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PLEASE CAREFULLY GO THROUGH THESE TERMS OF SERVICE. YOU INDICATE YOUR ACCEPTANCE OF THIS
AGREEMENT BY AFFIXING YOUR SIGNATURE TO THE AGREEMENT OR BY CLICKING A CHECK BOX OR BUTTON. BY
ACCEPTING THIS AGREEMENT, YOU AGREE TO ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON
BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND
SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.
Qikwell reserves the right to modify or terminate any portion of the Agreement for any reason
and at any time, and such modifications shall be informed to you in writing. You should read
the Agreement at regular intervals. Your providing of Services following any such modification
constitutes your agreement to follow and be bound by the Agreement so modified.
You acknowledge that you will be bound by this Agreement for providing any of the Services. If
you do not agree with any part of the Agreement, please do not use the Website or avail any
Services.
The Agreement is published in compliance of, and is governed by the provisions of
applicable Indian law, including but not limited to:
the Indian Contract Act, 1872; and
the (Indian) Information Technology Act, 2000.
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DEFINITIONS
"Applicable Law" means such enactments, rules, regulations, ordinances, judicial or
quasi-judicial orders that are applicable to each Party’s obligations hereunder;
"Customer Data" means all information relating to the User, whether collected, processed,
generated or stored pursuant to the transactions envisaged herein, including all information
pertaining to the Sample(s) and the Diagnostic Report(s);
"Diagnostic Partner" shall mean you or the company/entity/person engaging with Qikwell
for providing services by agreeing to this Agreement.
"Diagnostic Report" means the finding as arrived at by the Diagnostic Partner in relation
to the Sample(s) that is printed on the letter head of the Diagnostic Partner and is
authenticated (including by physical signature) by an appropriate healthcare professional as
per applicable laws.
"Employer Entity" shall mean the entity/organization with which Qikwell has entered into
an arrangement, to provide diagnostic services to the employees of such entity/organization, at
its cost.
"Insertion Order/IO" means the form evidencing an order for the Services submitted online
or in written or electronic form, specifying, among other things, the Services, the Effective
Date, the Tenure, the applicable Fees, the billing period, and other charges, each such
Insertion Order is automatically incorporated into and becomes a part of this Agreement.
"Party" or "Parties" shall mean Qikwell and Diagnostic Partner, individually or
together, as the context warrants.
"Sample" means blood, urine, stool or such other human physiological matter that are
utilized by the Diagnostic Partner to render the Services hereunder;
"Services" means undertaking of the radiology tests and diagnosis of Samples, generating
and transmission of Diagnostic Report and to carry out all such actions which shall be included
within this Agreement
"User" means the natural individual to whom the Sample relates to; "User" shall include:
(i) such individual’s caretaker, family member or individual authorized by him/her where he/she
is physically not capable of carrying out the steps required of him/her pursuant hereto; and
(ii) employees, agents, consultants of the Employer Entity, as the case maybe.
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SERVICES
- The Diagnostic Partner shall render the Services that shall be mutually agreed upon and set
out in the IO. The Diagnostic Partner shall carry out the Services in general workmanlike
manner using good industry practices that are generally acceptable form a diagnostic centre
of similar size and scale as the Diagnostic Partner and in accordance with customary
practices and means.
- The Diagnostic Partner shall maintain its equipment in good working condition and in
accordance with such standards and specifications including in relation to hygiene,
cleanliness and safety that are in accordance with standard prescribed under Applicable Law
and as are appropriate given the nature of Services. The Diagnostic Partner shall provide
immediate notification in writing to Qikwell in case it is not able to provide its Services
(in part or whole) due to any deficiency, damage or other material adverse effect in
relation to the equipment.
- The Diagnostic Partner shall throughout the Tenure obtain and maintain the certification
and to that end take all steps necessary to ensure that the standards and specifications
necessary for the validity and subsistence of the certifications are duly complied with.
The Diagnostic Partner shall provide immediate notification in writing to Qikwell in case
of any change in the status or nature of the certifications, including any downgrading or
adverse remarks therefor.
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PRICING, FEES & INVOICING
- The Services will be charged by the Diagnostic Partner as per the rates as agreed upon and
laid out in the IO and as per the invoicing schedule set out thereto.
- The fees payable under this Agreement by Qikwell to the Diagnostic Partner will be
inclusive of all taxes, duties, levies or cess chargeable thereon. The Diagnostic Partner
acknowledges that Qikwell shall withhold from the fees payable to it such tax amount as may
be required under Applicable Law.
- Diagnostic Partner will raise invoices every month for the charges payable by Qikwell for
the services rendered to the Users in the previous month, and Qikwell shall pay the amount
within fifteen (15) business days thereof.
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DATA STORAGE AND OWNERSHIP
- The Parties agree and acknowledge that between them, Qikwell shall have proprietary rights
to all Customer Data as well as any information generated by or processed pursuant to
Qikwell receiving the Services hereunder ("Qikwell Data"). Nothing in this Agreement
authorizes the Diagnostic Partner to utilize Qikwell Data in any manner except as
specifically approved by Qikwell in writing.
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INTELLECTUAL PROPERTY
- Each Party owns all proprietary rights in all materials, tools, documents, applications,
programs, platforms, systems, marks, logo, brand name, trade name ("Proprietary Materials")
used by it in order to render its respective obligations hereunder.
- Qikwell hereby licenses and authorizes the Diagnostics Partner to use its and/or its
affiliates logos, marks, brand design and trade names ("Qikwell Logo") solely for
the purpose of use and incorporation in to the Diagnostic Report in the manner as
prescribed in writing by Qikwell. The Parties agree and acknowledge that the term Qikwell
Logo could include marks, trade names and logos which are proprietary to any of the group
entities of Qikwell.
- Unless expressly set out in writing, no Party extends any license, authorization or right
in relation to its own Proprietary Materials to the other.
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CONFIDENTIALITY
- The receiving Party ("Receiving Party") shall exercise the highest degree of care in
safeguarding the Confidential Information (as defined below) of the disclosing Party ("Disclosing
Party") against any and all loss, theft or other inadvertent disclosure and, except
as necessary to perform his duties under this Agreement and shall not disclose, transfer or
in any way divulge, directly or indirectly, any of the Confidential Information, under any
circumstances or by any means, to any third party without the prior written consent of the
Disclosing Party. The Receiving Party shall not use any of the Confidential Information for
any purpose other than in relation to the Services. The Receiving Party may disclose the
Confidential Information solely to its affiliates, subsidiaries or parent corporation and
such of its employees, directors, officers, contractors, attorneys, accountants and
financial advisors (the "Representatives") on a need to know basis and who are bound
by similar obligations of confidentiality that are as restrictive as the terms of this
Agreement. The Receiving Party will be responsible for the observance of and for any breach
of this Agreement by its Representatives.
"Confidential Information" shall mean any and all information related to any aspect of
the Disclosing Party’s business which is either information not known by actual or potential
competitors of the Disclosing Party or is proprietary information of the Disclosing Party,
whether of a technical nature or otherwise. Confidential Information includes, but is not
limited to, inventions, ideas, designs, computer programs, circuits, schematics, formulas,
algorithms, trade secrets, works of authorship, mask works, developmental or experimental work,
processes, techniques, improvements, methods of manufacturing, know-how, data, software,
financial information and forecasts, product plans, marketing plans and strategies, price
lists, customer lists and contractual obligations and terms thereof, data, documentation and
other information, in whatever form disclosed, relating to the Disclosing Party or its
affiliates. Notwithstanding the foregoing, Confidential Information does not include any
information (i) that is or becomes readily available in public records or documents, other than
as a result of a disclosure by the Receiving Party, or (ii) which can be shown to have been
known by the Receiving Party prior to its disclosure by the Disclosing Party, or (iii) was
developed independently by the Receiving Party without reliance on Confidential Information of
the Disclosing Party.
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REPRESENTATIONS AND WARRANTIES
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Diagnostic Partner represents, warrants and covenants to Qikwell that:
- it is duly authorized and has the necessary corporate approvals and permits to
enter in to this Agreement and to take all necessary steps to fulfil the
obligations set out hereunder;
- it is not party to any arrangement or subject to any laws that restrict or prohibit
fulfilment of the provisions as set out hereunder;
- it has and shall maintain during subsistence of the Tenure, appropriate
certification and equipment;
- it shall render the Services in accordance with generally acceptable industry
practices and customary measures as followed in generation of Diagnostic Reports;
- it shall be the sole responsibility of the Diagnostic Partner to procure all
resources, equipment, manpower and other materials necessary to render Services as
set out hereunder;
- it is duly authorized and has the appropriate rights and licenses to use the
Proprietary Materials in the manner as envisaged hereunder;
- it shall use the Qikwell Logo in the manner as prescribed by Qikwell and not
undertake any action in relation thereto that leads to denigration or damage of the
reputation and goodwill of Qikwell;
- it shall comply with the Applicable Laws, regulations and statutory prescription as
applicable to it for purpose of rendering of the Services hereunder;
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Qikwell represents, warrants and covenants to Diagnostic Partner that:
- it is duly authorized and has the necessary corporate approvals and permits to
enter in to this Agreement and to take all necessary steps to fulfil the
obligations set out hereunder;
- it is not party to any arrangement or subject to any laws that restrict or prohibit
fulfilment of the provisions as set out hereunder;
- in case it uses Diagnostic Partner’s name or logo for business purpose, it shall do
so in the manner prescribed by the Diagnostic Partner, and not undertake any action
in relation thereto that leads to denigration or damage of the reputation and
goodwill of Diagnostic Partner;
- it shall comply with the Applicable Laws, regulations and statutory prescription as
applicable to it for purpose of fulfilling its obligations under this agreement.
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No Disparagement. Notwithstanding anything in this Agreement, neither Party will
make any claims, representations or warranties on behalf of the other Party or bind the
other Party, and neither Party is authorized to do so by this Agreement. The
relationship between the Parties will be that of independent contractors. Nothing
contained herein will be construed to imply a joint venture, principal or agent
relationship, or other joint relationship, and neither Party will have the right, power
or authority to bind or create any obligation, express or implied, on behalf of the
other Party. During the Tenure of this Agreement, each Party shall not make any public
statement disparaging the other Party’s brand, marks, products or services
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INDEMNITY AND LIABILITY
- (a) The Diagnostic Partner shall indemnify and hold Qikwell, its affiliates, agents,
officers, and employees harmless from and against all claims, demands, liabilities, losses,
damages and expenses (including all costs, expenses and reasonable attorneys’ fees on
account thereof or in connection with any investigation or preparation related thereto or
the enforcement of this p of this Agreement) that may be made or incurred as a result of
Diagnostic Partner’s or its personnel’s actual or alleged acts or omissions.
Notwithstanding, the foregoing, the Diagnostic Partner shall not be responsible for
indemnifying Qikwell for any claims, demands, liabilities, losses, damages, or expenses
resulting from any gross negligence or wilful misconduct by Qikwell.
(b) Qikwell shall indemnify and hold the Diagnostic Partner, its affiliates, agents,
officers and employees harmless from and against all claims, demands, liabilities, losses,
damages and expenses (including all costs, expenses and reasonable attorneys’ fees arising
out of in relation to or pursuant to a third party claim caused due to gross negligence or
wilful misconduct of Qikwell which is determined by a court of competent jurisdiction by
way of a non-appealable order to have been caused due to a direct and proximate effect of
the said gross negligence or wilful misconduct of Diagnostic Partner.
- The Diagnostic Partner shall have the right to undertake the defense, compromise or
settlement of any claims set out in clause 8.1(a) at the Diagnostic Partner's own expense
and with counsel of the Diagnostic Partner's own choosing, provided that Qikwell may
participate in any such defense with counsel of its own selection and at its own expense.
No compromise or settlement shall be made, executed or delivered by the Diagnostic Partner
with respect to any claim arising out of this Agreement without the prior written consent
of Qikwell.
- Each Party shall notify the other promptly of any loss or claim by reason of which
indemnification may arise under this Clause 8. The failure to give such notice shall not
defeat each Party’s right to seek the remedy of indemnification. In the event that the
indemnifying Party fails to assume the defense of an indemnifiable claim within twenty (20)
days of being notified of the existence of such claim, the indemnified Party shall have the
right to undertake the defense, compromise or settlement of such claim at the risk and
expense of the indemnifying Party. Upon demand, the indemnifying Party shall reimburse the
indemnified Party for the cost of such defense, compromise or settlement, including but not
limited to attorney’s fees.
- The Parties agree and acknowledge that vis-à-vis the User, the Diagnostics Report shall be
deemed to have been prepared by the Diagnostics Partner and as such the Diagnostics Partner
shall bear all liability arising out of any harm, loss or damage occasioned to the User,
directly or indirectly, owing to any deficiency or inaccuracy in the Diagnostic Report or
any non-compliance with Applicable Laws by Qikwell.
- In no event shall either party be liable to the other under any theory of liability,
whether in an equitable, legal, or common law action arising hereunder for contract, strict
liability, tort (including negligence), or otherwise for any special, incidental, indirect,
exemplary, reliant, punitive, or consequential damages of any kind and however or for
any loss of data, loss of business interruption or loss of profits, business opportunities,
or goodwill arising hereunder, even if notified of the possibility of such damage and
notwithstanding the failure of essential purpose of any remedy.
- Notwithstanding the aforesaid, the total, cumulative liability of Qikwell under this
Agreement, shall be limited to the amounts paid by Qikwell to the Diagnostic Partner in six
(6) months immediately preceding the event causing such liability. The existence of claims
or suits will not enlarge or extend the limit.
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TENURE AND TERMINATION
- This Agreement will come into force on the Effective Date and, subject as provided in
Clauses 9.2 and 9.3 below, will continue till the date set out in the relevant IO (the
"Tenure").
- Qikwell may terminate the Agreement:
- by providing 30 (thirty) days’ notice without any cause;
- 30 (thirty) days after Qikwell provides the Diagnostic Partner notice of Diagnostic
Partner’s breach of any provision of the Agreement and which the Diagnostic Partner
does not cure within the said 30 (thirty) days’ notice period;
- with immediate effect, if the Diagnostic Partner has breached its obligations set out
in Clauses 6 or any non-curable breach, hereof;
- thirty (30) days’ notice to the Diagnostic Partner if the Diagnostic Partner files for
bankruptcy, becomes insolvent, a petition is admitted for bankruptcy or insolvency
against the Diagnostic Partner which is not set aside in sixty (60) days or makes an
assignment for the benefit of creditors.
- Diagnostic Partner may terminate the Agreement:
- by providing 90 (ninety) days’ notice without any cause;
- thirty (30) days after the Diagnostic Partner provides Qikwell notice of Qikwell’s
breach of any material provision of the Agreement and which Qikwell does not cure
within the 30 (thirty) days’ notice period;
- thirty (30) days’ notice to Qikwell if Qikwell is declared bankrupt, becomes insolvent,
which is not set aside in 60 (sixty) days or makes an assignment for the benefit of
creditors.
- The termination of this Agreement for whatever reason shall be without prejudice to any
rights or remedies which may have accrued prior to the date of termination.
- Pursuant to the expiry or termination of Diagnostic Partner’s arrangement with Qikwell as
per the IO, this Agreement shall stand terminated/ expired, as the case maybe. Accordingly,
all rights of Diagnostic Partner under this Agreement shall stand cancelled. Termination or
expiry of the Agreement shall not act as a waiver of any breach under this Agreement, and
shall not release a Party from any liability for breach of such Party’s obligations under
the Agreement that occurred prior to the date of termination/ expiry of this Agreement. It
is explicitly clarified that all orders in progress where testing has been done and
reporting is pending shall be shared with Qikwell.
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NOTICE
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Notices shall be served by e-mail followed by registered post or speed post
acknowledgement due or email at the following coordinates:
Qikwell: WeWork Building, Salarpuria Symbiosis, Arekere Village
Begur, Bannerghatta Main Road, Begur Hobli, Bengaluru – 560076
Diagnostic Partner: Notices shall be served to the address or addresses provided
under the IO.
- The Parties agree and understand that any notice sent by email shall be deemed to have been
served after expiry of twenty four (24) hours of despatch of the email.
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MISCELLANEOUS
- Assignment. This Agreement is entered into by Qikwell in reliance upon the,
certification, facilities, personnel and expertise of the Diagnostic Partner and the
Diagnostic Partner cannot transfer or assign the performance of the Agreement or any part
thereof to any other person. Qikwell may assign this Agreement in whole or in part to any
other person with notification to the Diagnostic Partner, except in case of merger,
take-over, acquisition or similar corporate restructuring of Qikwell, its holding company
or any group entity.
- Force Majeure. Neither Party shall be liable to the other Party for any delay or
omission in the performance of any obligation under this Agreement, where the delay or
omission is due to any cause or condition beyond the reasonable control of the Party
obliged to perform, including, but not limited to, strikes or other labor difficulties,
acts of God, acts of government (in particular with respect to the refusal to issue
necessary import or export licenses), war, riots, or inability to obtain supplies ("Force
Majeure"). If Force Majeure prevents or delays the performance by a Party of any obligation
under this Agreement, then the Party claiming Force Majeure shall promptly notify the other
Party thereof in writing.
- Non-exclusivity. Each Party agrees and acknowledges that nothing in this Agreement
implies that it shall engage with the other Party in an exclusive manner and that each
Party is at liberty to engage with any third party for arrangements similar to the ones set
out herein.
- Governing Law and Jurisdiction. This Agreement shall, in all respects, be governed
by and construed in all respects in accordance with the laws of India without giving effect
to conflict of laws principles and shall be subject to the exclusive jurisdiction of the
courts in Bangalore, India.
- Severability. If any provision of this Agreement is void, or is so declared, such
provision shall be severdoc ed from this Agreement. The Agreement shall otherwise remain in
full force and effect.
- Remedies. Both the Parties acknowledge, understand and agree that should either
party breach any of its obligations contained in this Agreement, the other party shall have
the right to fully enforce this Agreement and Qikwell shall be irreparably harmed and
entitled to specific performance, including without limitation, an immediate issuance of a
temporary restraining order or preliminary injunction (without posting a bond) enforcing
this Agreement, in addition to a judgment for damages caused by any such breach, and to any
other remedies provided for by Applicable Laws.
- Survival. Clauses 4 (Data Storage and Ownership), 5 (Intellectual Property), 6
(Confidentiality), 8 (Indemnity and Liability), 9 (Tenure and Termination), 10 (Notice) and
11 (Miscellaneous) and any other provision which by its nature survives, shall survive the
termination and/or expiry of this Agreement.