1. In these General Terms and Conditions the following expressions shall have the meaning as set out next to them:
App means the mobile app developed by SkinVision that, through an online assessment, allows health professionals to determine non-natural growth of pigmented lesions and helps App-users find suspicious lesions on their skin that they can track for changes in a personal gallery. The App enables App-users to find health professional in their area and allows the App-users to connect with them;
App-Users means the users of the App, who can upload images of lesions on their skin from their smart phones to the SkinVision Pro Platform;
Cooperation Agreement means the cooperation agreement between the Parties, which consists of the Agreement, these General Terms and Conditions and the appendices A, B and C to the Cooperation Agreement;
Health professional means dermatologists or general practitioners working in Partners practice or clinic.
General Terms and Conditions means these general terms and conditions of SkinVision;
Go-Live Date means the date for the Software and the System of the SkinVision Pro Platform to Go Live;
Parties means SkinVision and Partner and Party means any of them;
Partner has the meaning as defined under the heading "Parties" in the Contract Details, which Partner runs a dermatology practice, dermatology clinic or general practice;
SkinVision has the meaning as defined under the heading "Parties" in the Cooperation Agreement.
SkinVision Pro Platform means the mobile and browser platform where Partner will have access to, to provide the services.
2. These General Terms and Conditions apply to and form an integral part of the Cooperation Agreement, unless and to the extent SkinVision explicitly agrees otherwise in writing.
3. Any terms and conditions set forth in any document(s) issued by Partner either before or after issuance of any document by SkinVision setting forth or referring to these terms and conditions are hereby explicitly rejected and disregarded by SkinVision, and any such terms shall be wholly inapplicable to any contract or agreement between SkinVision and Partner and shall not be binding in any way on SkinVision.
4. SkinVision shall provide Partner with a username with which it will be given general access to the SkinVision Pro Platform.
5. Partner acknowledges that the pictures in App-User's gallery are owned by the App-User and can be accessed by the App-User with a personalized user name and password. Through the App the App-User can authorize the Partner to get access to his personal gallery. Upon permission of an App-User, SkinVision shall provide Partner, i.e. the health professional treating the App-User, with personal log-in data giving access to such App-User's personal gallery.
6. Partner's name and/or of the health professionals working for Partner, Partner's address and a link to Partner's website will be included in the App and shall pop up every time an App-User seeks a health professional within the geographical area as described in Appendix C.
7. SkinVision shall facilitate that Partner and App-users can communicate online through SkinVision Pro Platform.
8. In the event that individual health professionals will be given access to SkinVision Pro Platform and any such health professional leaves Partner's practice, Partner shall notify SkinVision forthwith and SkinVision shall subsequently unsubscribe such health professional.
9. SkinVision will issue a credit invoice on a monthly basis in the first seven (7) working days of each month. SkinVision shall pay to Partner 70% (seventy percent) of the nett fee (which is exclusive of VAT and/or other sales taxes) for the online review (tele-dermatology) services that Partner has performed.
10. SkinVision shall pay the credit invoices within ten (10) working days.
11. To each credit invoice, SkinVision will enclose an appendix explaining for each App-User: (i) the App-User’s name, (ii) the medical service provided on mobile and/or browser platform, quantity of services and the related date, (iii) the fee charged by the Partner on the platform for that specific medical service (iv) the result of the total fee to be paid to Partner.
12. All funds payable to Partner will be paid by SkinVision by wire transfer, to the bank designated from time to time by Partner, or such other address designated from time to time by SkinVision.
13. Payments to Partner shall be made in Euros unless another currency is agreed upon between Parties.
14. SkinVision will pay all taxes, duties, bank or wiring fees, or other charges of any kind, other than withholding taxes, if any, due on the payments to be made to Partner on, without any deduction thereof before payment to Partner.
15. In the event that any amounts payable by Partner to SkinVision are subject to withholding taxes that Partner is required to deduct from such payments, Partner will promptly provide SkinVision with a copy of the withholding tax receipts subsequent to the payment of such taxes to the applicable government authorities. Partner will be responsible for and will hold SkinVision harmless against any penalties, interest and expenses incurred by or assessed against SkinVision as a result of Partner’s failure either to withhold such taxes or to remit them to the appropriate taxing authority when due.
16. SkinVision Pro provides tools to help Partner to operate their practices more efficiently and to attract new patients. Partner acknowledges that SkinVision is the sole and exclusive owner of the SkinVision App, the SkinVision Pro Platform and underlying concept, knowhow and all intellectual property and other rights therein and all goodwill pertaining thereto.
17. SkinVision will use its best efforts to further develop the App, the SkinVision Pro Platform and underlying concept. In relation thereto Partner will cooperate fully, during the term of the Cooperation Agreement, in confirming, perfecting, preserving, and enforcing SkinVision’s rights in the App, the SkinVision Pro Platform and underlying concept and knowhow.
18. Unless otherwise agreed upon by the Parties, Partner agrees to assign and hereby assigns to SkinVision all acquired rights in the App, the SkinVision Pro Platform and underlying concept and knowhow, resulting from the exercise of any rights provided under the Cooperation Agreement.
19. Partner will not, before or after termination or expiration of the Cooperation Agreement, register or apply to register any of intellectual property, or any materials, trademark or logo confusingly similar to those of SkinVision, anywhere in the world.
20. Partner will conduct its business operations in accordance with all applicable laws and regulations.
21. Partner ensures that the health professionals working at Partners clinic obtain and maintain the licence necessary to perform the medical services.
22. Each Party agrees to safeguard and maintain the reputation and prestige of the other Party, the App and services provided by the other Party and will not do anything that would tarnish the image of or adversely impact the value, reputation or goodwill associated with the same.
SkinVision will use its best efforts to provide Partner with guidance and directions, which will set out in which manner Partner should use SkinVision Pro Platform.
23. SkinVision has the right to conduct, evaluate and distribute from time-to-time satisfaction reviews of Partner’s services to App-users in connection with the use of the App and SkinVision Pro Platform, without interfering Partner’s doctor-patient relationship whatsoever.
24. To maintain the quality and consistency of SkinVision's solution, the use of promotional materials by Partner through local media requires SkinVision’s prior written approval.
25. Partner is entitled to mail, e-mail or fax promotional materials to its patients and prospects. Partner shall however not send unsolicited bulk emails generally referred to as spam to promote SkinVision's concept.
26. Parties both acknowledge that electronic communication is not appropriate for all health issues, particularly those of an urgent nature. All content and information available on or through the App or SkinVision Pro Platform are for informational purposes only. The content is not intended to be a substitute for professional medical advice, diagnosis or treatment. SkinVision is not responsible or liable for any advice, course of treatment, diagnosis or any other information, that is obtained through the App or SkinVision Pro Platform.
27. SkinVision will use its best efforts to provide its services to Partner and to enable Partner to make use of the SkinVision Pro Platform. Partner acknowledges and agrees that the services and any information or content contained on or provided by SkinVision through the App or the SkinVision Pro Platform is provided on an "as is" basis. SkinVision does not make any express or implied warranties, representations or endorsements whatsoever. In addition, SkinVision does not guarantee that the use of the services will be free from technological difficulties. Partner acknowledges and agrees that it is responsible for implementing sufficient procedures and checkpoints to satisfy its particular requirements for accuracy of data input and output.
28. SkinVision shall not be liable for any damages in excess of the amounts paid to SkinVision under this Cooperation Agreement in the year in which the liability occurs, in each case for any claim relating to App, SkinVision Pro Platform and underlying concept and knowhow, whether in contract, tort or otherwise, unless such damages are a result of or arising out of any negligent or wilful act or omission of SkinVision.
29. Partner, at Partners expense, shall maintain adequate liability insurance during the continuance of this contract, insuring Partner against all claims for injury or damage.
30. The security of any data submitted via the App or the SkinVision Pro Platform of SkinVision, is very important to SkinVision. SkinVision uses encryption technology, and SkinVision constantly reviews its security practices to help ensure that data is maintained securely. However, no system can perfectly guard against risks of intentional intrusion or inadvertent disclosure of information sent to SkinVision. Moreover, when information is transmitted via the Internet, the information will be transmitted over a medium that is beyond SkinVision's control, and therefore the security of the transmission may be compromised before it reaches SkinVision. Accordingly, SkinVision makes no guarantee as to confidentiality or security. In addition, Partner hereby expressly and solely assumes the risk of any unauthorized disclosure or intentional interruption or corruption of data or other information transmitted in connection with the use of SkinVision's services. Partner should keep its user name and password confidential. Failure to do so may also compromise the confidentiality of information, which will be for the risk of Partner.
31. SkinVision intends to improve the relationship between health professionals and their patients, but does not take responsibility for the services provided by the Partner to the App-User. Partner will indemnify and defend SkinVision and its officers, directors, managers and personnel, and hold them harmless against all claims, demands, losses, damages, costs, suits, judgments, penalties, expenses and liabilities of any kind for which they are held liable, or which they incur in any litigation or proceeding as a result of or arising out of or in connection with: (a) the treatment or diagnosis by Partner or its health professionals or its general practitioners of any App-user either or not partly or wholly based on information obtained from SkinVision; (b) a breach of this Cooperation Agreement by Partner; (c) Partner’s taxes, liabilities, costs or expenses of its business; (d) any negligent or wilful act or omission of Partner, its officers, directors, managers and personnel; or (e) the use of the App and/or SkinVision Pro Platform in a manner not authorized by the Cooperation Agreement.
32. The term of the Cooperation Agreement is set out in the contract details.
33. This agreement will automatically renew at the end of the term as mentioned in the contract details, for a further term of 1 year unless either party gives the other written notice of termination at least 60 days prior to the end of the relevant term.
34. Each Party may terminate this Cooperation Agreement by giving 60 day's prior written notice
35. The Cooperation Agreement may be terminated with immediate effect by giving written notice to the other Party if any of the following events occurs with respect to a Party: (a) it has ceased to exist or has been dissolved or an attachment in execution is made on all or an important part of its assets; (b) it has been declared bankrupt or a petition for bankruptcy has been filed or is expected to be filed, or it has been granted suspension of payments on a temporary basis or otherwise; or (c) its business has been discontinued.
36. Both parties shall, by written notice and with immediate effect, be entitled to terminate this Cooperation Agreement in whole or in part if either one of the parties is guilty of any misconduct and/or other conduct prejudicial to the interests of one of the Parties or to the efficient performance of the Services.
37. Neither Party shall be required to pay any fees, expenses, costs, damages or other compensation to the other Party upon termination or rescission of the Cooperation Agreement.
38. Any provision expressed to survive termination, rescission or expiry, including but not limited to, the provisions related to Ownership and Use of SkinVision's App, platform and concept, Confidential Information, Post termination provisions, Administration SkinVision, Waiver, Invalidity, Dispute resolutions and Applicable Law and this provision, and those provisions necessary for interpretation or enforcement of the Cooperation Agreement shall survive termination, rescission or expiration of the Cooperation Agreement.
39. In the event that the Cooperation Agreements is terminated SkinVision shall subsequently withdrawal Partners account and cancel the access to the SkinVision Pro Platform.
40. During the term of the Cooperation Agreement and for a period of 5 years after the Cooperation Agreement has been terminated, each Party shall treat as strictly confidential all information received or obtained which relates to the business and affairs of the other Party and shall prevent any disclosure of confidential information to third parties.
41. The obligation to maintain the confidentiality of information shall not extend to information in the public domain at the time of disclosure and/or information that is required to be disclosed by law or by court order.
42. Each Party is required at its own initiative to return to the other Party, or at the other Party’s request to destroy all confidential information disclosed to it by the other Party and to confirm in writing promptly when it has complied with this obligation.
43. In the event of a breach by a Party of its confidentially obligations, that Party shall forfeit to the other Party an immediately payable penalty in the amount of EUR 50,000 and of EUR 2,000 for each day that such breach continues, without prejudice to the right of the other Party to claim full compensation for damages incurred by it as a result of the breach.
44. Parties agree that the penalty clause as set out in provision 43 is valid and enforceable and that the amount of the penalty is reasonable in relation to the possible consequences to a Party of a breach of its confidentiality obligations.
45. Immediately after the termination of the Cooperation Agreement Partner shall cease the use of the App, the SkinVision Pro Platform and underlying concept and knowhow and return to SkinVision all documents, materials, data and other property, including but not limited to promotional materials, data sheets and any copies of any such documents, materials, data and other property received from SkinVision pursuant to or in connection with the Cooperation Agreement.
46. In the event of a breach by Partner of its post termination obligations, Partner shall forfeit to SkinVision an immediately payable penalty in the amount of EUR 50,000 and of EUR 2,000 for each day that such breach continues, without prejudice to the right of SkinVision to claim full compensation for damages incurred by it as a result of the breach.
47. Parties agree that the penalty clause as set out in provision 46 is valid and enforceable and that the amount of the penalty is reasonable in relation to the possible consequences to a Party of a breach of the post termination obligations.
48. Neither Party may sublicense, transfer or encumber any of its rights or obligations under this Cooperation Agreement without the prior written approval of the other Party. SkinVision may however transfer (any of) its rights and obligations under the Cooperation Agreement (i) to another SkinVision group member, (ii) to a third party in the context of a merger, takeover, acquisition or actual or legal split-off, (iii) to a third party in the context of outsourcing. In advance of any such transfer by SkinVision Partner hereby provides its cooperation within the meaning of article 6:159 of the Dutch Civil Code to such transfer. SkinVision will inform Partner of such transfer.
49. Each Party shall bear its own costs related to the conclusion of this Cooperation Agreement.
50. In order to avoid any misunderstanding and conflicts, the Parties agree that the administration of SkinVision shall be deemed to provide conclusive evidence of the fulfilment of the obligations of each Party pursuant to this Cooperation Agreement, unless Partner provides evidence to the contrary.
51. Partner and its representatives shall at all times conform to SkinVision’s Third Party Compliance Codex applicable from time to time. Any failure to comply will constitute a material breach of this Agreement.
52. The Cooperation Agreement and all agreements relating thereto or resulting there from shall be governed by the laws of the Netherlands.
53. All disputes, controversies or claims arising out of or in connection with the Cooperation Agreement or any further agreements relating thereto or resulting there from, or the breach, termination or invalidity thereof, will be finally resolved by arbitration in accordance with the procedures set forth in this provision and the Rules of Arbitration of the International Chamber of Commerce presently in force. The place of arbitration will be in Amsterdam, The Netherlands. The English language will be used in the arbitration proceedings.
54. No delay, neglect or forbearance on the part of either Party in enforcing against the other any term or condition of the Cooperation Agreement shall be, or deemed to be, a waiver or in any way prejudice any right of that Party under the Cooperation Agreement. The existence of a waiver may only be proven with a written document signed by legal representatives of the relevant Party referencing the provision(s) waived. A waiver by any Party in relation to a specific issue shall not constitute a waiver for similar issues arising in the future, unless such waiver for future issues is explicitly indicated.
55. All of SkinVision's obligations set out in the Cooperation Agreement shall be interpreted as obligations to achieve a result (in Dutch: “resultaatsverplichtingen”), except to the extent explicitly indicated as obligations of effort (in Dutch: “inspanningsverplichtingen”).
56. The invalidity, illegality or lack of enforceability of any provision of the Cooperation Agreement shall not affect the validity, legality or enforceability of the remaining provisions of the Cooperation Agreement. The affected provision shall be deemed replaced by such valid and enforceable provision, which comes closest to the original intention of Parties.
57. The Cooperation Agreement may not be modified or amended other than by agreement between the Parties in writing.
58. If a provision sets out a specific remedy or penalty, in addition thereto a Party may invoke any other rights or remedies set out in the Cooperation Agreement or applicable law, including any rights to claim damages or specific performance. If a penalty applies, any damages can only be claimed to the extent these exceed such penalty.
59. These General Terms and Conditions are drawn up in the English language on the express condition that all words, terms and expressions used herein shall be construed and interpreted in accordance with Dutch law.