This document form a legally binding agreement between MphRx India Private limited. (‘MphRx’) having its office at Plot no 115,1st floor, Sec 44 Gurgaon and you, the Participating Entity/Hospital/Doctor/Laboratory (‘You’) of the platform Fisike, as defined below, stating the terms that govern Your use of the Fisike, and the overall portal as defined below.
This document is an electronic record in terms of Information Technology Act, 2000 and Rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.
We request you to please read these Terms and Conditions of Use carefully and do not click "sign up" or "start a free trial" or continue the use of Fisike unless you agree fully with these Terms and Conditions of Use. By using the Fisike platform, you signify your agreement to these Terms and Conditions of Use.
If you do not agree to these Terms and Conditions, you are not entitled to use the Services and any use thereafter shall be unauthorized. Please read and accept the terms and conditions of use before using this service. By clicking “Accept” or "sign up" or "start a free trial" or through the continued use of the Fisike platform, You are undertaking legal and binding obligations and conferring legal rights. Accessing the Fisike through any medium, including but not limited to accessing the Fisike through mobile phones, smart phones and tablets, any handheld mobile device or web application flatform are also subjected to these Terms and Conditions of Use.
By using our Services (as defined hereinafter), you: (a) agree to these Terms and Conditions of Use; and (b) represent that: (i) if you are agreeing to these Terms and Conditions of Use on behalf of another person or any legal entity, that you are duly authorized to do so. Your use of the Services after any change in these Terms and Conditions of Use constitutes your assent to these Terms and Conditions of Use as modified. (ii)You accept to the following terms and conditions, and any policies, guidelines or amendments thereto that may be presented to you from time to time.
MphRx through its Mobile Application, Computer Software/Web Application/Platform ‘Fisike’ shall be providing the following services (‘Services’):
MphRx shall be providing these Services through the platform ‘Fisike’ to the Participating Entity/Hospital/Doctor/laboratory or through any other means, whether through telephone, email, application software, etc as the case me be (jointly referred to as “Portal”) provided that they are of a legal age to form a binding contract and are not a person barred from receiving such services under the laws of the country where they are based and/or where the Services are being used and/or where the applicability of law relating to their use of Services may arise.
MphRx shall be providing the ‘Fisike’ services to the Participating Entity/Hospital/Doctor giving them the opportunity to easily reach their patients and access the health/medical records.
Accordingly you the Participating Entity/Hospital/Doctor hereby understand and agree as follows:
1.1. You agree to use the services offered by Fisike only for purposes that are legal, proper and in accordance with the terms and any applicable regulations, policies or guidelines.
1.2. You agree that you shall be responsible for your own conduct and any content, detail or information that you create, transmit or display while using Fisike and for any consequences thereof. You further agree that by creating, detailing or transmitting any content, detail or information using the present Portal, you certify the authenticity, truthfulness and veracity of the said content, detail or information.
1.3. While using Fisike, or while providing review of the services used by you, you agree that you will not:
1.4. You agree that your recording and/or transmitting of any alleged query through the use of Fisike or sharing any information in the database provided shall ipso facto be evidence of their truthfulness and you confirm the correctness and authenticity of the same. You understand that the role of Fisike, through its portal is to maintain records, provide platform between You and your patient(s) and send reminder services entirely based upon the records submitted by You and your patient(s) only. You further understand that information submitted by you may raise issues of privacy, defamation, illegality due to special protection under law etc. Accordingly, the burden is placed on you to analyze and act according to the laws of your country. MphRx and/or Fisike shall not be responsible for any such claims.
1.5. You agree that by using the services of medical practitioners or any other agencies through the portal offering medical or ancillary services as may be amended from time to time on the portal through the portal may expose the patient(s) and others around them to physical harm, caused by negligent action (or inaction) of such medical practitioners or any other agencies. In such an event you shall solely be responsible for all consequences and results thereof. MphRx and/or Fisike shall not be liable for any claim or damages on this account from the patient(s) or any third party.
1.6. You agree that you shall at all times adhere to the applicable laws governing the Medical profession/Medical laboratory including but not limited to medical ethics, prohibition under Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, Indian Medical Act, rules and guidelines framed by Medical Council of India etc.
1.7. You agree that your use of Fisike is subject to verification by MphRx of your identity and credentials as a Hospital/Doctor /approved laboratory/health care practitioner etc. and to your ongoing qualification as such. You agree that we may use and disclose your Personal Information (including but not limited to your name, contact phone number, e-mail address, social network profile/identity etc.) for such purposes, including (without limitation) making inquiry of third parties concerning your identity and professional and practice credentials. You authorize such third parties to disclose to us such information as we may request for such purposes, and you agree to hold them and us harmless from any claim or liability arising from the request for or disclosure of such information. You agree that we may terminate your access to or use of the System and Services at any time if we are unable at any time to determine or verify your qualifications or credentials.
2.1. You acknowledge and agree that the Portal of Fisike and the Services provided through it contain proprietary and confidential information of MphRx and/or any third party and that the same is protected by applicable intellectual property, copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by MphRx and/or Fisike or other proper third party rights holders, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on content, services offered or the application software, in whole or in part except as specifically authorized in a separate written agreement.
2.2. Fisike may include certain third-party software/application/gateway(s) and services, which may require you to enter into separate subscription or licensing agreements with such third-party vendors. Fisike may also make available optional services provided by third parties, including but not limited to billing, electronic prescribing, and clinical laboratory reporting services. You agree to comply with, and upon request to execute, such agreements as may be required for the use of such software/application/gateway(s) and services, and to comply with the terms of any license or other agreement relating to third-party products included in Fisike platform or made accessible to you through Fisike. The use of Fisike or of such third-party products or services will constitute your acceptance and agreement to be bound by the terms of all licensing, subscription and similar agreements relating to such use. In the event Fisike provides any billing services in connection with the services by you to the patient(s), in such events you acknowledge and confirm that Fisike only acts as a collection agent for on your behalf, to facilitate such payment of the amounts by the patient(s) to you.
2.3. Subject to the present terms and conditions of use, Fisike grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Portal and the Services provided by it subject to that you do not (and do not allow any third party) to copy, modify, create any derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the software, unless such activity has been expressly authorized by MphRx and/or Fisike in writing.
2.4. Except as expressly authorized by MphRx and/or Fisike, you agree not to use, copy, imitate, or incorporate any trademark, service mark, trade dress, company name, or product name in a way that is likely to cause confusion among consumers/ other users. You also agree not to remove, obscure, or alter Fisike’s or any third party's copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the present application software.
2.5. You hereby agree that any content, details and/or information provided by you while using the Services shall be stored by us on a secure server and shall be used by us in any manner in order to provide better services and evaluate the services provided by Fisike. To that extent, you grant MphRx and/or Fisike a worldwide, non-exclusive, royalty-free license to use, collate, reproduce, adapt, modify, publish and distribute such content, details and/or information as it deems fit and proper. You understand that while using the aforesaid information to improve the quality of services offered by us, we shall employ highest standard to maintain the secrecy of the information provided by you, however, MphRx and/or Fisike shall not be responsible for any loss/damage caused due to unauthorised access of information and/or leakage of said information due to reasons beyond its control including but not limited to failure of servers and/or security software, hacking etc.
2.6. You further agree that certain confidential data like your name, email id, social network profile/identity, location, etc. as provided by you may also be retained by us by virtue of the use of our Services by you. To that extent, you consent to the collection, processing, transmission and disclosure of such information by MphRx and/or Fisike for such purposes as it deems fit and proper.
2.7. You agree that we may use your Personal and/or confidential data or your patient(s) records to contact your patient(s) on your behalf for which you would be permitted to contact them, including, without limitation:
3.1. The present portal may automatically report version number or other diagnostic information and may automatically download upgrades to the software to update, enhance and further develop the services offered, including providing bug fixes, patches, enhanced functions, missing plug-ins and new versions.
3.2. In connection with your use of the Services, we may send you service announcements, messages, administrative messages, and other information and you expressly agree to receive the same.
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the services offered through the present Portal, use of services offered through the present Portal, or access to services offered through the present Portal except as otherwise expressly provided in the terms or as specifically authorized in a separate written agreement.
MphRx and/or Fisike reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, Services (or any part thereof) with or without notice. You agree that MphRx and/or Fisike shall not be liable to you or to any third party for any modification, suspension or discontinuance of Services.
You agree to hold harmless and indemnify MphRx and/or Fisike, and its affiliates, officers, agents, employees, advertisers, licensors, suppliers or partners, from and against any third party claim arising from or in any way related to your use of Services, Claim by Patient(s), violation of the terms or any other actions connected with use of Services, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature.
7.1. You expressly understand and agree that:
8.1. You expressly understand and agree that Fisike shall not be liable to you and/or patient(s) for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from: (i) the use or the inability to use Services; (ii) the cost of procurement of substitute goods and services resulting from any data, information or services obtained or transmitted through or from Services; or (iii) any other matter relating to Services.
8.2. The product & services being offered by Fisike are currently being released in varying product ranges which may include services that are being offered free of charge or paid features or products through its portal whereby the users of the portals shall have a right to remit such payments and utilize such services. Fisike however, reserve its right to modify, delete, upgrade, degrade any of such features of the product & services including discontinuation of the Services, introduction of paid features and/or paid versions of the Services solely at our discretion and without notice.
8.3. You agree that you will implement and maintain appropriate administrative, physical and technical safeguards to protect information within your hardware/mobile devise/handheld device from access, use or alteration from your use of Fisike; and you will always use the User ID assigned to you or your organisation. Such safeguards shall comply with applicable law and/or government regulations, including the privacy rule and the security rule, whether or not you are otherwise subject to HIPAA. You will maintain appropriate security with regard to all personnel, systems, and administrative processes used by you or your organisation to transmit, store and process electronic health information through the use of Fisike and You expressly understand and agree that Fisike shall not be liable to you and/or patient(s) for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses on account of your failure to maintain the said safeguards.
You agree that, except as otherwise expressly provided in the terms, there shall be no third party beneficiaries to the terms.
10.1. Entire agreement. The terms (including any policies, guidelines or amendments that may be presented to your form time to time) constitute the entire agreement between you and MphRx and/or Fisike and govern your use of Services, superseding any prior agreements between you and MphRx and/or Fisike for the use of Services.
10.2. Choice of law and forum. The terms and the relationship between you and MphRx and/or Fisike shall be governed by the laws of India without regard to any conflict of law provisions. You and MphRx and/or Fisike agree to submit to the personal and exclusive jurisdiction of the courts located within the state of New Delhi, India.
10.3. Arbitration. Any dispute, claim or controversy arising out of or in relation to the present agreement, including but not limited to the determination of the scope or applicability of these terms and conditions of use shall be determined by arbitration to be presided over by a sole arbitrator to be appointed by MphRx. The arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 as amended from time to time. The place and seat of the arbitration shall be New Delhi. The proceedings shall be held in English language. The award passed by the sole arbitrator shall be final and binding on the parties.
10.4. Waiver and severability of terms. The failure of MphRx and/or Fisike to exercise or enforce any right or provision of the terms shall not constitute a waiver of such right or provision. If any provision of the terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the terms remain in full force and effect.
You hereby expressly acknowledge that you have read the aforesaid terms and conditions of use and understand the rights, obligations, terms and conditions set forth herein. By use of Fisike, you expressly consent to be bound by its terms and conditions and grant to MphRx and/or Fisike the rights as set forth herein.