This Click-Wrap Subscription Agreement (hereinafter “Agreement”) is a legal contract between you, (hereinafter referred to as “You”, “Your”, or “Customer”) and Practo Technologies Private Limited with its principal place of business located at RPS Green,165/5 Krishnaraju Layout, Landmark: Near Kalyani Magnum InfoTech Park J P Nagar 4th Phase, Bangalore-560076 India (hereinafter referred to as “Practo”), for access to the Practo Software. BE SURE TO CAREFULLY READ AND UNDERSTAND ALL OF THE RIGHTS AND RESTRICTIONS DESCRIBED IN THIS AGREEMENT BEFORE USING THE PRACTO SOFTWARE. BY USING THE PRACTO SOFTWARE, YOU INDICATE YOUR PERSONAL ACCEPTANCE AND YOUR CONCURRENCE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DO NOT USE THE PRACTO SOFTWARE.
The Customer herby acknowledges that Practo has designed and developed certain proprietary software defined below as Practo Software to be used by individuals/establishments looking for web based clinical management, software solutions, providing cloud based access to medical reports to its clients; and that Practo intends to make available such Practo Software, to the Customer(s) to enable the Customer(s) to book appointments with patients, send reminders to patients for appointments, share the electronic medical records, capture their clinical notes and prescriptions, generate bills and invoices, (“Purpose”).
WHEREAS, the Customer, being a third party / end customer, desires to use the Practo Software for the Purpose, and not for redistribution.
1.Definitions.
1.1 “Practo Software” shall mean, collectively or individually, the software created/ designed by Practo identified in Exhibit A, attached tothis Agreement that is provided to the Customer(s) on a subscription basis for the Purpose, including the Updates (defined below).
1.2 “Updates” shall mean enhancements, bug fixes, updates and new versions made to the Practo Software by Practo and provided to the Customer by Practo.
1.3 “Upgrades” shall mean replacement of the Practo Software with a newer or better version in order to bring the system up to date or improve the characteristics of the Practo Software.
2.Intellectual property rights.
2.1 Ownership. Practo retains all right, title and interest in and to and ownership of all Practo Software, to all Updates and all modifications and the intellectual property rights thereto. Practo does not transfer either the title or the intellectual property rights of the Practo Software and its subscription services to the Customer(s).
2.2 Preservation of Practo’s Notices. The Customer agrees not to (and not to allow others to) remove, alter, cover over or deface Practo’s proprietary notices which appear in or in connection with the Practo Software as provided by Practo to the Customer under this Agreement. Additionally, Practo may include Customer’s name and/or logo within its list of customers for general promotional purposes.
2.3 Subscription to the Customers. Subject to all limitations and restrictions contained herein, Practo grants to the Customer a subscription to software as a service (‘SaaS’) and a non-exclusive, revocable, limited, and non-transferable right to access and operate the object code form of the Practo Software, as hosted by Practo (“Use”). Customer shall have a limited right and license to Use the Practo Software solely for its internal purposes, to perform the functions described under Exhibit A, attached hereto, for the Purpose. Customer shall not allow any website that is not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer’s web site that provides direct or indirect access to the Practo Software. Unless otherwise expressly permitted in this Agreement under Exhibit A, attached hereto, Customer shall not permit any subsidiaries, affiliated companies, or third parties to access the Practo Software. Customer shall be provided with log-in credentials to the Practo Software by the Practo representative and the Customer shall use the same to create an account (“Customer Account”). The Customer Account shall be the interface between the Practo Software and the Customer and will enable the Customer to view pricing details of the subscription and other features pertaining to the Practo Software.
2.4 Free Trial. Practo may offer at its discretion, a free trial of the Practo Software for a specified time period. During such trial period, Customer shall be bound by the terms of this Agreement and any applicable law, regulation and generally accepted practices or guidelines in the relevant jurisdictions. Any data which Customer enters into the Practo Software, and any customizations made to the Practo Software by or for Customer, during Customer’s free trial will be permanently lost at the expiry of the specified time period unless the Customer Upgrades his/her/its subscription to one of the paid subscription plans. Practo does not provide any warranty during the trial period.
2.5 Customization to the Practo Software. Practo has the sole right to modify any feature or customize them at its discretion and there shall be no obligation to honor customization requests of the Customer. The subscription fee hence charged is exclusive of any customization costs.
2.6 Functionality Changes. Practo at its discretion reserves the right to add new functionality, provide such functionality at a cost, remove existing functionality, and modify existing functionality to the Practo Software as and when it deems fit, and make any such changes available in newer versions of the Practo Software or native mobile application or all of these at its discretion. The Customer will be duly notified upon release of such newer versions and Practo reserves the right to automatically Upgrade all its users, including the Customer, to the latest version of the Practo Software as and when Practo deems fit. The new features may not be given to older plans and may be reserved only for newer plans or provided at additional charge. Customer hereby agrees and acknowledges that Practo reserves the right to extend or withdraw one of the functionalities on Practo Software called ‘ABS’ (also known as Instant) provided to Customer at Practo’s sole discretion, based on the number of appointments being honoured by Customer. The extension or withdrawal of such facility shall be intimated to the Customer by Practo. Practo, at its sole discretion, reserves the right to extend the “Share” functionality to the Customer at the Customer’s request. The terms and conditions pertaining to the Share functionality is more fully described in Exhibit C attached to this Agreement. The add-on functionality is as described in Exhibit D of the Agreement.
2.7 Customer and other Information. Any communication sent by or through Practo or the Practo Software to the clients or customers of the Customer(s) is based solely on information uploaded by Customer on the Practo Software. The accuracy and completeness of such information (including but not limited to contact details of the client or customer) is the sole responsibility of the Customer. Practo will not be responsible for the incompleteness or inaccuracy of such information, including without limitation, if as a result of such inaccuracy, a communication is sent to an unintended recipient. Practo Software might also contain other features which provides information including any content/ articles related to any medical references and recommendations and the Customer agrees and acknowledges that Practo will not be responsible for the inaccuracy of such information.
2.8 Additional Restrictions. In no event shall Customer disassemble, decompile, or reverse engineer the Practo Software or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Practo Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Practo Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls Practo Software’s operation and creating the original source code or any approximation thereof by, for example, studying Practo Software’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Practo Software that could be construed to be reverse engineering, disassembling, or decompiling.
2.9 Authorized Users. Unless otherwise specifically provided in the Agreement, “Authorized Users” will only consist of: (i) employees of Customer, and (ii) subject to Section 4 (“Confidentiality”), third party contractors of Customer who do not compete with Practo (“Permitted Contractors”). Permitted Contractors may Use the Practo Software only at Customer’s place of business or in the presence of Customer personnel. Customer is fully liable for the acts and omissions of Permitted Contractors under this Agreement.
2.10 Feedback. Customer acknowledges that the Practo Software shall include the ability for users of the Customer’s service (“End-Users”) to provide feedback (“Feedback”) on such service using the Practo Software. Customer acknowledges that Practo shall be entitled to, in its sole discretion, to publish or not publish such Feedback or to retain or not retain such Feedback and to moderate such Feedback, as required. “Feedback” for the purposes of this Agreement shall mean feedback, ratings and review provided by End-Users to the Customer’s service made available by Practo on the Practo Software. Any communication sent by the Customer to its clients or customers (whether or not End-Users) based on information collected by the Customers of its clients or customers will be sole responsibility of the Customer. The Customer must ensure accuracy of such communication sent, and must ensure that it is sent to the intended recipient.
3. Payments and Refunds.
3.1 Orders. Practo shall distribute/activate the Practo Software within fifteen (15) business days upon clearance of the subscription fee for the order placed in accordance with Exhibit B attached hereto. The Customer shall be liable to pay the additional subscription fee in accordance with Exhibit B attached hereto or as specified in the invoice, in the event the Customer wishes to Upgrade the Practo Software.
3.2 Refunds. In the event the Customer chooses to cancel the subscription, Practo shall provide refunds on a prorated basis for the unused period.
4.Confidentiality.
4.1 Confidential Information. The parties to this Agreement undertake to retain in confidence all information disclosed to the other party in relation to this Agreement that the disclosing party has designated as being confidential in writing or if disclosed orally, or if, designated as confidential at the time of such disclosure and reduced to writing conspicuously marked as confidential and sent to such other party within thirty (30) business days thereof (“Confidential Information“). The terms and conditions of this Agreement including its Exhibits shall be considered Confidential Information.
4.2 Exclusions. “Confidential Information” will not include information that: (a) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the receiving party; (b) the receiving party can demonstrate to have had rightfully in its possession and without restriction, prior to disclosure hereunder; (c) is independently developed by the receiving party without use of the disclosing part’s Confidential Information, as can be shown by tile written records of the receiving party; (d) is lawfully obtained from a third party who has the right to make such disclosure; or (e) is released for publication by the disclosing party in writing. A receiving party also may disclose disclosing party’s Confidential Information to the extent required by a court or other governmental authority, provided that the receiving party promptly notifies the disclosing party of the disclosure requirement and cooperates with the disclosing party (at the latter’s expense and at its request) to resist or limit the disclosure.
4.3 Protection of Confidential Information. Each party agrees to protect the other party’s Confidential Information to the same extent that it protects its own confidential information of a similar nature and shall take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information to third parties. A party may disclose other party’s Confidential Information to its directors, officers, employees and third party contractor(s) (“Representatives”) on a need to know basis and to the extent necessary for the purpose of this Agreement. If a party provides Confidential Information of the other party to its Representatives, then it will ensure that such Representatives have entered into a written confidentiality agreement with the part providing such information to the Representatives protecting such Confidential Information from unauthorized disclosure or improper use. Obligations of confidentiality under this Agreement shall survive the termination or expiration of the Agreement for a period of three (3) years; save for Confidential Information constituting trade secrets, in which event the obligations shall subsist indefinitely.
5.Representations and Warranties.
5.1 By the Customer. The Customer represents and warrants that the (a) Customer is 18 years of age or older and has the right, authority and capacity under the applicable law to use the Practo Software and enter into this Agreement; (b) Customer will not transfer (including by way of sublicense, lease, assignment or other transfer, including by operation of law) their login and Account details or right to use the Practo Software to any third party; (c) information given to Practo or uploaded on the Practo Software by the Customer will always be true, accurate, correct, complete and up to date, to the best of the Customer’s knowledge and that the Customer is the owner of the data disclosed and Customer has the necessary rights (under applicable laws) from the end-user to upload such information on the Practo Software, including but not limited to end-user health records (“User Content”), and that such right from the end-user shall include an explicit right for Practo to reflect and map the User Content with an account of such user as may be created by such user through the Practo website and for Practo to further store and use the User Content for the purposes of Practo’s business and for providing such other services in India and outside India, as may be applicable ; (d) Customer will not use the Practo Software for any unauthorized and unlawful purpose; (e) Customer will not engage in any activity that interferes with or disrupts the Practo Software or the servers and networks which are connected to the Practo Software; (f) Customer will not reproduce, duplicate, copy, transfer, license, rent, sell, trade or resell the Practo Software for any purpose whatsoever; (g) comply with all laws, regulations, and ordinances applicable to the Customer and its business and relating to the use of the Practo Software under this Agreement; and (h) Customer will be subscribing to the Practo Software only for the Purpose.
5.2 By Practo. The Practo Software provided by Practo is provided on an “as is”, “as available” basis and Practo makes no express or implied representations or warranties about its subscription services and/ or the Practo Software or of merchantability or fitness for a particular purpose or use or non-infringement. Practo does not authorize anyone to make a warranty on Practo’s behalf and you may not rely on any statement of warranty as a warranty by Practo.
6.Indemnity.
6.1 Practo Indemnity. Practo shall indemnify, hold harmless and, defend the Customer from and against any and all final court awarded damages that are attributable to claim by a third party indicating that the Practo Software infringes such third party intellectual property rights; provided that: (a) the Customer gives Practo prompt notice in writing of any such suit and permits Practo, through counsel of its choice, to answer the charge of infringement and defend such claim or suit; (b) the Customer provides information, assistance and authority to enable Practo to defend such suit; and (c) Practo shall not be responsible for any settlement made by the Customer without Practo’s prior written permission provided, however that such permission shall not be unreasonably withheld.
6.2 Duty to correct. Should any Practo Software become the subject of a claim of infringement of a third party intellectual property right, Practo shall, at Practo’s expense: (a) procure for the Customer the right to use the Practo Software in question; or (b) replace or modify the Practo Software to make it non-infringing, provided that substantially the same function is performed by the replacement or modified Practo Software; or (c) if the right to use cannot be procured or the Practo Software cannot be replaced or modified, Practo shall accept the return of the Practo Software and reimburse the Customer for any payments made in advance for the un-used term of the Agreement for such Practo Software. The Customer’s sole and exclusive remedy is as stated herein and to cease use of the Practo Software.
6.3 Exclusions. Practo shall have no liability set forth in Section 6.1 above: (a) for any claim or suit, where such claim or suit would have been avoided but for the effect on the Practo Software caused by other software or hardware by the Customer; (b) for infringement of any intellectual property or proprietary rights arising in whole or in part from changes made to any Practo Software by any party other than Practo; and (c) where the allegedly infringing activity continues after the Customer has been notified thereof or has been informed of modifications that would have avoided the alleged infringement by Practo.
6.4 Customer Indemnity. The Customer will defend, indemnify, and hold harmless Practo, its corporate affiliates, or any of its or their respective directors, officers, owners, employees, agents, successors, and permitted assigns from and against any and all third-party claims, suits, proceedings, costs, and expenses (including, without limitation, attorneys’ fees) arising from or related to the Customer’s (a) breach of the confidentiality obligations, breach of intellectual property provisions and breach of representation and warranties provisions herein; (b) violation of any applicable law; and (c) willful misconduct and gross negligence.
7.Limitation of Liability.
IN NO EVENT SHALL PRACTO BE LIABLE TO THE CUSTOMER FOR ANY LOST OR CORRUPTED DATA, DOWNTIME, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, NEGLIGENCE AND (B) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF PRACTO, FOR ALL CLAIMS ARISING OUT OF OR UNDER THIS AGREEMENT, EXCEED THE AMOUNT THAT THE CUSTOMER HAS PAID OR WILL PAY TO PRACTO FOR THE PRACTO SOFTWARE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE MOST RECENT CLAIM.
8.Term and Termination.
8.1 Term. This Agreement will remain in full force and effect for a period of one (1) year unless terminated by the parties in accordance with the provisions mentioned hereunder. This Agreement shall automatically renew for one (1) year periods unless a party expresses his/her/its intention to terminate the agreement by providing sixty (60) days’ notice to the other party prior to the then expiry of the Agreement term.
8.2 Termination for Convenience. Practo shall have a right to terminate this Agreement for convenience by providing thirty (30) days’ prior written notice to the Customer. The Customer can request for termination of his/her/its subscription of the Practo Software at any time by providing sixty (60) days’ prior written notice to the address of Practo mentioned in clause 10.3. During this sixty (60) day period, Practo will investigate and ascertain the fulfilment of any ongoing subscription services or pending dues related to subscription fees or any other fees by the Customer.
8.3 Termination for Cause. Each party reserves the right to terminate this Agreement if the other party breaches a material obligation under this Agreement and such breach remains uncured for a period of thirty (30) days from the date of notification of the non-breaching party.
8.4 Effect of termination. On termination of this Agreement due to the reasons mentioned in Section 8.2 and 8.3 herein above, Practo reserves the right to immediately terminate the subscription of the Practo Software to the Customer. Nothing contained in this Agreement shall restrict Practo’s use of the data or right to publish information made available by the Customer in the public domain through the subscription services or any other platform managed by Practo after the termination or expiry of this Agreement. After a 30 (thirty) day period from the date of termination of the Agreement, Practo shall have no obligation to maintain or provide any Customer data and shall thereafter, unless legally prohibited, delete all Customer’s data in its systems or otherwise in its possession or under its control. In cases where the Customer terminates the subscription voluntarily, it will be the sole responsibility of the Customer to make a copy of their data before terminating the subscription. End-Users data will not be available after termination of subscription in such cases.
9.General.
9.1 Assignment. The Customer may not assign this Agreement or any rights herein without the prior, written consent of Practo.
9.2 Waiver. Failure or delay on the part of a party to exercise any right, power, privilege or remedy hereunder shall not constitute a waiver thereof. A waiver of default shall not operate as a waiver of any other default or of the same type of default on future occasions.
9.3 Notices. All notices and other communications pertaining to this Agreement shall be in writing and shall be deemed to have been given by a party hereto as set forth below and shall either be (a) personally delivered; (b) sent via postage prepaid certified mail, return receipt requested; (c) sent by nationally-recognized private express courier or (d) sent via fax provided that a confirmation copy is sent via one of the other methods described herein. Notices shall be deemed to have been given on the date of receipt if personally delivered or via fax, or two (2) days after deposit via certified mail or express courier. A party may change its address for purposes hereof by written notice to the other in accordance with the provision of this section. The addresses for the parties are as follows:
Practo: 165/5, RPS green, Dollars colony, JP nagar 4th phase, Bangalore, 560076.
Customer: As mentioned in the invoice.
9.4 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, and the parties further agree to substitute for the invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.
9.5 Independent Parties. The parties acknowledge that neither party is an agent or employee of the other party, and that neither party has any authority to bind the other party to any agreement or obligation.
9.6 Governing Law. Subject to the provision on arbitration below, this Agreement and any contractual obligation between Practo and the Customer will be governed by the laws of India. Any dispute, claim or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate, or your use of the Practo Software shall be determined by arbitration in India, before a sole arbitrator appointed by Practo. Arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996. The seat of such arbitration shall be Bangalore. Subject to the above mentioned clause, the courts in Bangalore shall have exclusive jurisdiction over any disputes arising out of or in relation to this Agreement.
9.7 Headings. Paragraph headings have been included in this Agreement merely for convenience of reference. They shall not be considered part of, or be used in interpreting, this Agreement.
9.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same Agreement.
9.9 Survival. The provisions of Sections 2, 3, 4, 5, 6, 7, 8, and 9 shall survive expiration or termination of this Agreement for any reason.
9.10 Entire Agreement. This Agreement and the Exhibits attached hereto constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all proposals, oral or written, all previous negotiations and all previous communications between the parties with respect thereto.
9.11 Practo reserves the right to modify this Agreement at any time without giving Customer any prior notice. Customer’s use of the Practo Software following any such modification constitutes Customer’s agreement to follow and be bound by this Agreement as modified. Any additional terms and conditions, disclaimers, privacy policies and other policies applicable to general and specific areas of the Practo Software or to particular subscription services are also considered as part of this Agreement. By agreeing to these terms, Customer also agrees to the terms of use, which are available at www.practo.com/company/terms.
EXHIBIT A
Practo Software (Ray) Functionality
Ray functionality includes but is not limited to:
- Calendar management, including and not limited to ability to schedule, cancel and re-schedule appointments
- Billing management, including and not limited to ability to create invoices, accept payments
- EMR, including and not limited to the ability to add clinical notes, prescriptions, treatment plans and completed procedures
- Communication center which allows a practice to send bulk SMSs
- Practo.com integrations including
- The ability to get online appointments from practo.com
- The ability to collect feedback from the patients seen in the practice
- The ability to share records digitally with patients
- The ability to write and share articles with the patients seen in the practice.
The above mentioned features are the main features of the Practo Software and is not meant to be exhaustive.
Some of these features may be available only in certain version and in certain plan of the Practo Software which the Customer intends to purchase.
EXHIBIT B
Payments
Practo’s pricing policy mutually agreed by the parties from time to time and as reflected in the invoice.
EXHIBIT C
Practo Share Functionality
Practo Share has been integrated with Practo Software to enable the Customers to electronically share health records which may include but not limited to prescriptions, files, vital signs, immunization plans, growth charts, clinical notes, treatment plans, invoices and payments etc (“Health Records”) which can be accessed by end-users with a free facility ‘Records’ on its mobile application ‘Practo.
The specific terms relating to the Practo Share are as below, without prejudice to the rest of these Terms and the Privacy Policy:
a. Practo shall not:
1. Validate the Health Records and shall not be responsible for any errors in or incompleteness of such Health Records provided by the Customer. The Customer hereby represent and warrant that such Health Records are true and complete;
2. Be responsible for verifying the accuracy or incompleteness of the Health Records provided in the Records and shall not be liable for any errors in the same.
3. Be liable in the event the Health Records are not delivered to the Customer’s patient or customer or are delivered late or not accessed, despite its best efforts.
b. By switching on “Practo Share” setting in the Practo Software, the Customer hereby grants an irrevocable right of ownership to the relevant end-users Health Records to Practo including but not limited to any medical records and information that is classified as sensitive personal information of the patients or customers
c. Practo makes no promise or guarantee for any uninterrupted access of the Records functionality by the Customer’s patients or customers.
d. Practo reserves the right to recall or partially recall any Health Record due to inadvertent or incorrect Health Record shared by the Customer.
e. Practo has the right to communicate and inform end-users without any prior notice to the Customer about the shared Health Records through SMS, email or any other platform on behalf of the Customer.
f. Practo is not responsible for any unintended access of Health Records due to change in phone number of the end user. In the event of any errors or changes in details, the Customer has to inform Practo of the same as soon as you become aware of such errors or changes. It is the Customer’s responsibility to ensure that such patients’ and customers’ mobile numbers and email IDs are correctly provided.
g. The Customer agrees and acknowledges that Practo may need to access, use and store the Health Record for the purposes of the functioning of the Customer’s business and for Practo’s other services.
h. Practo will disclose the Heath Records in the event Practo is required/compelled to make such disclosure by any court order or applicable law.
EXHIBIT D
Add-on functionality
Ray Connect-which is a feature that is beneficial to patients and in turn Clinics:
- Beneficial to patients because:
- they get clinic details over call and SMS – address & timings;
- they can book an appointment for an available slot over call without even talking to receptionist;
- they can connect directly to the doctor in case of emergency; and
- patients can now leave a voice message.
- Beneficial to clinics because:
- place outgoing calls using this feature;
- monitor all incoming/outgoing calls and listen to call recordings;
*This feature is available at a cost and the cost of this feature is as captured in the invoice
*Calls made using Ray connect are transactional in nature