Subscriber Agreement
Effective: 6.26.17
AGREEMENT BETWEEN The Microdroplet Lift® and you, the subscribing Member:
The following Terms and Conditions, referred to as the Licensing Agreement (“Agreement”), sets forth the entire rights and obligations of The Microdroplet Lift® (“MDL”), and/or Physician (M.D. or D.O), Registered Nurse, and Physician Assistant, (“Member(s)”) as mutually agreed upon by the Parties (hereinafter collectively referred to as “Parties”).
1. SCOPE OF SERVICES
MDL provides an informational and directory service through the Microdroplet Lift® website for the public and the medical community to learn about the patented Microdroplet Lift® method for administering cosmetic botulinum toxin treatment in the periocular area. In addition to a general information site, the site also provides a directory listing of injectors who agree to offer this service to appropriate consumers who find these Member providers through the site. It is understood that this is strictly a directory service. The MDL website is solely informational. It does not certify and/or endorse for the medical services provided by Members. Additionally, Members can access information through the website to learn how to perform the Microdroplet Lift®. This includes access to a training video, which is provided with the initiation of the subscription service. Viewing the video, and providing photographic documentation in the form of two sets of before and after photos demonstrating that the pending Member has performed the service, and the posting of a back-link on the homepage of the Member’s website is required to activate the public directory listing on the MDL website. The Member is required to provide a publication release for these images so that these images can be used to promote the Member on the MDL website. In-person courses demonstrating live treatments of the Microdroplet Lift are conducted from time to time in Beverly Hills. These courses are available for a separate registration fee to interested parties on a space available basis. Other training material may become available through the MDL website which may be made available for additional fees.
2. TERM
This Agreement shall commence on the date Member completes the registration and tenders payment to initiate participation in the Program. The initial payment is for the first thirty (30) days of membership. It is the Member’s responsibility to complete the steps outlined in Section 5 below in order for the Member’s information to appear in the public directory of Microdroplet Lift® Injectors. After the initial term, the Agreement shall continue on a month-to-month basis until terminated by either party requiring 30 days written notice, to the other, no cause necessary.
3. SERVICE FEES
Upon execution of this Agreement, Member shall provide credit card information for an initial payment of Three-Hundred Dollars ($300) that includes access to the training video and the first month’s subscription fee. Thereafter there will be a reoccurring monthly charge of $75.00, this is the basic subscription fee for a limited license to use the Microdroplet Lift® patented drug delivery method, a limited license to use the registered trademark “Microdroplet Lift®” in marketing, and the use of the Microdroplet Lift® logo. This permits the nonexclusive right to perform the Microdroplet Lift with cosmetic botulinum toxin, to market the Microdroplet Lift®, and to use the registered trademark: The Microdroplet Lift®, and the associated Microdroplet Lift® logo in marketing. Additionally, the Member will be listed on the website as a Microdroplet Lift® Injector once all the steps outlines in section 5 are completed as determined by the MDL. Member maintains these rights provided Member maintains a paid subscription as described in this Agreement. Cancelling the subscription terminates Member’s rights to offer The Microdroplet Lift® to the public, and to use other intellectual property related to the service including, but not limited to, the trademarks, logo, and the listing in the Microdroplet Lift® directory. To complete the initial registration, Member will be directed to an online content page for viewing the training video. The fee for access to the video is included in your initial Three-Hundred Dollar ($300) payment. If Member has physician assistants and/or nurse injectors who will be listed as providing the Microdroplet Lift® in Member’s office, the doctor must also be a Microdroplet Lift® Injector in good standing and each injector must also be separately registered and in good standing as a Microdroplet Lift® Injector. After the initial term, MDL reserves the right to increase the Subscription Rate and/or otherwise amend this Agreement. Receipt of notice is not required for any change in the Subscription Rate and/or amendment by MDL to take effect.
4. GUARANTEE
The MDL website is solely an educational and directory service. MDL does not guarantee and/or warranty the number of referrals Member may receive from this site. MDL does not dictate how Member practices. It does not guarantee that individuals who see Member will be appropriate candidates for the Microdroplet Lift® and MDL does not warrant Member services to those seeking treatment. Referrals from The MDL website are motivated to have the Microdroplet Lift® with cosmetic botulinum toxin. It is Member’s responsibility to determine if service is appropriate for the patient and not the responsibility of MDL.
5. PAYMENT OF FEES
The initial subscription fee of Three-Hundred Dollars ($300) is due when the individual registers and subscribes to be listed as a Member. The membership listing will be activated when the individual completes the registration that includes providing billing information and tendering payment, including authorizing reoccurring credit card payment for the monthly subscription fee. To activate the Member directory listing on the Microdroplet Lift® website, the Member must view the training video, complete the training video questionnaire, treat two patients and submit before and after photographs documenting the treatment along with a photo release signed by the respective patients, and place the Microdroplet Lift® back-link “widget” found on the subscriber brand asset page, which will establish an active back-link to the Microdropletlift.com website. Once the Member has successfully completed these steps, the Member’s listing in the directory will be activated. After the initial term, MDL will bill on a month-to-month basis for Member’s subscription. Should there be an issue with Member’s credit card, a courtesy email will be sent to Member’s email on file, but we reserve the right to immediately terminate Member’s membership, which also includes prohibiting the Member from performing The Microdroplet Lift® and/or using any of The Microdroplet Lift® intellectual property.
6. PROFESSIONAL LICENSING
Member represents and warrants that Member is fully licensed to provide Medical Services, at their practice location and is in good standing with the appropriate state licensing board where the Member practices. Physician Assistants and/or Nurse Members represent and warrant that they are fully licensed to provide medical and nursing services in the location they practice and are under the direct supervision of a current MDL Member physician who is also in good standing with the local medical board and/or authorities. Member further warrants that Member will notify MDL in writing via email of any event, including but not limited to probation, suspension and/or revocation of licensure, that affects the status of Member’s license with the applicable board and/or governing body within three (3) days after any such event occurs.
7. REPRESENTATIONS
Member represents and warrants that all information provided to MDL for consideration into the Agreement is true and agrees that MDL has materially relied upon Member’s representations in accepting Member into the Agreement. In addition, Member also represents and warrants that any information provided by and/or on behalf of Member, either now and/or in the future, as accurate and that Member is authorized and licensed to provide the medical and/or nursing services that are provided. Members warrant maintaining appropriate medical malpractice insurance. Should malpractice coverage lapse, Member shall cease and desist from offering the Microdroplet Lift® services and notify MDL within three (3) working days of this event. The MDL listing will be suspended until the malpractice coverage is remedied without a refund of fees. The MDL may request verification of information provided by Member. Misrepresentation will result in forfeiture of fees paid and termination of membership.
8. NOT A FRANCHISE
The parties agree that this is not a franchise agreement. MDL does not control who Member treats, when Member treats, and/or how much Member charges to provide the Microdroplet Lift®.
9. TRANSFER
Member agrees that this contract only covers the Member’s personal use as a practitioner and does not extend to cover any other practitioner whether in the same office and/or elsewhere. The Member may not transfer this Agreement to anyone and/or any third parties.
10. RECORDING OF CALLS
By signing this Agreement, Member acknowledges and gives consent for MDL to record telephone calls between Member’s office and MDL.
11. ASSOCIATES/PARTNER PHYSICIANS, PHYSICIAN ASSISTANTS, AND INJECTING REGISTERED NURSES
Member agrees that only Members in good standing with MDL will offer the Microdroplet Lift® to patients. Member agrees not to train other physicians, physician assistants, and/or nurses on how to perform the Microdroplet Lift®. Members only have permission to use the Microdroplet Lift® method patent for use on Member’s own patients, provided they personally provide the treatment, and to use the registered trademark: The Microdroplet Lift® and the associated logo in connection with the location listed with MDL. Other physicians, physician assistants, and/or nurses that are part of a Member’s practice are not licensed to use the patent and intellectual property unless those individuals are also MDL Members in good standing. Specifically Members agree not to post video demonstrating the procedure on their website, third party sites, or social media platforms. MDL understands the potential value of video showing limited elements of the treatment. These videos need the prior approval of MDL before being posted.
12. PHOTOS/TESTIMONIALS
Throughout the term of this Agreement, and for the sole purpose of marketing Member’s practice to generate new potential patients, Member grants MDL a royalty-free, non-exclusive, non-assignable rights and/or license to use, reuse, publish and republish practice information including photographs of the Member’s staff, associates, partners and/or MDL Members in good standing in Member’s office, affiliates of any such individuals or entities, even if not specifically named herein if available and if contained within Member’s website or provided to MDL by Member, in whole and/or in part, without restriction, and in any medium, as well as in any marketing and advertising materials. Additionally, patient testimonials, if available, may be used in the same manner. Member represents that to the best of Member’s knowledge, Member owns and/or licenses all rights necessary to license the above-mentioned rights and further represents to the best of Member’s knowledge, that the photographs and testimonials were commissioned as a “work made for hire” and/or were obtained with any necessary permission/authorization. Member waives any right to inspect and/or approve the finished product and/or the advertising copy that may be used in conjunction with the photographs and testimonials.
13. SUSPENSION OF SERVICES AND TERMINATION
MDL may immediately suspend and/or terminate Member for any one of the following: (a) Consumer complaints about Member and/or sub-standard business premises, procedures and/or other grievances which are, in MDL’s sole determination, excessive either in gravity and/or number, and/or do not live up to consumer expectations and/or reflect well on MDL; (b) Member’s failure to pay Service Fees as described in Section 5; (c) Probation, suspension and/or revocation by any commission and/or board having jurisdiction of Member’s practice and/or licensing; and/or (d) Material breach of Member’s obligations, as outlined in Sections 5-11.
14. RELEASE OF ALL CLAIMS
For the consideration and/or other agreements set forth herein, Member on behalf of self and all persons and entities as defined herein, do hereby release, acquit, and forever discharge MDL and their respective past and present owners, officers, directors, shareholders, partners, employees, agents, licensors, servants, accountants, spouses, independent contractors, associates, representatives, attorneys, insurers, reinsurers, subsidiaries, divisions, successors, heirs and/or assigns and affiliates of any such individuals or entities, even if not specifically named herein, from any and all past, present, future, known and/or unknown, asserted and/or not asserted, claims, debts, demands, obligations, liabilities, suits, liens, rights, offsets, and causes of action of whatsoever nature for actual damages, additional damages, property damages, exemplary damages, punitive damages, consequential damages, statutory damages, interest, indemnity costs, defense costs, costs of court, and attorney’s fees, and/or any other sort of damages, based upon and/or sought upon any legal theory whatsoever, including but not limited to federal copyright laws, common law copyright laws, contract, tort, fraud, negligence, misappropriation, unjust enrichment, conversion, trespass to chattel, use of person’s image, invasion of privacy, defamation, disparagement, contribution, breach of contract, breach of guaranty, misrepresentation, malice, alter ego, strict liability, any action permissible under California law, any action permissible under Federal law, express and/or implied warranties of any and every kind, and/or any other theory of law and/or equity, whether known and/or unknown, whether any such liability may be direct and/or indirect, liquidated and/or unliquidated, whether presently accrued and/or accruing hereafter, whether such rights are absolute and/or contingent, foreseen and/or unforeseen, and/or whether heretofore asserted and/or as yet asserted, arising out of and/or as a result of any occurrence related to this matter.
15. INDEMNITY
Member agrees to fully and completely indemnify, defend and hold harmless MDL and their respective past and present owners, officers, directors, shareholders, partners, employees, agents, licensors, servants, accountants, spouses, independent contractors, associates, representatives, attorneys, insurers, reinsurers, subsidiaries, divisions, successors, heirs and/or assigns and affiliates of any such individuals or entities, even if not specifically named herein, from any claims and/or causes of actions of any kind, whether from negligent and/or intentional acts and/or omissions of MDL, losses, costs and/or expenses asserted by third parties arising out of and/or relating to this matter and/or any events and/or transactions which may be the subject matter of this Agreement and/or failure to perform this Agreement. The obligation to indemnify, defend and hold harmless specifically includes any claims and/or causes of action that may be brought against MDL and/or their respective past and present owners, officers, directors, shareholders, partners, employees, agents, licensors, affiliates, servants, accountants, spouses, independent contractors, associates, representatives, attorneys, insurers, reinsurers, subsidiaries, divisions, successors, and heirs and assigns. It also includes, but is not limited to claims against and/or liability of MDL for use of all items identified in Section 12.
16. LIMITATION OF LIABILITY
Member’s sole and exclusive remedy for any and all claims for damages under this Agreement, including general, special and punitive damages, is limited to the total sum of fees paid by Member under this Agreement during the Initial 30 day Term. MDL makes no representation as to the quantity of potential patients who may seek care as a result of the Member listing and/or how many, if any, potential patients become actual patients of record for Member. MDL shall not be held responsible and/or liable for any circumstances beyond its control, including but not limited to media preemptions due to elections, power outages and/or the unavailability of telephone services and/or the Internet. Additionally, MDL shall not be held responsible and/or liable for any distortion and/or alteration, whether intentional and/or negligent, that may occur in the use, reuse, publishing and republishing of any items referred to in Section 12.
17. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed, construed and interpreted in accordance with the laws of the State of California. Member agrees and hereby submits to the exclusive and preferential jurisdiction of the courts of California with respect to all matters relating to Member’s access and use of the Site and the Content as well as any dispute that may arise therefrom and that the applicable law shall be the laws of the state of California.
18. RELATIONSHIP OF MEMBER TO MDL
Neither party shall represent itself to be an agent, joint venture, principal and/or owner of the other. No rights, express and/or implied, to use MDL’s service marks and/or treatment method are granted on a permanent basis to Member by this Agreement. Members do not have the right to grant, disseminate, and/or distribute the methods to third parties. It is specifically agreed and acknowledged that MDL is solely an informational and educational service, is not engaged in the practice of medicine and has no control over, nor input in, any medical service and/or treatment rendered by Member’s Physicians and/or Nurses in the Member’s practice.
19. BREACH OF AGREEMENT AND LIQUIDATED DAMAGES
Member understands and agrees that, because damages are often difficult to calculate, if it becomes necessary for MDL to pursue legal action to enforce the terms and conditions of this Agreement, Member will be liable to pay the following amounts as liquidated damages, which Member accepts as reasonable estimates of damages for the specified breaches of this Agreement:
Member’s right to market the trademark Microdroplet Lift® and use the Microdroplet Lift Patent is entirely based on being an activated subscribing Member of the MDL site. Once the member’s membership lapses from failure to pay the subscription, all rights to use the MDL patent and logos expire. Member agrees to cease and desist the use of the logo in marketing and to immediately stop performing the Microdroplet Lift® in violation of this Agreement. Member agrees to promptly pay MDL Five-Hundred Dollars ($500) for each day Member uses the MDL patent and/or trademarks in violation of this Agreement. MDL may, at its sole discretion, but shall not be required to, issue Member a warning before assessing damages.
Except as set forth in the foregoing section, Member agrees to pay the actual damages suffered by MDL including, but not limited to attorneys’ fees, costs, and all litigation expenses, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of this Agreement, MDL reserves the right to seek the remedy of specific performance of any term contained herein, and/or a preliminary and/or permanent injunction against the breach of any such term and/or in aid of the exercise of any power granted in this Agreement, and/or any combination thereof.
20. ATTORNEYS FEES, COSTS, AND EXPENSES
With the exception noted in Section 19 above, it is agreed that the Parties shall be otherwise responsible for their own attorney’s fees, costs, and expenses, related to breach of this matter, the settlement of this matter, the preparation of any documents relating to this matter, and any and all litigation fees.
21. PROVISIONS OF THIS AGREEMENT
The provisions of this Agreement shall be liberally construed to effectuate the intent of the parties. Section headings have been inserted for convenience only and shall not be given undue consideration in resolving questions of construction and/or interpretation. For purposes of determining the meaning of, and/or resolving any ambiguity with respect to, any word, phrase, term or provision of this Agreement, neither the Agreement nor any uncertainty and/or ambiguity herein shall be arbitrarily construed and/or resolved against any Party under any rule of construction.
22. VOID AND/OR ILLEGAL CLAUSES / SEVERABILITY
Should any clause, paragraph, or part of this Agreement be held and/or declared by a court of competent jurisdiction, void and/or illegal for any reason, all other clauses,
paragraphs, and/or parts of this Agreement which can be performed and/or effective without such illegal clause, paragraph, and/or part, shall nevertheless remain in full force and effect.
23. LANGUAGE OF THE AGREEMENT
The language and terms of this Agreement are to be understood in their ordinary sense (except where otherwise defined) and are not to be interpreted in a technical manner so as to unfairly deprive any Party of substantive rights. Whenever the context may so require, the masculine gender shall be deemed to refer to and include the feminine and neuter, and the singular to refer to and include the plural, and vice versa.
24. ENTIRE AGREEMENT
This Agreement contains the entire understanding of the Parties and supersedes any and all prior agreements, arrangements, and/or understandings among the Parties relating to this matter. No other oral and/or written understandings, statements, promises and/or inducements contrary to the terms of this Agreement exist.
