners of IP rights in Customer Data have granted to us and our successors and assigns, a non-exclusive, worldwide, irrevocable, perpetual license to use, store, host, copy, modify, display, publish, distribute, and transmit Customer Data for the purposes of: this Agreement or any other Fresh Clinics agreement with you; providing, supporting, maintaining, facilitating, and/or improving the Services or developing potential new or different services; conducting research; regulatory compliance;   and any of our other legitimate business management, administrative, and development activities. Fresh Clinics works with other companies that help Fresh Clinics provide Products to you, such as suppliers, freight carriers and credit card processing companies, and Fresh Clinics may have to share certain information with these companies for this purpose. Their use of your information will be subject to their respective privacy policies, which may be different from Fresh Clinics’ Privacy Policy.

7.11 Aggregated and De-Identified Data.  Notwithstanding anything to the contrary herein, Fresh Clinics may use, reproduce, sell, publicize, or otherwise exploit Aggregated Data and De-Identified Data as may be permitted by applicable Law, including, without limitation, to  undertake   quality   assurance   and   comparative   analyses   that   involve   the   protected health information of multiple Licensed Professionals and/or Med Spas. As between you and us, we shall retain all rights, title and interest in the Aggregated Data and De-Identified Data developed or created by us. For purposes of this Agreement, “Aggregated Data” refers to summaries of  Customer Data, or of data that includes Customer Data, that do not include Personal Data or the names or addresses of Customer, and any of its Users or Patients. “De-Identified Data” refers to Customer Data with the following removed: Personal Data and the names and addresses of Customer and any of its Users.

7.12 User Submissions. The Content may include information that you and other users publish relating to the Services (collectively, “User Submissions”), which we may use to provide, maintain and improve the Services. Subject to the terms of this Agreement, Users may also post feedback, comments, questions, or other information on the Sites. Some User Submissions may be visible to others. For example, the Service may allow you to upload, post, or otherwise share photographic content. You are solely responsible for all User Submissions that you upload, post, email, transmit, or otherwise disseminate using or in connection with the Services, or that you contribute in any manner to the Services; you represent and warrant that you have all rights necessary to do so, in the manner in which you contribute it. You hereby grant to Fresh Clinics an irrevocable, perpetual, nonexclusive, royalty-free and fully paid, worldwide, and transferable license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Submissions, including all associated IP, and to grant sub-licenses of the foregoing rights, for the purposes of including your User Submissions on the Service, and otherwise in connection with the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. For clarity, the foregoing license grant to Fresh Clinics does not affect your ownership of or right to grant additional (other than exclusive) licenses to the material in your User Submissions, unless otherwise agreed in writing.

 7.13 Feedback. You and any Users may choose, and Fresh Clinics may invite you, to submit comments, suggestions, or ideas about the Products or Services, including how to improve
the Products or Services (“Ideas”). By submitting any Ideas, you and your Users agree that your and their submissions are voluntary, gratuitous, unsolicited, and without restriction and will not place Fresh Clinics under any fiduciary or other obligation. Fresh Clinics may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you or any User. You also agree that Fresh Clinics does not waive any rights touse similar or related ideas previously known to Fresh Clinics, developed by its employees, or obtained from other sources.

7.14 Risk of Exposure. You recognize and agree that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Services Platform,  you assume such risks. Fresh Clinics offers no representation, warranty, or guarantee that Customer Data, Content, Personal Data, and/or or User Submissions will not be exposed or disclosed through errors or the actions of third parties.

7.15 Data Accuracy.  Fresh Clinics shall have no responsibility or liability for the accuracy of data uploaded to the Site by any Customer or processed by the Services Platform, including without limitation Customer Data, Personal Data, PHI, and any other data uploaded by Users.

7.16 Data Deletion. Fresh Clinics may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more. Notwithstanding the  foregoing, we will retain a copy of Patient Personal Data and PHI (“Patient Records”) until the earlier of (i) when we provide you with a copy of such Patient Records, or (ii) a period of three (3) years from termination of this Agreement or, if later, the minimum period required by applicable Law, after which time we may in our discretion delete or destroy such Patient Records. Prior to such time, we may agree to provide at our standard rates access to or copies of Patient Records as may reasonably be required for, among other things:                                                       

               7.16.1 your provision of services (excluding our Services) to your Patient;
               7.16.2 the purpose of defending a Claim against you or us;
               7.16.3 quality assurance and quality improvement purposes; and
               7.16.4 as may be required by applicable Law.

8.  CONFIDENTIAL INFORMATION

8.1 Confidential Information. “Confidential Information” means any non-public  information, data, ideas, trade secrets or know-how of Fresh Clinics, including, without limitation, relating to any: Products, Services, Materials, Documentation, vendors, current or identified prospective customers, employees, suppliers, vendors, Patients, fees and pricing (including but  not limited to any fee and pricing schedules), marketing, product plans, software, developments, Fresh Clinics IP, Aggregated Data, De-Identified Data, research, lists, collections or compilations, processes, designs, drawings, engineering, hardware specifications, financial information, or any other information or ideas that would be reasonably understood under the circumstances to be confidential or proprietary at the time of disclosure, and this TOS, the Addenda, and other parts of the   Agreement.   Notwithstanding   the   foregoing,   Confidential   Information   does   not include information that: (i) is in Customer’s possession at the time of disclosure by Fresh Clinics; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Fresh Clinics. 

8.2 Nondisclosure. You and your Users shall not use Confidential Information for any purpose other than for internal business purposes in using the FC Services and Products in
accordance with the Agreement (the “Purpose”). You and your Users: (i) shall not disclose an Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Section 8; and (ii) shall not disclose  Confidential Information to any other third party without Fresh Clinics’ prior written consent. Without limiting the generality of the foregoing, you and your Users shall protect all Confidential Information with the same degree of care you use to protect your own confidential information of similar nature and importance, but with no less than reasonable care. You and your Users shall promptly notify Fresh Clinics in writing of any misuse or misappropriation of Confidential Information that comes to your or any of their attention. Notwithstanding the foregoing, you and your Users may disclose Confidential Information as required by applicable Law or by proper legal or governmental authority. You and your Users shall give Fresh Clinics prompt written notice of any such legal or governmental demand and reasonably cooperate with us in any effort to seek a protective order or otherwise to contest such required disclosure, at our expense. 

 8.3 Injunction. You and your Users agree that a breach of this Section 8 would cause Fresh Clinics irreparable injury, for which monetary damages would not provide adequate  compensation, and that in addition to any other remedy, Fresh Clinics will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

 8.4 Termination and Return. Upon our request or any termination of this Agreement, Customer shall immediately return all copies of Confidential Information to Fresh Clinics or certify, in writing, the destruction thereof.

8.5 Retention of Rights. This Section 8 does not transfer ownership of Confidential Information or grant a license thereto. Fresh Clinics will retain all right, title, and interest in and to all Confidential Information.

8.6 Defend Trade Secrets Act.  Notwithstanding the other provisions of this Agreement, pursuant to the federal Defend Trade Secrets Act of 2016, you and your Users acknowledge that an individual shall not have criminal or civil liability under any Federal or State trade secret law for the disclosure of a trade secret that (i) is made (a) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney and (b) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, if an individual files a lawsuit for retaliation by Fresh Clinics for reporting a suspected violation of law, the individual may disclose the trade secret to the individual’s attorney and may use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal and (B) does not disclose the trade secret, except pursuant to court order.