Ekinwise Technologies Private Limited (“Ekinwise”) is the first owner, publisher and operator of the 5YLE web and mobile application ‘5YLE’ (together, “Application”) more particularly described in Schedule -1 Annexed hereto.
1. NATURE AND APPLICABILITY OF TERMS
The Agreement applies to you whether you are :-
A medical practitioner or health care provider (whether an individual professional or an organization) or similar institution wishing to be listed, or already listed, on the Application, including designated, authorised associates of such practitioners or institutions (“Practitioner(s)”/ “ou” / “User”)
This Agreement applies to those services made available by ekinwise on the Application, which are offered at a charge of Rs 999 per month (subject to change) to the Practitioner (“Services”), including the following:
i. For Practitioners: Listing of Practitioners and their profiles and contact details, to be made available to the other Users, members of the public and visitors to the Application and patients; (“ End –Users”)
ii. Allow patients to take doctors appointment
iii. Allow doctor to manage their own calendar
iv. Doctors to manage their entire accounting system
v. Enables doctors to oversee administration of clinic
vi. maintenance, sharing and accessibility of case records and details of a patient
vii. provides news and updates from different sources useful to the doctor
viii. Analyse data input by doctors and show relevant results
ix. Connect doctor to patient - by sharing the data doctor is supposed to share with patient
The Services may change from time to time, at the sole discretion of ekinwise, and the Agreement will apply to your visit to and your use of the Application to avail the Service, as well as to all information provided by you on the Application at any given point in time.
This Agreement defines the terms and conditions under which you are allowed to use the Application and describes the manner in which we shall treat your account while you are registered as a member with us. If you have any questions about any part of the Agreement, feel free to contact us at legal@5YLE.com.
(A) By downloading or accessing the Application to use the Services, you irrevocably accept all the conditions stipulated in this Agreement and agree to abide by them. This Agreement supersedes all previous oral and written terms and conditions (if any) communicated to you. By availing any Service, you signify your acceptance to the terms and conditions of this Agreement.
(B) We reserve the right amend to modify or terminate any portion of the Agreement for any reason and at any time, and such ammendments and modifications shall be informed to you in writing/ email and shall supersede and replace all previous versions of the same You should read the Agreement at regular intervals. Your use of the Application following any such modification constitutes your agreement to follow and be bound by the Agreement so modified. Any additional terms and conditions, disclaimers, privacy policies and other policies applicable in general and/ or to specific areas of this Application or to particular Service are also considered as part of the Agreement.
(C) You acknowledge that you will be bound by this Agreement for availing any of the Services offered by us. If you do not agree with any part of the Agreement, please do not use the Application or avail any Services. Your access to use of the Application and the Services will be solely at the discretion of ekinwise.
(D)The Agreement is published in compliance of, and is governed by the provisions of Indian law, including but not limited to:
i. the Indian Contract Act, 1872,
ii. the (Indian) Information Technology Act, 2000, and
iii. the rules, regulations, guidelines and clarifications framed there under.
2. CONDITIONS OF USE
You must be 18 years of age or older to register, use the Services, or visit or use the Application in any manner. By registering, visiting and using the Application or accepting this Agreement, you represent and warrant to ekinwise that you are 18 years of age or older, and that you have the right, authority and capacity to use the Application and the Services available through the Application, and agree to and abide by this Agreement.
[i] LISTING POLICY
[A] ekinwise , directly and indirectly, collects information regarding the Practitioners’ profiles, contact details, and practice, and publishes these details on the Application. On a Practitioner’s request, _ ekinwise may take down any part of such Practitioner’s profile on the Application, provided, however, that ekinwise shall at no time be under any obligation to take down publicly available information about a Practitioner, his/her profile, contact details and/or practice. All information regarding the Practitioners’ profiles, contact details, and practice is collected for the purpose of facilitating interaction between and among End-Users, members of the public and Practitioners. If any information displayed on the Application in connection with you and your profile is found to be incorrect, you are required to inform ekinwise immediately to enable ekinwise to make the necessary amendments.
[B] ekinwise shall not be liable and responsible for the listing of the Practitioners on external websites and search engines on account of listing on this Application
[E] ekinwise reserves the right to publish the User information to a third party, subject to prior explicit informed consent from the User.
[G] You as a Practitioner hereby represent and warrant that you will use the Services in accordance with applicable law. Any contravention of applicable law as a result of your use of these Services is your sole responsibility, and ekinwise accepts no liability for the same.
[H ] Theft of Subscription Services
You agree to notify ekinwise immediately, in writing or by mail to firstname.lastname@example.org , if your content is stolen or if you become aware at any time that your account with any Subscription Service is being misused or being used fraudulently. When you call or write, you must provide your account details and a detailed description of the circumstances of the theft or fraudulent use of the Subscription Services. Failure to do so promptly or within a reasonably prompt time period after discovery of the improper use may result in the termination of your Subscription Services and additional charges to you. You will be liable for all use of the Subscription Services if your account is misused and also for any and all stolen Subscription Services or fraudulent use of the Service. Notwithstanding anything herein to the contrary, ekinwise shall not be liable to extend the subscription period or waiveoff any fees on account of such theft or fraudulent use. This includes, but is not limited to, modem hijacking, wireless hijacking, or other fraud arising out of a failure of your internal or corporate security procedures. ekinwise will not issue refunds for fraudulent use resulting from your negligent or wilful acts or those of an authorized user of your Subscription Services.
[ii] APPOINTMENT BOOKING AND INTEREACTION POLICY
While 5YLE will try to ensure a confirmed appointment for an End-User who requested an appointment on Application, 5YLE does not guarantee that a doctor / clinic / healthcare provider will get a confirmed appointment. Further, 5YLE has no liability if such appointment is confirmed but later cancelled by end-user, or the end-user are not available as per the given appointment time.
4 PROFILE OWNERSHIP AND EDITING RIGHTS
ekinwise ensures easy access to the Practitioners by providing a tool to update your profile information. ekinwise reserves the right of ownership of all the Practitioner’s profile and photographs and to moderate the changes or updates requested by Practitioners. However, ekinwise takes the independent decision whether to publish or reject the requests submitted for the respective changes or updates. You hereby represent and warrant that you are fully entitled under law to upload all content uploaded by you as part of your profile or otherwise while using ekinwise services, and that no such content breaches any third party rights, including intellectual property rights. Upon becoming aware of a breach of the foregoing representation, ekinwise may modify or delete parts of your profile information at its sole discretion with or without notice to you.
5. DISPLAY RIGHTS OF EKINWISE
[A] All Content is content created by the Users of 5YLE (“Application”) and the clients of ekinwise customers and Practitioners, including the End-Users. As a platform, ekinwise does not take responsibility for Content and its role with respect to Content is restricted to that of an ‘intermediary’ under the Information Technology Act, 2000. . ekinwise Feedback Collection and Fraud Detection Policy, is annexed as the Schedule hereto, and remains subject always to these Terms.
[B] ekinwise reserves the right to collect feedback and Content for all the Practitioners, Clinics and Healthcare Providers listed on the Application.
[C] ekinwise shall have no obligation to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service, except as required by applicable law.
[D] You understand that by using the Services you may be exposed to Content or other content that you may find offensive or objectionable. ekinwise shall not be liable for any effect on Practitioner’s business due to Content of a negative nature. In these respects, you may use the Service at your own risk. ekinwise however, as an ‘intermediary’, takes steps as required to comply with applicable law as regards the publication of Content.
[E] ekinwise will take down information under standards consistent with applicable law, and shall in no circumstances be liable or responsible for Content, which has been created by the Users. The principles set out in relation to third party content in the terms of Service for the Application shall be applicable mutatis mutandis in relation to Content posted on the Application.
[F] If ekinwise determines that you have provided inaccurate information or enabled fraudulent feedback, ekinwise reserves the right to immediately suspend any of your accounts with ekinwise and makes such declaration on the Application alongside your name/your clinics name as determined by ekinwise for the protection of its business and in the interests of Users. You shall be liable to indemnify ekinwise for any losses incurred as a result of your misrepresentations or fraudulent feedback that has adversely affected ekinwise or its Users. ekinwise is not liable to refund any amount that may have been paid by you to ekinwise for the services used by you.
6. RANKING ALGORITHM
ekinwise has designed the ranking algorithm in the best interest of the End-User and may adjust the ranking from time to time to improve the quality of the results given to the patients. It is a pure merit driven, proprietary ranking algorithm which cannot be altered for specific Practitioners. ekinwise shall not be liable for any effect on the Practitioner’s business interests due to the rank of the doctor in the Ranking Algorithm
7. INDEPENDENT SERVICES
Your use of each Service confers upon you only the rights and obligations relating to such Service, and not to any other service that may be provided by ekinwise.
8. RESERVED RIGHTS
ekinwise reserves the rights to display sponsored content on the Application. These contents would be marked as “Sponsored Listings”. Without prejudice to the status of other content, ekinwise will not be liable for the accuracy of information or the claims made in the Sponsored Listings. ekinwise does not encourage the Practitioners to visit the Sponsored Listings page or to avail any services from them. ekinwise will not be liable for the services of the providers of the Sponsored Listings.
You represent and warrant that you will use these Services in accordance with applicable law. Any contravention of applicable law as a result of your use of these Services is your sole responsibility, and ekinwise accepts no liability for the same.
9. TERMS OF CONSULTATION AND FEE PAYMENT
[A] ekinwise enables Practitioners to connect with the Patients by responding to the health related queries posted by them on their Health Accounts using the special software application provided to Practitioners by 5YLE (“Doctor’s App”).
[B] The Patient may post queries on their Health Accounts which will be only sent to the Practitioner that the User has chosen.
[C] Practitioner agrees that, when providing any written response to a Patient’s query that constitutes a performance of his/her services, the Practitioner shall not post language that may be considered abusive, objectionable or demeaning to the Patient or in general.
[D] In the event, the Practitioner indicates as part of his response the pre-consultation fee payable for the advice solicited through the private query.
[E] ekinwise reserves the right to revise the fee terms at any time at their discretion. The Practitioner’s continued use of the services and Doctor App shall constitute his/her consent to such revision.
[G] Practitioner hereby represents and warrants that he/she
i. is qualified to provide medical services within the territory of India;
x. has obtained all licenses as required by law to provide medical services and has not committed any act or omission that might prejudice its continuance or renewal; and
xi. has provided ekinwise true, accurate, complete and up to date details about their qualification and credentials.
[H] Practitioner agrees that he/she shall at all times abide by the applicable medical regulations including the code of professional ethics as prescribed under applicable laws.
[I] Practitioners shall promptly renew their licenses required to provide medical services and notify ekinwise about the same
[J] ekinwise reserves the right to terminate any account of the Practitioner in case:
ii. ekinwise is unable to verify or authenticate any information provided to it by a Practitioner; or
iii. ekinwise in its sole and absolute discretion believes that actions of the Practitioner may cause legal liability for ekinwise or other Users and / or may adversely affect the services rendered by ekinwise
[K] Practitioner hereby agrees that, for any Patient that contacts the Practitioner using 5YLE, only he/she shall be allowed to perform the services for the Patient and that the Practitioner may under no circumstances be permitted to transfer the performance of Pracitioner's Services to any other person, whether under their supervision or not. The Practitioner accepts all responsibility and liability for the use of 5YLE, including the performance of its services, by any other party claiming to be the Practitioner and hereby agrees to indemnify ekinwise against any claim or loss that may be faced by ekinwise consequent to such use.
[L] Practitioner hereby agrees to hold in strictest confidence all information provided by a Patient to him/her under all circumstances. Practitioner agrees that he/she shall not disclose any information or documentation provided by a Patient to any other person, nor shall he/she allow, by act or omission, such information or documentation to be acquired by any other person.
[M] Practitioner agrees to render his/her services and fulfil their obligations towards their patients using their best efforts, skill and ability.
[N] Practitioner agrees and understands that some or all of his/her information may be made available to the general public through the 5YLE or otherwise by the ekinwise and that he/she has no objection to the same.
[O] Practitioner hereby agrees to assign to ekinwise in perpetuity all intellectual property rights residing in the responses provided by him/her for use by ekinwise worldwide.
[P] Any communication sent by or through 5YLE to the Practitioner is based solely on information uploaded by the Patient. ekinwise shall not be responsible for the incompleteness or inaccuracy such information, including if as a result of such inaccuracy, a communication is sent to an unintended recipient.
[R] ekinwise shall not be held responsible for any act, including but not limited to, loss of data, unavailability or service and/ or user discomfort which might follow on account of maintenance of Application, upgradation of the Application, viruses and hacking attacks or any act which might occur by Force Majeure.
10. RIGHTS AND OBLIGATIONS RELATING TO CONTENT
[A] As mandated by extant laws, rules, regulations In India, hereby informs Practitioners that they are not permitted to host, display, upload, modify, publish, transmit, update or share any information that:
i. belongs to another person and to which the User does not have any right to;
ii. is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
iii. harm minors in any way;
iv. infringes any patent, trademark, copyright or other proprietary rights;
iv. violates any law for the time being in force;
v. deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
vi. impersonate another person;
vii. contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
viii. threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
[B] Practitioners are also prohibited from:
i. violating or attempting to violate the integrity or security of the Application or any ekinwise Content;
ii. transmitting any information (including job posts, messages and hyperlinks) on or through the Application that is disruptive or competitive to the provision of Services by ekinwise;
iii. intentionally submitting on the Application any incomplete, false or inaccurate information;
iv. making any unsolicited communications to other practitioners;
v. using any engine, software, tool, agent or other device or mechanism (such as spiders, robots, avatars or intelligent agents) to navigate or search the Application;
vi. attempting to decipher, decompile, disassemble or reverse engineer any part of the Application;
vii. copying or duplicating in any manner any of the Content or other information available from the Application;
viii. framing or hot linking or deep linking any Content.
ix. Sending any communication that can be classified as ‘spam’ defined as under, including but not limited to:
a. Irrelevant or unsolicited messages sent over the Internet, typically to large numbers of users, for the purposes of advertising, phishing, spreading malware, etc.
b. Unwanted or intrusive advertising on the Application:
c. send the same or similar message indiscriminately
d. any content that is reported as spam by it’s receiver
[C] ekinwise, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information (as mentioned above) generated by Patients, or on being notified by the appropriate Government or its agency that the Application is being used by the Practitioner to commit any unlawful act and/or is being used in violation ekinwise above, shall be entitled to remove or disable access to the material or information that is in contravention of this Paragraph. ekinwise is entitled to act, as required by the IG Rules, within thirty six hours of obtaining such knowledge and, where applicable, work with Patients to disable such information that is in contravention of applicable law. ekinwise shall also be entitled to preserve such information and associated records for at least 90 (ninety) days for production to governmental authorities for investigation purposes. Further, ekinwise, at it’s own discretion, upon it’s own knowledge or intimated by a third party may block / disable, prevent usage of certain services provided under the application mentioned in this agreement.
[E] ekinwise may disclose or transfer Practitioner-generated information to its affiliates or governmental authorities in such manner as permitted or required by applicable law, and you hereby consent to such transfer. ekinwise will comply with any duly-issued government or court directions to disable access to the Patient-generated information, should it be found to be illegal by a competent governmental authority.ekinwise may use the content as and when required for debugging or rectifying the application or resolve any issues.
[ F] Return of User’s Data: Upon request by a User made within 30 (thirty) days after the effective date of termination of a Subscription Services subscription due to nonpayment, ekinwise will make available to the User for download a copy of such User’s data in pdf format or any other format as determined by ekinwise. After such 30 (thirty) days period, ekinwise shall have no obligation to maintain or provide any of such User’s data and shall thereafter, unless legally prohibited, delete all User’s data in its systems or otherwise in its possession or under its control. In cases where User terminates the subscription voluntarily, it will be the sole responsibility of the User to make a copy of their data before terminating the subscription Users data will not be available after termination of subscription in such cases.
[A] ekinwise reserves the right to suspend or terminate a Practitioner’s access to the Application and the Services with or without notice and to exercise any other remedy available under law, in cases where,
i. Such Practitioner breaches any terms and conditions of the Agreement;
ii. A third party reports violation of any of its right as a result of your use of the Services
iii. ekinwise is unable to verify or authenticate any information provided to ekinwise by a Practitioner;
iv. ekinwise has reasonable grounds for suspecting any illegal, fraudulent or abusive activity on part of such Practitioner; or
v. ekinwise believes in its sole discretion that Practitioner’s actions may cause legal liability for such Practitioner, other Practitioners or for ekinwise or are contrary to the interests of the Application.
[B] Once temporarily suspended, indefinitely suspended or terminated, the Practitioner may not continue to use the Application under the same account, a different account or re-register under a new account. On termination of an account due to the reasons mentioned herein, such Practitioner shall no longer have access to data, messages, files and other material kept on the Application by such Practitioner. The Practitioner shall ensure that he/she/it has continuous backup of any medical services the Practitioner has rendered in order to comply with the Practitioner’s record keeping process and practices.
[C ] Upon termination all obligation of and upon the User mentioned in this agreement will continue and survive termination.
12 LIMITATION OF LIABILITY
In no event, including but not limited to negligence, shall ekinwise, or any of its directors, officers, employees, agents or content or service providers (collectively, the “Protected Entities”) be liable for any direct, indirect, special, incidental, consequential, exemplary or punitive damages arising from, or directly or indirectly related to, the use of, or the inability to use, the Application or the content, materials and functions related thereto, the Services, Practitioner’s provision of information via the Application, lost business or lost End-Users, even if such Protected Entity has been advised of the possibility of such damages. In no event shall the Protected Entities be liable for:
i. provision of or failure to provide all or any service by Practitioners to End- Users contacted or managed through the Application;
ii. any content posted, transmitted, exchanged or received by or on behalf of any Patients or other person on or through the Application;
iii. any unauthorized access to or alteration of your transmissions or data; or
iv any other matter relating to the Application or the Service.
In no event shall the total aggregate liability of the Protected Entities to a Practitioner for all damages, losses, and causes of action (whether in contract or tort, including, but not limited to, negligence or otherwise) arising from this Agreement or a Practitioner’s use of the Application or the Services exceed, in the aggregate Rs. 1000/- (Rupees One Thousand Only).
Practitioner agrees to indemnify and hold harmless ekinwise, its , officers, directors, employees, consultants, licensors, agents, and representatives from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from Practitioner’s access to or use of Service, violation of this Agreement, or infringement, or infringement by any other Practitioner of his/her/its account, of any intellectual property or other right of any person or entity. ekinwise will notify you promptly of any such claim, loss, liability, or demand, and in addition to your foregoing obligations, you agree to provide us with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.
14. APPLICABLE LAW AND DISPUTE SETTLEMENT
[A] You agree that this Agreement and any contractual obligation between ekinwise and Practitioner will be governed by the laws of India.
[B] 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 Application or the Services or information to which it gives access, shall be determined by arbitration in India, before a sole arbitrator appointed by ekinwise. Arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996. The seat of such arbitration shall be Mumbai. All proceedings of such arbitration, including, without limitation, any awards, shall be in the English language. The award shall be final and binding on the parties to the dispute.
[C ] Subject to the above Paragraph the courts at Mumbai shall have exclusive jurisdiction over any disputes arising out of or in relation to this Agreement, your use of the Application or the Services or the information to which it gives access.
15. CONTACT INFORMATION REDRESSAL OFFICER
[A] If a Practitioner has any questions concerning ekinwise, the Application, this Agreement, the Services, or anything related to any of the foregoing, ekinwise customer support can be reached at the following email address redressal@5YLE.com or via the contact information available from the following link: www.5YLE.com
[B] In accordance with the Information Technology Act, 2000, and the rules made there under, if you have any grievance with respect to the Application or the service, including any discrepancies and grievances with respect to processing of information, you can contact our Grievance Officer at:
Name: Ramesh S.
Address: 222, CitiMall, MIDC, Dombivali East, Mumbai 421201
If any provision of the Agreement is held by a court of competent jurisdiction or arbitral tribunal to be unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided however that, in such event, the Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such court of competent jurisdiction or arbitral tribunal.
No provision of this Agreement shall be deemed to be waived and no breach excused, unless such waiver or consent shall be in writing and signed by ekinwise. Any consent by ekinwise to, or a waiver by ekinwise of any breach by you, whether expressed or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach.