Insertion Order Terms and Conditions
The insertion order (“Insertion Order” or “IO”) and the terms and conditions set out herein, shall together be read as Agreement, between Practo and Client, capturing the parties’ common understanding for doing business. These terms and conditions shall be used to capture the basis for call generation or for components of this contract, however, these terms and conditions do not govern the relationship between an end user and the Client (as set foth in the IO). The Agreement is privy to only the parties entering into the understanding (i.e. whose names have been set forth in the IO).
A valid contract shall be formed between Practo and the Client upon the Client having accepted the IO on the IO Effective Date.
a.“Affiliate”, means, with respect to either party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly or indirectly owns, is owned by or is under common ownership with such party to the extent of at least 50% of the equity having the power to vote on or direct the affairs of the entity, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such party.
b.“Representative(s)”, means three (3) personnel(s) of the Client who shall receive an update on the Unique Calls and/or Book.
c.“Unique Call(s)/ Book”, for the purposes of this Agreement means, book facility available through practo.com/any call generated for the Client if the click on link provided for Client on Practo application/website is generating a call from end user for the Client routed through the Practo unique number and is not a repeat call from the same end user. Such Unique Call shall include all calls irrespective of such calls resulting in the end user showing up at the Client premises or not, whether or not such call was missed by Client’s Representative. However, the parties agree that initially a Unique Call may be deemed invalid if it is later determined that it is the same end user calling the Client multiple times, provided such end user calls the Client, after a period of thirty (30) days interval, in which case the same call shall be considered a Unique Call.
The following information shall be included for all Unique Call and/or Book generated, at the time of same being shared with three (3) representatives of the Client: (a) Date/time and (b) in-coming number.
Capitalized terms used but not defined shall have the meanings assigned to such terms in the IO.
2.Payment: Client agrees to pay Practo for Unique Call and/or Book generated by Practo, its assigns, and/or Affiliates, in accordance with the terms of this Agreement. Practo shall raise an invoice on the Client immediately after the execution of the Agreement and the Client shall as an advance, provide a guaranteed amount (specified under the IO) which is the price per Unique Call and/ or Book generated, in the form of a cheque after the execution. In the event that, the Client wants Practo to generate more Unique Call and/or Book, then the Client shall be required to renew the IO. Client agrees that, the payments shall be made in a timely manner and that the payment shall be inclusive of all taxes. Taxes shall be payable as may be applicable.
3.Reporting: Reports shall be provided to the Client, based on the number of Unique Calls and/or Book generated and the details of the end user received by the Representatives. There shall be three (3) types of reports that will be shared by Practo with the Client.
a.Instant Report– Immediately when the end user calls the Client, the details of the phone number and the time of call, whether it was received or not will be sent to the Representatives of the Client.
b.Daily update-It shall be in the form of an ‘SMS’ and consist of the phone number and the time of call.
c.Monthly Reporting-A monthly report on the number of Unique Calls and/or Book generated, shall be provided through an email update.
4.Representations: The Client hereby represents and warrants that: (a) it shall comply with all applicable laws in the performance of its obligations hereunder; (b) information given to Practo by the Client will always be true, accurate, correct, complete and up to date, to the best of the Client’s knowledge; and (c) the Client shall maintain confidentiality of the Agreement.
5.Term and Termination: The validity of the IO shall commence from the Effective Date of the IO and continue till the time the number of Unique Calls and/or Book (“Term”) indicated in the IO, are achieved or the term provided for achieving the said number of Unique Calls and/or Book, whichever happens earlier. Practo may terminate this Agreement upon providing seven (7) business days’ notice in writing to the Client. However, if either party is in material breach of this Agreement and such breach is not cured within thirty (30) business days of being notified in writing of the breach, then such party may immediately terminate this Agreement. In case of termination by Practo, Practo shall repay guaranteed amount after deducting amounts due to Practo for the number of Unique Calls and/or Book generated until termination,. In the event, Practo does not generate the number of Unique Calls and/or Book mentioned in the IO, Practo shall either reimburse the guaranteed amount after deducting amounts due to Practo for the number of Unique Calls and/or Book generated or give an option to the Client to extend the IO to such other mutually agreed Term to complete the Unique Calls and/or Book mentioned in the IO.
6.Disclaimer of Warranties: To the extent permitted by law, and except for the representations and warranties set out in this Agreement, Unique Calls and/or Book shall be generated and details of the end user shall be shard hereunder on an, “AS IS” basis and Practo hereby expressly disclaims all other warranties, expressed or implied, regarding the activity undertaken hereof. Notwithstanding anything contained herein, Practo specifically disclaims any warranty regarding: any benefits that the Client might obtain from the Unique Calls and/or Book and the duration for which the relationship between the Client and the end user may continue for. Practo does not guarantee continuous or uninterrupted service.
7.Indemnity: Client agrees to defend, indemnify and hold harmless Practo and all its employees, consultants or agents from and against any and all claims, actions, suits, proceedings, loss, damages, costs and expenses that any or all of them may suffer or incur on account of Client’s breach of any provision of this Agreement and/or breach of laws and/or due to breach of confidentiality obligations by Client.
8.Limitations of Liability: In no event will either party be liable to the other party for lost profits or lost revenue, or for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages. Practo’s liability under this Agreement shall not be in any event, greater than the total of the amount paid or payable by Client to Practo hereunder.
9.Non-Disclosure, Data Ownership, Privacy and Laws: Each party (the Receiving Party) shall preserve as confidential all information related to the business activities of the other party (the Disclosing Party), its Affiliates, clients, and entities, irrespective of such information being marked as ‘confidential’ or otherwise. Such information shall include details of end users, the pricing of the Unique Calls and/or Book, information set forth in the IO, all trade secrets, ideas, know-how, concepts, processes, techniques, research, data, plans, materials, product development and all other information of a confidential nature in whatever form (“Confidential Information”). The Receiving Party shall hold Confidential Information in trust and confidence for the Disclosing Party and shall not disclose Confidential Information to any third party, or use any Confidential Information for its own benefit or the benefit of any other person, unless specifically authorized by the Disclosing Party in writing. The Receiving Party shall limit access and disclosure of such Confidential Information to its personnel or contractors on a “need to know” basis only and where such personnel or contractors are bound by similar obligations of confidentiality that are as restrictive as the terms of this Agreement. However, Confidential Information does not include any particular information that the Receiving Party can demonstrate : (i) is currently in the public domain, (ii) was previously known to the Receiving Party free from any obligation to keep it confidential, (iii) was or is publicly disclosed by or on behalf of the Disclosing Party subsequent to the receipt of such information by the Receiving Party or (iv) is independently developed by the Receiving Party or its personnel without any access to or use of Confidential Information of the Disclosing Party. Receiving Party may disclose Confidential Information of Disclosing Party if legally required to do so under applicable law provided that Receiving Party, where reasonably practicable and to the extent legally permissible, has brought such disclosure to the notice of Disclosing Party in writing, so that Disclosing Party may seek a protective order or other appropriate remedy. At any time at the request and option of the Disclosing Party and/or automatically in the event of termination or expiration of the Agreement (or any part thereof), Receiving Party agrees to promptly: (i) return to Disclosing Party the Confidential Information; or (ii) destroy or permanently erase the Confidential Information (in whatever form it is recorded), at the Disclosing Party’s option.
10.Force Majeure: Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labour disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labour, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
11.Miscellaneous: (a) Governing Law -This Agreement shall be governed by, interpreted and construed in accordance with the laws of Philippines and parties submit to the exclusive jurisdiction of the competent courts in Philippines. (b) Independent Contractors-The parties are independent contractors and expressly acknowledge that no agency, partnership, joint venture or employer-employee relationship is intended or created hereby. (c) Entire Agreement– This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter and may be changed only by a subsequent agreement in writing signed by both parties. (d) Binding Agreement-All terms and provisions of this Agreement will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns. (e) Order of Precedence-In the event of any inconsistency between the terms of an IO and these terms and conditions, terms and conditions shall prevail to the extent of any inconsistency. (f) Severability– If any portion of this Agreement is held invalid, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement. (g) Notices– Any notice required to be delivered hereunder will be deemed delivered, one (1) business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Client/Practo shall be sent to the address specified on the IO. (h) Assignment– Client shall not have the right to assign or transfer any of its rights or obligations hereunder, and any attempt to assign or transfer such rights or obligations without Practo’s prior written approval will be null and void.