General Terms and Conditions
LICENSE AND SPACE SHARING AGREEMENT
This LICENSE AND SPACE SHARING AGREEMENT (this “Agreement’) is by and between you (“Occupant”) and Vansanity, Inc and all its affiliates including but not limited to Vansanity Medical Services (“VMS”) and all its affiliates including but not limited to Vansanity Medical Services (“VMS”) . (“Licensor”) and is effective as of the date You electronically indicate your acceptance of this Agreement (the “Effective Date”).
IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN INDIVIDUAL, THE TERM “OCCUPANT” REFERS TO YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “OCCUPANT” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT.
W I T N E S S E T H
WHEREAS, pursuant to a lease (the “Master Lease”) with any property owners where the Licensor leases property (the “Landlord”), the ground lessee of the Retail Units, located in the “Building” as defined in such Master Deeds, and situated at various Vansanity locations (the “Property”), Licensor, as tenant, has the right to use, occupy and license to others certain medical office space in the Building (the “Premises”) for only those medical office and medical spa purposes specified in Exhibit A attached hereto (the “Permitted Treatments”);
WHEREAS, Licensor has agreed to grant Occupant (i) the right to use medical rooms in the Premises (the “Treatment Room”), identified as room(s) delineated by numbers or letters, together with the right to use certain equipment provided by Licensor (the “Equipment”) and certain other rights, as more particularly described herein, and (ii) the right to shared use of certain common areas servicing the Premises as shown at the site’s room map found on www.vansanity.com (the “Shared Areas”), upon the terms and as more particularly set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Use and Occupancy of Premises, Shared Areas and Treatment Rooms.
Subject to the provisions of this Agreement and by means of Licensor’s online reservation system (and any rules, regulations and agreements contained therein), Occupant shall have the right to reserve, subject to availability, (i) the use of Treatment Rooms, for Permitted Treatments only and no other uses or purposes, for periods of fifty (50) minutes per reservation period and (ii) any of the Equipment provided by Licensor. In the event that Occupant reserves consecutive reservation periods, Occupant may use its reserved Treatment Room for the ten (10) minutes in between the consecutive reservation periods. Each fifty (50) minute period of time for which Occupant has reserved a Treatment Room shall be referred to as the “Reservation Period.” For the period
from one (1) hour before until one (1) hour after the end of Occupant’s Reservation Period (the “Term”), Occupant shall be entitled to access the Premises and to use, in common with other occupants and Licensor, the Shared Areas solely for the purposes for which they are designed, such as for meeting patients in the waiting area. During the Occupant’s Reservation Period, Occupant may use the Treatment Room and the Equipment reserved by Occupant to provide to Occupant’s patients the Permitted Treatments for which the Treatment Room was reserved. The Premises, Shared Areas and Treatment Rooms are being made available for Occupant’s use in their “AS IS” condition, without representation or warranty by Licensor and Occupant agrees that Licensor has no obligation to perform any alterations or improvements to the Premises, Shared Areas or Treatment Rooms to prepare or improve the same for Occupant’s use during the Term (as hereinafter defined). In addition, Occupant shall have the right, during the Term, to use for access to the Premises, on a non-exclusive basis, the common access areas serving the Building (including, the driveways and sidewalks of the Building) and the entrances and exits serving the Premises (the “Common Areas”). In all events, Occupant shall vacate the Premises no later than 9:00 PM each day. Occupant shall comply with Licensor’s security and access procedures at all times. Licensor and Occupant intend and agree that the arrangement between them under this Agreement shall be a space sharing arrangement only and shall not create a lease, partnership or joint venture. The businesses of each party to this Agreement shall be separate and apart from business conducted by each other party. To that end, each party shall have and maintain its own employees. Neither party is an agent, employee or representative of the other party. Except as set forth in this Agreement, Occupant and Licensor shall each supply their own independent computer equipment and shall not be entitled to use one another’s computer equipment. Licensor shall allow Occupant free access to Licensor’s Wi-Fi and provide one printer for Occupant’s use. Occupant shall have the right to use Licensor’s copier. Except as set forth in this Agreement, in no event shall Occupant be connected to Licensor’s network drives or computer system in any way.
Licensor shall provide an on-site receptionist for the Premises with whom patients may check-in. The receptionist shall inform Occupant when Occupant’s patients have arrived.
Occupant shall use the Premises and all Treatment Rooms, and handle, store and dispose of any medical waste or other regulated substances and materials, in accordance with all applicable laws, rules, regulations and codes including, without limitation, all health codes, and the rules, regulations and procedures available at https://vansanity.com (the “Rules”), which Rules may be revised by Licensor from time to time.
Section 2. Equipment and Supplies.
Licensor shall make available to Occupant for reservation for use in Treatment Rooms the Equipment reserved by Occupant. Occupant shall use the Equipment (i) in compliance with all applicable laws, rules, regulations and codes including, without limitation, all health codes and all rules and regulations of the Landlord, (ii) solely for the purpose for which it was designed, and (iii) at Occupant’s sole risk. Licensor shall have no responsibility or liability in connection with Occupant’s use of the Equipment and Licensor makes no representation or warranty with respect to the Equipment whatsoever.
In addition to the Shared Areas, Treatment Rooms and Equipment, Licensor shall make available to Occupant the following medical supplies: disposable razors; gauze; procedure chair; stool; mayo stand; stand liner; paper gown; alcohol; hospital grade disinfectant wipes; handheld mirror; sharps container; table paper; surgical gloves; drapes; bandages; white pencils; tongue depressors; ultrasound gel; cold packs; hot packs; Post-peel moisturizer; cotton swabs; and other related medical supplies (“Medical Supplies”) for use in Treatment Rooms.
Section 3. Occupancy Charges.
Occupant shall pay to Licensor fees (the “Charges”) for (i) the use of the Premises, (ii) equipment reserved and (iii) consumables used by Occupant. All Charges shall be paid through the Vansanity App. Unless special arrangements are made, through accepted payment methods (e.g. PayPal, credit card, etc.), or to such other address or by such other method as may be specified by Licensor. All charges will be non-refundable. However, if the Occupant notifies Licensor at least 24 hours prior to reservation, then the Licensor, at their sole discretion, may provide room or money credit to the Occupant’s account.
Section 4. Use.
Subject to compliance with all applicable laws, rules, regulations, policies, guidance, and standards of practice, including, without limitation, all health codes and all applicable medical care regulations, Occupant shall use and occupy the Premises, the Shared Areas and the Treatment Rooms as contemplated hereby only to furnish Permitted Treatments in accordance with applicable law and the Rules. Occupant shall have access to the Premises and the Shared Areas as set forth in Section 1.
Occupant shall be responsible to pay all Licensor’s costs and expenses for any repair or maintenance of the interior area of the Premises which is necessary as a result of Occupant’s use, misuse, negligence or willful misconduct.
Occupant shall not make any alterations, improvements or installations in or to the Premises.
Section 5. Utilities.
Licensor shall pay the costs of the utilities currently available to the Premises.
Section 6. Insurance.
During the term of this Agreement the Occupant shall ensure maintenance on behalf of itself and its Licensed Personnel customary malpractice covering all acts and omissions of the Occupant and then occurring during the term with minimum levels of $1,000,000.00 per occurrence/$3,000,000.00 in the annual aggregate, including ensuring purchase of tail coverage/extended/nose coverage endorsements as necessary to effectuate same. Proof of such continuing coverage shall be provided to Licensor at all times promptly upon request and upon execution of this Agreement. Licensor shall be provided prompt notice of any pending known or actual modification, cancellation or expiration of any such coverage. Licensor will be added as additional/co-insured at Occupant’s expense, to the extent possible, on such policies.
Section 7. Representations, Warranties, and Covenants.
Occupant hereby represents and warrants to Licensor as follows: If Occupant is not a natural person, Occupant is duly organized, validly existing and in good standing under the laws of the Commonwealth of Massachusetts or the State of Texas.
Occupant and its owner(s) is (are) duly licensed, registered and qualified under all applicable laws and regulations of the Commonwealth of Massachusetts or the State of Texas to furnish the Permitted Treatments for which the Premises are reserved hereunder, and to operate the Equipment.
Occupant shall ensure that all personnel employed or contracted by Occupant to furnish the Permitted Treatments on the Premises, assist in the furnishing of such services, oversee the furnishing of such treatments, or operate the Equipment are appropriately supervised with respect to the provision of services to patients in accordance with applicable law.
Occupant shall ensure that Occupant and each of its licensed personnel shall, to the extent applicable to the Permitted Treatments for which the Premises are reserved hereunder: (i) have and maintain a valid and unrestricted license to practice such Permitted Treatment in the Commonwealth of Massachusetts or the State of Texas; and (ii) comply with, be controlled and governed by, and otherwise provide the Permitted Treatments in accordance with, applicable law and the ethics and standards of care of the community in which the Occupant is located (including compliance with any Laws requiring certain services to be provided by, or under the direction of, certain medical professionals, such as physicians or nurse practitioners).
All medical records, charts and vital records pertaining to the Occupant’s patients, shall be and remain the property of, and shall be maintained by and under the control of, the Occupant.
Neither Occupant nor any of its owners or personnel and agents are or have been sanctioned or investigated by any State professional licensing board, accrediting organization, or the Massachusetts Department of Public Health, or the Texas Department Health and Human Services and there is no pending investigation or proceeding that could result in Occupant being sanctioned by such an entities.
Occupant has and shall maintain the insurance required pursuant to Section 6 above and provide valid insurance information as requested in Vansanity App.
Section 8. Protected Health Information. The terms and conditions of the business associate agreement available in Exhibit B below.
Section 9. Assignment or Subletting. Occupant shall have no right to assign, sublet, license or otherwise encumber its rights under this Agreement or the use of the Premises.
Section 10. Indemnity and Waiver. Occupant agrees to indemnify and save harmless Licensor and Landlord from and against any and all claims, liabilities, suits, judgments, awards, damages, losses, fines, penalties, costs and expenses, including without limitation reasonable attorneys’ fees, that Licensor or Landlord may suffer, incur or be liable for by reason of or arising out of the breach by Occupant or Occupant’s employees, agents, or patients of any of the duties, obligations, liabilities or covenants applicable hereunder or relating to its occupancy or use of the Premises or Equipment, but in all cases, except to the extent arising from or caused by the willful misconduct or negligence of Licensor or any of its agents, employees or contractors or invitees. To the extent permitted by law, Occupant releases the Licensor and Landlord from, and waives all claims for, damage to person or property sustained by the Occupant or any occupant of the Premises resulting directly or indirectly from any existing or future condition, defect, matter or thing in and about the Premises or the Property or any part of either or any equipment or appurtenance therein, or resulting from any accident in or about the Premises or the Property, or resulting directly or indirectly from any act or neglect of any tenant or occupant or licensee of the Property or of any other person, including Licensor’s or Landlord’s agents and servants, except to the extent caused by the willful and wrongful act of Licensor. Occupant hereby waives any consequential damages, compensation or claims for inconvenience or loss of business, rents, or profits as a result of such injury or damage, whether or not caused by the willful or wrongful act of any of the indemnified parties. If any such damage, whether to the Premises or the Property or any part of either, or whether to Licensor or Landlord or to other tenants in the Property, results from any act or neglect of Occupant, its employees, servants, agents, contractors, invitees or customers or patients, Occupant shall be liable therefor and Licensor may, at Licensor’s option, repair such damage and Occupant shall, upon demand by Licensor, reimburse Licensor within ten (10) days of demand for the total cost of such repairs.
OCCUPANT EXPRESSLY AGREES THAT ITS USE OF THE PREMISES, EQUIPMENT, AND ANY SUPPLIES OR SERVICES FURNISHED BY LICENSOR PURSUANT TO THIS AGREEMENT IS AT ITS SOLE RISK AND THAT THE PREMISES, EQUIPMENT, SUPPLIES, AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND FROM LICENSOR OR ITS SUPPLIERS OR LICENSORS. WITHOUT LIMITING ANY OTHER PROVISION UNDER THIS AGREEMENT, LICENSOR, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, SHALL HAVE NO RESPONSIBILITY FOR OR LIABILITY RELATED TO THE PREMISES, EQUIPMENT, AND ANY SUPPLIES OR SERVICES MADE AVAILABLE BY LICENSOR HEREUNDER. LICENSOR, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, FURTHER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR, ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS, DOES NOT GUARANTEE THAT ANY EQUIPMENT, SUPPLIES OR SERVICES MADE AVAILABLE BY LICENSOR WILL MEET ALL OF OCCUPANT’S REQUIREMENTS.
Section 11. Defaults. Each of the following shall be a default of Occupant: Occupant fails to make any payment of the Occupancy Charge or any other payment Occupant is required to make when such payment is due and such failure shall continue for five (5) days after written notice from Licensor (“Monetary Default”).
Occupant fails to comply with any term, provision or covenant of this Agreement or fails to perform any obligation of Occupant pursuant to this Agreement other than a Monetary Default, and that failure continues for ten (10) days after written notice from Licensor. Any statement, representation or warranty made by Occupant provides to have been false or misleading in any material respect.
Section 12. Remedies. In the event of a default by Occupant, Licensor shall have the power and right: To enforce any remedies generally available at law or in equity to a landlord upon a default by tenant; To obtain injunctive relief against any continuing default by Occupant; To maintain this Agreement in effect and collect the amounts due hereunder; To terminate this Agreement upon notice to Occupant; and To recover exclusive possession of the Occupant Premises under the provisions offered by law regulating proceedings between landlords and tenants, or by such other legal process as may at that time be in operation in like cases. Occupant nevertheless agrees to remain liable for any and all damage, deficiency or loss which Licensor may sustain by reason of the exercise of such remedies.
Section 13. Limitation of Liability. Occupant agrees to use and occupy the Premises and to use such other portions of the Building as Occupant is herein given the right to use at Occupant’s own risk. Any goods, property or personal effects stored or placed in or about the Premises shall be at the sole risk of Occupant, and neither Licensor, Landlord nor Licensor’s insurers shall in any manner be held responsible therefore, accepting loss or damages caused by the negligent or willful acts of the Licensor, its agents, invitees, employees, or contractors. Licensor shall not be responsible or liable to Occupant, or to those claiming by, through or under Occupant, for any loss or damage that may be occasioned by or through the acts or omissions of Licensor or persons occupying adjoining premises or any part of the Building adjacent to or connecting with the Premises or any part of the Building or otherwise. In no event shall Licensor ever be liable to Occupant for any loss of business or any other indirect or consequential damages suffered by Licensor or Licensor’s patients from whatever cause.
Section 14. Broker. Licensor and Occupant each warrants and represents to the other that they have dealt with no broker in connection with the consummation of this Agreement, and, in the event of any brokerage claims against Occupant or Licensor (the “Indemnified Party”) predicated upon prior dealings with the other (the “Indemnifying Party”), the Indemnifying Party agrees to defend the same and indemnify the Indemnified Party against any such claim.
Section 15. Notices. Any notice from the Licensor to Occupant relating to the Premises or to the use thereof, shall be in writing and delivered by email, personally by hand delivery, or overnight delivery by a nationally recognized service. Any notice shall be deemed given one (1) business day after it is dispatched, provided, with respect to overnight and personal delivery by hand, receipt is acknowledged. All notices to Licensor shall be addressed as follows: Vansanity, Inc. 1536 Mass Ave, Lexington, MA 02420 Attn: Ignacio Fanlo. Notices to Occupant may be addressed to its Chief Executive Officer or to any principal contact between Occupant and Licensor.
Section 16. Binding Agreement. This Agreement supersedes any and all prior understandings of the parties, written or oral, with respect to the Premises. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that, as to Occupant, this Agreement shall only inure to the benefit of Occupant.
Section 17. Governing Law; Master Lease. This Agreement, and the rights and obligations of both parties hereunder, shall be governed by the laws of the Commonwealth of Massachusetts and the State of Texas, and subject and subordinate to the Master Leases with each location.
Section 18. Arbitration. This Agreement shall be construed in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any rule or principle of conflicts of law that may provide otherwise. The Parties agree that all disputes arising out of or relating to this Agreement will be subject to mandatory binding arbitration under the rules of Judicial Administration and Arbitration Services (“JAMS”) in effect at the time of execution. The arbitration will be heard and determined by a single arbitrator selected by mutual agreement of the Parties, or, failing agreement within thirty (30) days following the date of receipt by the respondent of the claim, by JAMS. Such arbitration will take place in Boston, Massachusetts. The arbitration award so given will be a final and binding determination of the dispute, and will be fully enforceable in any court of competent jurisdiction. Except in a proceeding to enforce the results of the arbitration or as otherwise required by law, neither Party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written agreement of both Parties.
Multiple Counterparts. This Agreement may be executed in counterparts, each of which shall be an original and all of which counterparts taken together shall constitute one and the same instrument.
EXHIBIT A
PERMITTED TREATMENTS
Face Contour & Smoothing; BOTOX & Dysport Wrinkle Reduction; Dermal Filler Volume Rejuvenation; Kybella Chin Contouring; Juviderm; Restylane and other fillers. Body Scuplting CoolScolpting® Fat Reduction; EmSculpt Fat Reduction and Body Sculpting; Laser Hair Removal; Latisse Eyelash Growth Treatment; Revitalizing Facial; Facials; Chemical Peels; Dermaplaning; Microdermabrasion; Micro-Penning (Micro-Needling); Cutera TruSculptID; Plasma Rich Platelet; Skin Rejuvenation; Texture, Tone & Tightening; Laser Resurfacing; Halo pro-fractional laser; Moxi; BBL; Skin Tone Correction; Ultrasound Skin Tightening; Other Body Treatments. Deep Cleaning Chemical and Resurfacing treatments; and BOTOX Excess Sweat Prevention, and other “spa treatments.”
EXHIBIT B
BUSINESS ASSOCIATE AGREEMENT
THIS BUSINESS ASSOCIATE AGREEMENT (this “Agreement”) is by and between You, the Covered Entity (“Covered Entity”), and Vansanity, Inc. (“Vansanity”) and all its affiliates including but not limited to Vansanity Medical Services (“VMS”) and is effective as of the date You electronically indicate Your acceptance of this Agreement (“Effective Date”).
RECITALS:
IF YOU ARE ENTERING INTO THIS AGREEMENT AS AN INDIVIDUAL, THE TERM “COVERED ENTITY” REFERS TO YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “COVERED ENTITY” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT.
WHEREAS, Vansanity has entered into a License and Space Sharing Agreement the (“License”));
WHEREAS, pursuant to the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (the “Act”) and the “Health Information Technology for Economic and Clinical Health Act,” part of the “American Recovery and Reinvestment Act of 2009” (“HITECH Act”), the Department of Health and Human Services (“HHS”) has promulgated regulations at 45 C.F.R. Parts 160–64, including regulations implementing certain privacy requirements (the “Privacy Rule”), certain security requirements regarding electronic media (“Security Rule”) and certain breach notification requirements (“Breach Notification Rule”), each as amended from time to time (the Act, HITECH Act, the Privacy Rule, the Security Rule and the Breach Notification Rule referred to collectively herein as “HIPAA”);
WHEREAS, Vansanity may receive, maintain, retain, record, store, transmit, hold, use and/or disclose Protected Health Information (as defined below) in conjunction with the services being provided under the License, thus necessitating a written agreement that meets applicable requirements of the Privacy Rule and the Security Rule, and making advisable certain additional agreements regarding HIPAA; and
WHEREAS, Vansanity and Covered Entity desire to satisfy the foregoing Privacy Rule and Security Rule requirements through this Agreement, and otherwise to address related matters regarding HIPAA on the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual agreements and undertakings of the parties, and for other good and valuable consideration the sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
Definitions: The following terms shall have the following meaning when used in this Agreement:
“Breach” shall have the same meaning as the term “breach” in 45 C.F.R. § 164.402.
“Designated Record Set” shall have the same meaning as the term “designated record set” in 45 C.F.R. § 164.501. “Electronic Protected Health Information” shall mean Protected Health Information that is “electronic protected health information” as defined in 45 C.F.R. § 160.103. “Individual” shall have the same meaning as the term “individual” in 45 C.F.R. §160.103 and shall include a person who qualifies as a personal representative in accordance with 45 C.F.R. §164.502(g). “Protected Health Information” shall have the same meaning as the term “protected health information” in 45 C.F.R. § 160.103, except limited to the information received from Covered Entity, or created, maintained or received on behalf of Covered Entity. “Unsecured Protected Health Information” shall mean Protected Health Information that is “unsecured protected health information” as defined in 45 C.F.R. § 164.402. “Required By Law” shall have the same meaning as the term “required by law” in 45 C.F.R. § 164.103. “Secretary” shall mean the Secretary of HHS or the designee of the Secretary of HHS. “Subcontractor” shall have the same meaning as the term “subcontractor” in 45 C.F.R. §160.103, except limited to any such individual or entity who creates, receives, maintains, or transmits Protected Health Information on behalf of Vansanity. Any capitalized term not specifically defined herein shall have the same meaning as is set forth in 45 C.F.R. Parts 160 and 164, where applicable. The terms “use,” “disclose,” and “discovery,” or derivations thereof, although not capitalized, shall also have the same meanings set forth in HIPAA.
Obligations and Activities of Vansanity: Vansanity agrees to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as Required By Law. Vansanity agrees to use appropriate safeguards and comply, where applicable, with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information, to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement. Vansanity agrees to report to the Covered Entity any use or disclosure of Protected Health Information not provided for by this Agreement, including, without limitation, Breaches of Unsecured Protected Health Information as required at 45 C.F.R. 164.410, and any Security Incident of which it becomes aware. The parties acknowledge and agree that this Section 2(c) constitutes notice by Vansanity to Covered Entity of the ongoing existence and occurrence of attempted but unsuccessful Security Incidents for which no additional notice to Covered Entity shall be required. Unsuccessful Security Incidents shall include, but not be limited to, pings and other broadcast attacks on Vansanity’s firewall, port scans, unsuccessful log-on attempts, denials of service, and any combination of the above, so long as such incidents do not result, to the extent Vansanity is aware, in unauthorized access, use, or disclosure of Electronic Protected Health Information. In accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, Vansanity agrees to ensure that any Subcontractors that create, receive, maintain, or transmit Protected Health Information on behalf of Vansanity agree in writing to the same restrictions, conditions, and requirements that apply to Vansanity under this Agreement with respect to such Protected Health Information. Vansanity agrees to make available Protected Health Information in a Designated Record Set to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.524 or any business associate agreement. Vansanity agrees to make any amendment(s) to Protected Health Information in a Designated Record Set as directed or agreed to by the Covered Entity pursuant to 45 C.F.R. § 164.526, or take other measures as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.526 or any business associate agreement. Vansanity agrees to maintain and make available the information required to provide an accounting of disclosures to Covered Entity as necessary to satisfy Covered Entity’s obligations under 45 C.F.R. § 164.528 or any business associate agreement.
To the extent that Vansanity is to carry out one or more of Covered Entity’s obligations under Subpart E of 45 C.F.R. Part 164, Vansanity agrees to comply with the requirements of Subpart E that apply to Covered Entity in the performance of such obligations. Vansanity agrees to make its internal practices, books, and records available to the Secretary for purposes of determining compliance with HIPAA. Permitted Uses and Disclosures by Vansanity: Vansanity may only use or disclose Protected Health Information as necessary to perform services for Covered Entity pursuant to the License. In addition, Vansanity is authorized to use Protected Health Information to de-identify the Protected Health Information in accordance with 45 C.F.R. 164.514(a)–(c). Vansanity may use or disclose Protected Health Information as Required By Law.
Vansanity agrees to make uses and disclosures and requests for Protected Health Information consistent with Covered Entity’s minimum necessary policies and procedures. Vansanity may not use or disclose Protected Health Information in a manner that would violate Subpart E of 45 C.F.R. Part 164 if done by Covered Entity, except for the specific uses and disclosures set forth in subsections (e), (f) and (g), below. Vansanity may use Protected Health Information for the proper management and administration of Vansanity or to carry out the legal responsibilities of Vansanity. Vansanity may disclose Protected Health Information for the proper management and administration of Vansanity or to carry out the legal responsibilities of Vansanity, provided the disclosures are Required By Law, or Vansanity obtains reasonable assurances from the person to whom the information is disclosed that the information will remain confidential and used or further disclosed only as Required By Law or for the purposes for which it was disclosed to the person, and the person notified Vansanity of any instances of which it is aware in which the confidentiality of the information has been breached. Vansanity may provide Data Aggregation services relating to the Health Care Operations of Covered Entity. Obligations of Covered Entity: Covered Entity shall notify Vansanity of any limitation(s) in the notice of privacy practices of Covered Entity or, if Covered Entity is a Business Associate, any Covered Entity served by Covered Entity, under 45 C.F.R. 164.520, to the extent that such limitation may affect Vansanity’s use or disclosure of Protected Health Information. Covered Entity shall notify Vansanity of any changes in, or revocation of, the permission by an Individual to use or disclose his or her Protected Health Information, to the extent that such changes may affect Vansanity’s use or disclosure of Protected Health Information. Covered Entity shall notify Vansanity of any restriction on the use or disclosure of Protected Health Information that Covered Entity has agreed to or is required to abide by under 45 C.F.R. 164.522, to the extent that such restriction may affect Vansanity’s use or disclosure of Protected Health Information. Except with respect to uses and disclosures by Vansanity of Protected Health Information under Sections 3(e), 3(f) and 3(g), above, Covered Entity shall not request Vansanity to use or disclose Protected Health Information in any manner that would not be permissible under Subpart E of 45 C.F.R. Part 164 if done by Covered Entity. Term and Termination: Term. The Term of this Agreement shall commence as of the Effective Date and shall terminate upon the termination of the License or on the date Covered Entity terminates this Agreement for cause as authorized in subsection (b) of this Section 5, whichever is sooner. Termination for Cause. Vansanity authorizes termination of this Agreement by Covered Entity upon written notice to Vansanity if Covered Entity determines Vansanity has violated a material term of this Agreement and Vansanity has not cured the breach or ended the violation within thirty (30) days of Covered Entity providing written notice thereof to Vansanity. Obligations of Vansanity Upon Termination. Upon termination of this Agreement for any reason, Vansanity shall: (i) Retain only that Protected Health Information which is necessary for Vansanity to continue its proper management and administration or to carry out its legal responsibilities; (ii) Return to Covered Entity or Covered Entity’s designee (to the extent permitted by HIPAA), or, if agreed to by Covered Entity, destroy the remaining Protected Health Information that the Vansanity still maintains in any form; (iii) Continue to use appropriate safeguards and comply with Subpart C of 45 C.F.R. Part 164 with respect to Electronic Protected Health Information to prevent use or disclosure of the Protected Health Information, other than as provided for in this Section, for as long as Vansanity retains Protected Health Information; (iv) Not use or disclose Protected Health Information retained by Vansanity other than for the purposes for which such Protected Health Information was retained and subject to the same conditions set out at Section 3(e) and (f), above, which applied prior to termination; and (v) Return to Covered Entity, or, if agreed to by Covered Entity, destroy Protected Health Information retained by Vansanity when it is no longer needed by Vansanity for its proper management and administration or to carry out its legal responsibilities. Survival. The obligations of Vansanity under this Section 5 shall survive the termination of this Agreement. Miscellaneous: Regulatory References. A reference in this Agreement to a section in the Privacy Rule, the Security Rule, or to another provision of HIPAA means the provision as in effect or as amended. Amendment. The parties agree to take such action as is necessary to amend this Agreement from time to time as is necessary for the Covered Entity to comply with the requirements of the HIPAA and any other applicable law.
Interpretation. Any ambiguity in this Agreement shall be resolved to permit compliance with HIPAA. Governing Law and Disputes. The construction, interpretation, and performance of this Agreement and all transactions under this Agreement shall be governed and enforced pursuant to the laws of Massachusetts, without giving effect to its conflicts of laws provisions, except to the extent Massachusetts law is preempted by any provision of federal law, including HIPAA. The Parties agree that all disputes arising out of or relating to this Agreement will be subject to mandatory binding arbitration under the rules of Judicial Administration and Arbitration Services (“JAMS”) in effect at the time of submission, as modified by this Section 6(d). The arbitration will be heard and determined by a single arbitrator selected by mutual agreement of the Parties, or, failing agreement within thirty (30) days following the date of receipt by the respondent of the claim, by JAMS. Such arbitration will take place in Boston, Massachusetts. The arbitration award so given will be a final and binding determination of the dispute, and will be fully enforceable in any court of competent jurisdiction. Except in a proceeding to enforce the results of the arbitration or as otherwise required by law, neither Party nor any arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written agreement of both Parties. No Third Party Beneficiary. Nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective successors or assigns of the parties, any rights, remedies, obligations, or liabilities whatsoever. Controlling Provisions. In the event that it is impossible to comply with both the License and this Agreement, the provisions of this Agreement shall control with respect to those provisions of each agreement that expressly conflict. This Agreement shall supersede and replace any prior agreements between the parties, with respect to subject matter of this Agreement. Effect. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors, assigns, heirs, executors, administrators and other legal representatives. Severability. In the event any provision of this Agreement is rendered invalid or unenforceable under any new or existing law or regulation, or declared null and void by any court of competent jurisdiction, the remainder of the provisions of this Agreement shall remain in full force and effect if it reasonably can be given effect. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original.
Notices. Any notice, consent, request or other communication required or permitted under this Agreement shall be in writing and delivered personally by hand delivery or overnight delivery by a nationally recognized service. Notice that is sent by overnight courier shall be deemed given one (1) business day after it is dispatched, provided that receipt is acknowledged. All notices shall be addressed as follows:
If to Covered Entity: via email, to the Covered Entity’s currently registered email address (as may be updated by the Covered Entity from time to time)
If to Vansanity:
Vansanity, Inc. 1536 Mass Ave, Lexington, MA 02420 Attn: Ignacio Fanlo
When signing up on the smartphone app, BY CLICKING “I ACCEPT” OR having the box ‘checked’, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE COVERED ENTITY UNDER THIS AGREEMENT AND ACCEPT ALL TERMS AND CONDITIONS SET FORTH HEREIN.
