IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, DOCTOR, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP OR ANY OTHER ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
Services offered by HealthcareNow are subject to the terms of our website/platform, policies [i.e. Terms of Use, Privacy Policy, Cancellation and Refund Policy etc.] (“Policies”), available at ‘https://www.healthcarenow.in/’ (“Website”). By contacting HealthcareNow for the services or availing the services or by registering with us or by accepting this Agreement, now or in the future, you being the person or entity placing an order for or accessing the Service (“Subscriber” or “Customer” “you”, “your”, “yourself” or “user”) signify that you agree to these Terms of the Agreement (“Terms”) and the Policies.
Agreement”), is entered into by and between HealthcareNow and You.
1.1. "Affiliates" shall mean any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Agreement” means this Master Subscription Agreement, including the Service Level Agreement, Data Processing Agreement, Security Agreement, and any other exhibits, addenda, or attachments hereto, and any fully executed Order Form.
1.3. "Authorised User" shall mean an individual user for whom a user license has been purchased by Subscriber pursuant to the terms of the Invoice and this Agreement, and to whom unique user credentials have been given to access HealthcareNow Platform.
1.4. "Confidential Information" shall mean all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. HealthcareNow’s Confidential Information shall include the terms of this Agreement and all Invoices (including all non-public pricing information). Confidential Information of each party shall include (without limitation) the business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information shall not include any information that (i) is or becomes generally known to the public without breach of obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without the use of Disclosing Party's Confidential Information.
1.5. “Subscriber Data” means electronic data or information submitted to the HealthcareNow Platform by Subscriber.
1.6. “Subscriber Input” means suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, its Employees relating to the operation or functionality of the HealthcareNow Platform.
1.7. "Documentation" shall mean the user manuals and documentation(s), whether in written or electronic form, provided by HealthcareNow to the Subscriber from time to time detailing the features, functionalities and operation of the HealthcareNow Platform.
1.8. “Employee” or “Worker” means employees, consultants, contingent workers, independent contractors, and retirees of Subscriber and its Affiliates, whether actively employed or terminated, whose business record(s) are or may be managed by the Service and for whom a subscription to the Service has been purchased in an Order Form.
1.9. “Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service and Documentation, as developed by HealthcareNow and made generally available for Production use without a separate charge to Subscribers.
1.10. “Intellectual Property” or “IP” shall mean all intellectual property (whether registered or not) including but not limited to patents, designs, literary work, artistic work, audio, video, any translations, adaptations, computer programme and/or any other works, materials, software, source, executable or object code, documentation, methods, apparatus, systems and the like, any copyrightable/patentable material, trade secrets and all trademarks and trade names and any other materials that can be protected under existing or future intellectual property rights in India or any other applicable jurisdiction.
1.11. “Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights in the IP issued, honoured or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
1.12. “Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to the respective party.
1.13. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents, bots or programs.
1.14. “Order Form” means the ordering documents under which Subscriber subscribes to the Service which is fully executed pursuant to this Agreement.
1.15. “Personal Data” has the definition set forth in the Exhibit 2.
1.16. “Production” means the Subscriber’s use of or HealthcareNow’s written verification of the availability of the Service (i) to administer Employees; (ii) to generate data for Subscriber’s books/records; or (iii) in any decision support capacity.
1.17. “Security Breach” means (i) any actual or reasonably suspected unauthorized use of, loss of, access to or disclosure of, Subscriber Data; provided that an incidental disclosure of Subscriber Data to an Authorized Party or HealthcareNow , or incidental access to Subscriber Data by an Authorized Party or HealthcareNow , where no reasonable suspicion exists that such disclosure or access involves theft, or is fraudulent, criminal or malicious in nature, shall not be considered a “Security Breach” for purposes of this definition, unless such incidental disclosure or incidental access triggers a notification obligation under any applicable Law and (ii) any security breach (or substantially similar term) as defined by applicable Law.
1.18. “HealthcareNow Platform” means HealthcareNow’s software-as-a-service applications as described in the Documentation and subscribed to under an Order Form.
1.19. "Non-HealthcareNow Services" shall mean third party applications, services, software, networks, systems, websites or databases that are integrated with the HealthcareNow Platform to interoperate with the HealthcareNow Platform.
1.20. "Invoice" shall mean the document evidencing a subscription to HealthcareNow Services that specifies the description of services subscribed, subscription plan, Subscription Period, number of user licenses purchased and applicable fees.
1.21. “Subscriber Data” shall mean electronic data and information submitted to and stored within the HealthcareNow Platform by the Subscriber or an Authorized User as a result of Subscriber’s or Authorised User's use of the HealthcareNow Platform.
1.22. “Subscription Period(s)” shall mean, in respect of each of the HealthcareNow Platform, the duration of validity of each fee-based subscription plan purchased by Subscriber.
1.23. "Usage Limits" shall mean the limits on use of each of the HealthcareNow Platform corresponding to the fee-based subscription plan purchased by the Subscriber.
1.24. "Taxes" shall mean all taxes, duties, levies, imposts, fines or similar governmental assessments, including sales and use taxes, value-added taxes, goods and services taxes, excise, business, service, and other similar transactional taxes imposed by any local, state, provincial or foreign jurisdiction and include the interest and penalties thereon.
1.25. "Terms of Service" shall mean the terms and conditions available for access and use of the HealthcareNow Platform, as modified from time to time.
2. Platform usage, Restrictions and Responsibilities.
2.1. Rights Granted. Subject to the terms and conditions of this Agreement, HealthcareNow will make the HealthcareNow Platform available to Subscribers for the Subscription Period as set out in the Invoice. HealthcareNow grants Subscriber a revocable, non-exclusive, non-transferable right and limited license to access, use and, where applicable, download the HealthcareNow Platform during such Subscription Period for Subscriber’s internal business purposes. If the Subscriber exceeds the Usage Limits of the HealthcareNow Platform or functionalities within the HealthcareNow Platform, Subscriber may purchase additional quantities of the HealthcareNow Platform by making payment(s) for such excess usage.
2.2. Usage Restrictions. Subscriber shall not and shall not permit its Authorised Users to:
a. copy, modify, create derivative works or otherwise attempt to gain unauthorised access to the HealthcareNow Platform.
b. except as permitted under applicable law, attempt to disassemble, reverse engineer or decompile the HealthcareNow Platform.
c. use the HealthcareNow Platform on behalf of any third party or include the HealthcareNow Platform as part of service bureau or provide any business process service.
d. use the HealthcareNow Platform in any manner that interferes with or disrupts the integrity, security or performance of the HealthcareNow Platform, its components and the data contained therein.
e. sell, resell, license, sublicense, rent, lease, transfer, assign or otherwise make the HealthcareNow Platform available to any third-party without an Authorised User subscription.
f. use the HealthcareNow Platform to send or store material containing software viruses, worms or other harmful computer codes, files, scripts or programs.
g. Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
h. use the HealthcareNow Platform to store or transmit any material that is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libellous, or violates any third party rights
i. permit direct or indirect access to or use of the HealthcareNow Platform in a way that circumvents the Usage Limits.
j. use the HealthcareNow Platform in any manner that could damage, disable, overburden, impair or harm any server, network, computer system, or resource of HealthcareNow.
k. allow Authorised User licenses to be shared or used by more than one individual other than by way of reassigning the user license to a new user.
l. remove or obscure any proprietary or other notices contained in the HealthcareNow Platform.
m. attempt to gain unauthorized access to the HealthcareNow Platform (including features and functionality) or its related systems or network.
n. use the HealthcareNow Platform for any form of competitive or benchmarking purposes.
2.3. Subscriber Responsibilities. Subscriber shall be responsible for (i) providing accurate, current and complete information regarding the Subscriber in connection with Subscriber's access and use of the HealthcareNow Platform; (ii) Authorized Users' compliance with the Agreement, Documentation and Invoice; (iii) accuracy, quality and legality of the Subscriber Data; (iv) means by which the Subscriber Data was acquired and Subscriber's use of the Subscriber Data; (v) using commercially reasonable efforts to prevent unauthorised access to or use of the HealthcareNow Platform; (vi) using the HealthcareNow Platform in accordance with this Agreement, Documentation and Invoice; (vii) all activities that occur under Subscriber's account; and (viii) compliance with all applicable laws and regulations;.
3. Fees and Payments
3.1. Fees: Subscriber will pay to HealthcareNow, without any deductions, the fees set forth in the applicable Invoice. Except as otherwise specified in the Agreement, all payment obligations are non-cancellable and all amounts paid are non-refundable whether or not the HealthcareNow Platform is actively being used. Additional charges will apply for additional purchases or usage in excess of the purchased subscription(s). All pricing terms provided for the Subscriber are confidential and Subscriber agrees not to disclose them to any third party without HealthcareNow’s prior written authorization.
3.2. Invoicing and Payment: Payments for Subscription Period of less than one (1) year shall be made through HealthcareNow's online store using a credit card or online banking facilities. Offline or manual payment options are not entertained. The Subscription Period will commence only upon receipt of payment or a purchase order acceptable to HealthcareNow. Subscriber shall be responsible for providing complete and accurate payment information to HealthcareNow. Subscriber shall promptly update any change in the billing information. If a purchase order raised by the Subscriber is accepted by HealthcareNow, the payment must be made by the Subscriber within fifteen (15) days from the receipt of an invoice by email, unless otherwise stated in the Invoice.
3.3. Overdue Payments. Undisputed overdue payments shall bear interest at the rate of one (1)% per month or the maximum rate allowed under applicable law. Subscriber acknowledges and accepts that non-payment of any undisputed fees within the term defined in the applicable Invoice constitutes a material breach of this Agreement and that HealthcareNow shall have the right to: (i) block and/or suspend the access to the HealthcareNow Platform until all such due and undisputed amounts and applicable interests, if any, have been paid; and/or (ii) terminate the Agreement as specified under Term and termination clause of this Agreement.
3.4. Payment Disputes: In the event Subscriber has any disputes with regard to the invoice raised by HealthcareNow, then the Subscriber shall raise the same within five (5) business days from the date of receipt of invoice. Subscriber shall not be considered to have defaulted on Subscriber's payment obligations under this Section, if the Subscriber (i) has disputed the fees in good faith in accordance with clause 3.6and is co-operating diligently to resolve the dispute; and (ii) remits payment for any undisputed amounts in a timely manner.
3.5. Taxes: Subscriber shall be responsible for paying the Taxes in addition to the fees applicable for the HealthcareNow Platform as specified in the Invoice. If the Subscriber is withholding Taxes, Subscriber shall pay the withholding Tax directly to the appropriate government entity and shall furnish a tax certificate to HealthcareNow evidencing such payment within hundred (100) days of making such payments. In the event of a failure to furnish the tax certificate within the timer period specified herein, the concerned tax amount shall be fortified by HealthcareNow.
3.6. Pricing: HealthcareNow reserves the right to unilaterally determine and modify its pricing for the HealthcareNow Platform. Where an Invoice is in effect, the pricing for the HealthcareNow Platform shall remain as agreed for the term specified in such Invoice.
4. Availability and Technical Support
4.1. HealthcareNow will make the HealthcareNow Platform available to the Subscriber pursuant to the terms of this Agreement, applicable Invoice and Documentation. HealthcareNow shall use commercially reasonable efforts to make the HealthcareNow Platform available 24 hours a day, 7 days a week and honour the Monthly Uptime Commitment as set forth in Exhibit 1, except during: (i) Scheduled Downtime, and (ii) Force Majeure Events.
4.2. HealthcareNow will provide product support to the Subscriber according to the timeframe specified in Exhibit 1.
5. Privacy and Security
5.1. Privacy. To the extent that Personal Information (as defined under the Exhibit 2) is processed by HealthcareNow when Subscriber uses the HealthcareNow Platform, HealthcareNow shall comply with applicable legal requirements for privacy, data protection and confidentiality. HealthcareNow’s processing of Personal Information will, at all times, be compliant with Exhibit 2 of this Agreement. Exhibit 2 explains how HealthcareNow will, (i) process Personal Information; (ii) use third party service providers who process Personal Information on HealthcareNow’s behalf; (iii) assist Subscriber to handle data subject requests; (iv) handle Security Incidents; (v) accommodate an audit request from Subscriber; (vi) ensure that its personnel maintain confidentiality and security of Personal Information; and (vii) handle return or deletion of Personal Information.
5.2. Security. HealthcareNow has implemented and will maintain industry-standard administrative, technical, and physical safeguards to reasonably protect the security, confidentiality and integrity of the Subscriber Data as described in Exhibit 3 of this Agreement. HealthcareNow will periodically review and update its security practices to address new and evolving security threats and to implement evolving security technologies and industry standard practices. HealthcareNow warrants that no modification to the security practices will materially degrade the security of the HealthcareNow Platform.
6. Proprietary Rights and Licenses
6.1. Reservation of Intellectual Property Rights. As between the Parties to this Agreement, HealthcareNow retains all the rights, title and interest in and to the HealthcareNow Platform and Documentation, including all related Intellectual Property Rights. Except as expressly stated herein, this Agreement does not grant any additional rights or licenses to the Subscriber in the HealthcareNow Platform or in any intellectual property rights of HealthcareNow. The Subscriber agrees and acknowledges that unless as provided herein this Agreement, any other use of the HealthcareNow Platform shall constitute a material breach of this Agreement and an infringement under applicable laws. Such material breach or infringement shall cause HealthcareNow irreparable loss and damage. Therefore, in addition to and without limitation to the rights provided herein this Agreement, HealthcareNow shall have the right to recover damages and injunctive relief under applicable laws.
6.2. License to use Suggestion and Feedback. Subscriber grants to HealthcareNow a fully paid-up, royalty free, worldwide, sub-licensable, assignable, irrevocable and perpetual license to use and incorporate into the HealthcareNow Platform any idea, suggestion for enhancement, recommendation, correction or other feedback provided by Subscriber to HealthcareNow in connection with such Subscriber’s use of the HealthcareNow Platform.
6.3. Subscriber Input. Subscriber Input is defined as any information subscriber may have provided HealthcareNow as an idea, feature request, enhancement or bug-fix on HealthcareNow product offerings to HealthcareNow. HealthcareNow shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any Subscriber Input. HealthcareNow shall have no obligation to make Subscriber Input an Improvement. Subscriber shall have no obligation to provide subscriber Input.
6.4. Statistical Data Use. HealthcareNow has exclusive rights to use the statistical data derived from the operation of the Service, including, without limitation, the number of records in the Service, the number and types of transactions, configurations, and reports processed in the Service and the performance results for the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting HealthcareNow from utilizing the Aggregated Data for purposes of operating HealthcareNow’s business, provided that HealthcareNow’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Service. In no event does the Aggregated Data include any personally identifiable information or corporate identifiable information.
6.5. Use of name: In connection with any literature of an advertising or similar nature, HealthcareNow’s name shall not be used or quoted without the prior written permission of HealthcareNow. HealthcareNow may use the fact of its involvement with the Subscriber in this Agreement in its credentials, proposals and publicity material subject to applicable law and professional regulations. The Customer agrees to such use and HealthcareNow may, on the Subscriber’s specific request, share samples of such use.
7. Confidentiality
7.1. Confidentiality Obligations. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for the purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those contained herein. Any exchange of Confidential Information prior to the execution of this Agreement shall continue to be governed by any non-disclosure agreement executed by and between the parties and not the terms of this Agreement. All copies of Confidential Information, regardless of form, shall, at the discretion of the Disclosing Party, either be destroyed or returned to the Disclosing Party, promptly upon the earlier of: (i) Disclosing Party’s written request, or (ii) expiration or termination of this Agreement for any reason.
7.2. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party (i) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (ii) as reasonably necessary to comply with any applicable law or regulation; or (iii) as necessary to establish the rights of the Receiving Party, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. Any such disclosure shall be limited to only what is required and shall be subject to the confidentiality obligations to the extent reasonably practicable.
8. Representations, Warranties and Disclaimers
8.1. Mutual Representation. Each party represents and warrants to the other party that it is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority, and is duly authorized, to enter into the Agreement and to carry out the provisions thereof.
8.2. Warranty by HealthcareNow. HealthcareNow warrants that during an applicable Subscription Period (i) the HealthcareNow Platform will perform materially in accordance with the Documentation when Subscriber uses the HealthcareNow Platform in accordance with such Documentation; (ii) HealthcareNow will, at a minimum, implement safeguards for protection of the security, confidentiality and integrity of Subscriber Data, as set forth in DPA of this Agreement; (iii) HealthcareNow will not materially decrease the overall functionality of the HealthcareNow Platform. In case of any breach of warranty listed in this Section, the Subscriber shall be entitled to sole and exclusive remedies against HealthcareNow as described in Sections 11.2. and 11.3. of this Agreement
8.3. Warranty Disclaimer. Subscriber understands and agrees that the use of the HealthcareNow Platform is at subscriber's sole risk. Except as expressly provided herein, HealthcareNow Platform is provided on an "as is" and "as available" basis, without any warranties of any kind. Except for warranties specified in this agreement, HealthcareNow disclaims warranties of all kinds, including, but not limited to, the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. HealthcareNow further disclaims warranties that the HealthcareNow Platform will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software. No advice or information obtained by subscriber from HealthcareNow or from any third party shall create any warranty not expressly stated in this agreement. The foregoing exclusions and limitations shall apply to the maximum extent permitted by applicable law, even if remedy fails its essential purpose.
9. Indemnification
Indemnification by HealthcareNow
9.1. HealthcareNow shall defend Subscriber , at HealthcareNow’s expense, from claims, demands, suits, or proceedings made or brought against Subscriber by a third party (“Claims”) alleging that the use of the HealthcareNow Platform as contemplated hereunder infringes such third party’s Intellectual Property Rights and shall indemnify and hold Subscriber harmless against any loss, damage or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, “Losses”); provided that Subscriber : (a) promptly gives written notice of the Claim to HealthcareNow (although a delay of notice will not relieve HealthcareNow of its obligations under this section except to the extent that HealthcareNow is prejudiced by such delay); (b) gives HealthcareNow sole control of the defense and settlement of the Claim (although HealthcareNow may not settle any Claim unless it unconditionally releases Subscriber of all liability); and (c) provides to HealthcareNow, at HealthcareNow's cost, all reasonable assistance. HealthcareNow shall have no liability for Claims or Losses to the extent arising from: (d) modification of the HealthcareNow Platform by anyone other than HealthcareNow; (e) use of the HealthcareNow Platform in a manner inconsistent with the Agreement or Documentation; or (f) use of the HealthcareNow Platform in combination with any other product or service not provided by HealthcareNow If Subscriber is enjoined from using the HealthcareNow Platform or HealthcareNow reasonably believes it will be enjoined, HealthcareNow shall have the right, at its sole option, to obtain for Subscriber the right to continue use of the HealthcareNow Platform or to replace or modify the HealthcareNow Platform so that it is no longer infringing. If neither of the foregoing options is reasonably available to HealthcareNow , then the Agreement may be terminated at either party’s option and HealthcareNow’s sole liability, in addition to the indemnification obligations herein, shall be to refund any prepaid fees for the HealthcareNow Platform that was to be provided after the effective date of termination.
Indemnification by the Subscriber
9.2. Subscriber agrees to indemnify and hold harmless HealthcareNow , its directors, officers, employees, affiliates, agents and representatives from and against, including but not limited to, any and all claims, damages, liabilities, fines, penalties, costs and expenses (including reasonable attorneys' fees) to which HealthcareNow may be subjected as a result of Subscriber's, its employee’s or agent’s (i) business operations, including, without limitation, Subscriber employee claims, (ii) any act or omission to act which constitutes a breach of this Agreement, or (iii) performance hereunder in a manner that is negligent, grossly negligent, reckless, or improper.
9.3. Subscriber recognizes that HealthcareNow will be irreparably harmed by a violation of Subscriber’s confidentiality, non-use or other obligations hereunder. Therefore, in addition to any other available remedies, HealthcareNow is entitled to an injunction or other decree of specific performance with respect to any violation thereof by Subscriber.
10. Limitation of Liability
Under no circumstances and under no legal theory, whether tort, contract, product liability, negligence or otherwise, shall HealthcareNow or its affiliates be liable to you or any other affiliate or third party for any lost profits, lost sales or lost revenue, loss of data, business interruption, loss of goodwill or for any indirect, special, incidental, exemplary, consequential or punitive damages, even if a party or its affiliates have been advised of the possibility of such damages. In no event shall the liability of either party to the other party or its affiliates, for any claim or action arising out of this agreement, exceed the value of 10% of aggregate of all amounts paid by the Subscriber to HealthcareNow in the twelve (12) months preceding the first event giving rise to such claim or action. The limitations specified herein will not limit Subscriber’s obligation to pay fees in accordance with this agreement.
11. Term and Termination
11.1. Term. The term of this Agreement shall commence on the Effective Date and shall thereafter continue for the duration of the Subscription Period of the relevant Invoice, unless terminated in accordance with the provisions of this Section. Except as otherwise specified in the Agreement or Invoice, subscriptions will automatically renew for additional terms equivalent to the expiring Subscription Period.
11.2. Termination for cause. A party may terminate this Agreement for cause : (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of the creditors.
11.3. Termination by HealthcareNow : HealthcareNow shall be entitled to terminate this Agreement forthwith upon giving written notice of thirty (30 days) to the subscriber if it: (i) enters an agreement with creditors without authorisation HealthcareNow and/or steps have been taken for its winding up (other than for the purposes of bona fide reconstruction); (ii) has reasonable grounds to suspect that it has participated in illegal practices and/or acts or been charged in a court of law acts in a manner prejudicial to the interests of HealthcareNow; (iii) commits misconduct, fraudulent, dishonest, undisciplined conduct or breach of integrity or embezzlement or misappropriation or misuse or causing damage to the Software and other property of HealthcareNow; (iv) misrepresents, makes false statements and breaches the representations and warranties under the Agreement; and (v) ceases or threatens to cease to carry on business.
11.4. Termination for Convenience: Notwithstanding any other provision in this Agreement, HealthcareNow shall at its absolute discretion be entitled to terminate this Agreement without provision of reasons by giving at least 30 (thirty) days prior written notice to the other Party.
11.5. Refund. Upon termination for cause by Subscriber, HealthcareNow shall not refund Subscriber any prepaid fees covering the unused portion of the Subscription Period. Upon any termination for cause by HealthcareNow, Subscriber shall expedite all payments due to HealthcareNow and in no event will termination of this Agreement relieve Subscriber of its obligation to pay any fees due to HealthcareNow . Notwithstanding anything contained herein, in the event Subscriber terminates the Agreement except as mentioned in Section 11.2 of the Agreement, HealthcareNow is under no obligation to refund the fees paid by the Subscriber.
11.6. Retrieval of Subscriber Data. Upon Subscriber’s written request made on or prior to expiration or termination of the Agreement, HealthcareNow will give Subscriber limited access to the HealthcareNow Platform for a period of up to thirty (30) days, at no additional cost, solely for purposes of retrieving Subscriber Data. Subject to such thirty day period and HealthcareNow’s legal obligations, HealthcareNow has no obligation to maintain or provide any Subscriber Data and may, unless legally prohibited, delete Subscriber Data; provided, however, that HealthcareNow will not be required to remove copies of the Subscriber Data from its backup media and servers until such time as the backup copies are scheduled to be deleted.
12. General
12.1. Applicability of Terms of Service. Subscriber understands that, in addition to the terms of this Agreement, HealhcareNow 's Terms of Service will apply to Subscriber's access and use of the HealthcareNow Platform. In the event of any conflict between this Agreement and the Terms of Service, the terms of this Agreement shall prevail.
12.2. Entire Agreement. This Agreement, including the Exhibits attached hereto and the Terms of Service, constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes any and all prior and contemporaneous agreements, negotiations, correspondence, understandings and communications between the parties, whether written or oral, concerning the subject matter hereof.
12.3. Amendment. No changes, modifications or amendment of any nature made to this Agreement shall be valid unless evidenced in writing and signed for and on behalf of both parties by the respective authorized representatives.
12.4. Governing Law and Jurisdiction. This Agreement shall be governed by and construed strictly in accordance with the laws of India (excluding the rules governing conflict of laws). Any dispute arising out of or resulting from this Agreement shall be subject to the exclusive jurisdiction of courts in Hyderabad to the exclusion of all other courts.
12.5. Notices. All notices required under this Agreement shall be in writing and shall be sent to the respective address set forth below. Any such notice may be delivered by hand, by overnight courier, by registered post or certified mail with return receipt requested, or by electronic mail to the person to whom such notice is to be sent as per the terms of this Agreement. Such notice shall be deemed to have been received: (i) by hand delivery, at the time of delivery; (ii) by overnight courier, on the succeeding business day; (iii) by registered post or certified mail, on the date marked in proof of receipt; and (v) by electronic mail, when sent. All notices shall be sent to: Legal Team on support@HealthcareNow.com
12.6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither party shall have the power to bind the other or incur obligations on the other party's behalf without the other party's written consent.
12.7. Assignment. Neither party shall assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). . Any attempt by a party to assign its rights or obligations under this Agreement other than as permitted by this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.8. Affairs of the Parties: It has been explicitly agreed between the Parties that at any time within the term of this Agreement, the Subscriber undergoes one of the following including the sale of the company/entity, then the Subscriber shall have the sole unconditional rights, among others, to:
1. Change in the management;
2. Change in the corporate name or brand name or trademark
3. Restructuring;
4. Acquisition and merger
5. Any Private Equity or Loan infusion into the Party
HealthcareNow will not interfere or raise any objections in or under the above circumstances, provided that the Subscriber shall ensure that the rights of HealthcareNow under this Agreement are not adversely affected or curtailed by virtue of such an event. The existence of the Agreement or/and rights of HealthcareNow under this Agreement shall not be affected in any manner and the Subscriber shall ensure the same terms and conditions are carried through the Term of the Agreement. If the Agreement terminates or any rights of HealthcareNow are adversely effected due to any of the above circumstances as laid down under this clause above, then the defaulting party, i.e., the Subscriber shall indemnify HealthcareNow and compensate it from any loss or expenditure that HealthcareNow incurs.
12.9. No Third Party Beneficiaries. The provisions of this Agreement shall be binding and inure solely to the benefit of the parties, their successors, and permitted assigns. Nothing herein, whether express or implied, will confer any right, benefit or remedy upon any person or entity other than the parties, their successors and permitted assigns.
12.10. Force Majeure. No Party shall be liable to the other if, and to the extent, that the performance or delay in performance of any of its obligations under this Agreement is prevented, restricted, delayed or interfered with, due to circumstances beyond the reasonable control of such Party, including but not limited to, Government legislations, fires, floods, explosions, epidemics, accidents, acts of God, wars, riots, strikes, lockouts, or other concerted acts of workmen, acts of Government. The Party claiming an event of force majeure shall promptly notify the other Party in writing and provide full particulars of the cause or event and the date of first occurrence thereof, as soon as possible after the event and also keep the other Party informed of any further developments. The Party so affected shall use its best efforts to remove the cause of non-performance, and the Parties shall resume performance as soon as such cause is removed.
1.1. "Affiliates" shall mean any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" for the purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
12.11. Severability. Any provision of this Agreement, which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. Accordingly, this Agreement shall be construed as if such portion had not been inserted and the remaining provisions of this Agreement shall remain in full force and effect.
12.12. Waiver. Except as otherwise provided in this Agreement, failure on the part of either Party to exercise any right hereunder or to insist upon strict compliance by the other Party with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such right, term, covenant or condition.
12.13. Interpretation. No provision of this Agreement shall be construed against one party by reason of being deemed the "author" of the Agreement. The headings used in this Agreement are for convenience only and shall not affect the interpretation of the terms of this Agreement.
