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GENERAL TERMS (CHANNEL PARTNER AGREEMENT) – PART B

The Channel Partner has set up and operates a technology-based Platform (defined later) that facilities various healthcare services between healthcare service providers and patients who are registered on its Platform.

  1. DEFINITIONS AND INTERPRETATION:
    1. Unless the context otherwise requires, the following words and expressions shall have the meanings as set out hereinbelow:
      1. Parties” shall collectively refer to both Channel Partner and Service Provider.
      2. Agreement” shall comprise of Part A (Agreement and terms of the Agreement, including the cover page and the signature clauses) and Part B – General Terms.
      3. Transaction Fee” shall mean a flat fee to be charged to the Service Provider by the Channel Partner as mutually agreed between the Parties for the transaction that was executed through mfine Platform, set out under Schedule I of the Channel Partner Agreement – Part A. 
      4. Cost Price” shall mean a flat fee to be charged to the Channel Partner by the Service Provider as mutually agreed between the Parties for each Services, set out under Schedule I of the Channel Partner Agreement – Part A. 
      5. Discount” shall mean a percentage (%) of the Original Price offered as discount by the Service Providers to the person who avails their Services, set out under Schedule I of the Channel Partner Agreement – Part A. 
      6. Original Price” shall mean a fee charged by the Service Provider for each Services set out under Schedule I of the Channel Partner Agreement – Part A. 
      7. Services” shall mean healthcare services provided by the Service Provider to the mfine User, set out under Schedule I of the Channel Partner Agreement – Part A. 
      8. mfine User” shall mean the persons who avails healthcare services offered on mfine Platform.
      9. mfine Platform” shall mean the technology platform titled ‘mfine’ that is owned and operated by the Channel Partner.
      10. Applicable Law” shall mean any statute, law, regulation, ordinance, rule, judgment, rule of law, order, decree, clearance, approval, directive, guideline, policy, requirement, or other governmental restriction or any similar form of decision, or determination by, or any interpretation or administration of any of the foregoing by, any statutory or regulatory authority whether in effect as of the date of this Agreement or thereafter and in each case as amended.
      11. Unique Code” shall mean a code generated by the Channel Partner on successful transaction by the mfine User on mfine Platform.
    2. In this Agreement, unless the context otherwise requires:
      1. A reference to Applicable Law or to any provision hereof shall include references to any such law as it may, after the date hereof, from time to time, be amended, supplemented or re-enacted, and any reference to any statutory provision shall include any subordinate legislation made from time to time under that provision;
      2. A reference to an amendment includes a supplement, modification, novation, replacement or re-enactment and ‘amended’ is to be construed accordingly;
      3. A reference in the singular shall include references in the plural and vice versa;
      4. The words ‘hereof’, ‘herein’ and ‘hereunder’ and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement;
      5. Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase shall have corresponding meanings.
      6. The words ‘include’, ‘includes’ and ‘including’ are not limiting;
      7. Any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
      8. No word defined in this Agreement shall be construed so as to derogate, or detract, from the intent of this Agreement and the interests of any Party;
      9. Any Party who agrees to do something shall be deemed to fulfil that obligation if that Party procures that it is done;
      10. A reference to a particular Clause and/or Schedule and/or Annexure shall, except where the context otherwise requires, be a reference to that Clause and/or Annexure in this Agreement;
      11. The headings and subheadings are inserted in this Agreement for convenience and identification only and are to be ignored for the purposes of construction except to the extent that the context otherwise requires.
  2. SERVICE PROVIDERS OBLIGATIONS: 
    1. The Service Provider shall, at its sole cost and expense, obtain and maintain all permits and licenses necessary in connection with its performance of its obligations under this Agreement and shall comply with all relevant governmental rules and regulations relevant to the rendering of the Services.
    2. The Service Provider shall ensure to record the Unique Code provided by the mfine User for each transaction.
    3. The Service Provider is under an obligation to maintain Confidentiality with respect to mfine User’s data through mfine Platform. Service Provider shall not share such mfine User’s data with any third parties. 
    4. The Service Provider shall not use Channel Partner’s intellectual property rights including brand name, logo, name, any images etc. for any marketing activities etc. except with prior written consent of the Channel Partner.
  3. CHANNEL PARTNERS RIGHTS AND OBLIGATIONS:
    1. Channel Partner shall generate Unique Code for every successful transaction by the mfine User on the mfine Platform. The mfine User shall share the Unique Code with the Service Provider.
    2. Channel Partner retains the right to offer the same or alternate services through Channel Partner’s employees or other persons that Channel Partner may appoint at any time and from time to time.
    3. The Channel Partner by the end of each month shall provide details of the Services availed by mfine Users.
  4. PAYMENT TERM:
    1. All payment exchanges between the Channel Partner and the Service Provider shall be consummated through a direct bank transfer using NEFT/RTGS/IMPS or through a cheque/demand draft/pay order as specified by the Parties. 
    2. In the event of any dispute with respect to the amounts received or to be received by either Party, the Parties shall aim to amicably settle such dispute, failing which the Parties shall resolve the dispute in accordance with terms of this Agreement. 
    3. The Service Provider agrees that any payment dispute pertaining to the Services rendered by it shall not affect the continuity of such Services.
  5. REPRESENTATIONS AND WARRANTIES:
    1. Each Party represents and warrants as follows:
      1. Each Party is duly organised and validly existing under Applicable Law and has the requisite corporate power and authority to carry on its business;
      2. Each Party has the full power and authority to execute and deliver this Agreement and to perform its obligations hereunder; ands
      3. Neither the execution and delivery, nor performance of this Agreement by either Party, shall (a) violate any provisions of the articles of association or memorandum of association of each Party; or (b) violate Applicable Law;
    2. The Service Provider hereby further represents and warrants that:
      1. it is a duly and validly registered entity in accordance with Applicable Law and is in compliance with Applicable Law; and
      2. it has all valid licenses, registrations and permissions required for it to carry on its business and none of the licenses, registrations and permissions are due to expire within one (1) year from the Effective Date. 
    3. The Channel Partner hereby further represents and warrants that it is a technology enabled platform.
  6. DATA PROTECTION:The Service Provider shall keep all mfine Users data as well as data shared by the Channel Partner securely in accordance with the Channel Partner’s privacy policy and shall indemnify the Channel Partner for any breach in relation to the same to the Channel Partner.
  7. TERM AND TERMINATION
    1. This Agreement shall commence on the Effective Date and shall remain in force for a period of five (5) year from the Effective Date, unless terminated in accordance with Clauses 7.2 and 7.3 below.
    2. The Channel Partner shall, at its sole discretion, be entitled to terminate this Agreement at any time by providing thirty (30) days prior written notice. The Parties shall be entitled to receive payment due under this Agreement within seven (7) days of such termination.  The Channel Partner may also terminate this Agreement immediately at its sole discretion upon written notification to the Service Provider in the event the Service Provider has breached any of the provisions of this Agreement or if the Service Provider makes an assignment for the benefit of its creditors, is declared insolvent, or has a receiver or trustee in bankruptcy appointed to take charge of all or part of the Service Provider’s property. 
    3. The Service Provider shall be entitled to terminate this Agreement upon prior written notification of thirty (30) days to the Channel Partner, in the event the Channel Partner has breached any of its material obligations set out in this Agreement.
  8. CONFIDENTIALITY
    1. The Parties shall maintain absolute confidentiality about any matter (including the existence of this Agreement, mfine Users details and the transaction proposed herein) referred to in this Agreement and shall not make any disclosure to anyone, except when required by any court of law or Applicable Law.
    2. No public announcement (whether in the form of a press release or otherwise) shall be made by or on behalf of either Party or their agents or representatives with respect to the subject matter of this Agreement unless:
      1. the other Party has agreed in writing to permit such public announcement to be made, (which permission shall not be unreasonably withheld); or
      2. such public announcement is required by Applicable Law and the Party required to make such announcement has given prior written notice thereof to the other Party.
    3. Any public announcement made as permitted under this Clause 8 shall be made only in accordance with a text mutually agreed upon by the Parties.
  9. LIMITATION OF LIABILITY:Either Party will not be liable to other party with respect to this Agreement except in the event of other parties’ gross negligence or wilful misconduct. Either Party will not be liable for consequential, incidental, special or indirect loss or damages of any kind.
  10. INDEMNITY:Both parties hereby covenants and represents that it shall comply with the covenants and obligations as contained herein. Further, each party, shall indemnify on demand and hold harmless and shall keep the other party and its affiliates, directors, officers, advisors, representatives and successors (the “Indemnified Persons”) indemnified against any and all losses, expenses, liabilities, obligations, actions, proceedings, claims, demands and judgments (including without limitation legal and other fees on a full indemnity basis and any increased costs) and Taxes (collectively, the “Losses”) imposed on, or incurred by such Indemnified Person on account of or in connection with the non-performance, non-observance, breach of the terms contained herein or inaccuracy of any of the undertakings, covenants, representations, warranties herein contained.
  11. COMPLIANCE WITH APPLICABLE LAWS, REGULATIONS:The Parties undertake that they shall at all times comply with all laws, rules, regulations and ordinances as applicable to supply and purchase of the Products. Without prejudice to the generality of the foregoing, the Service Provider shall comply with requirements of the Drugs and Cosmetics Act, 1940, the Information Technology Act, 2000 and the rules, regulations, orders and notifications there under.
  12. NOTICE
    1. Each of the Parties shall notify to the other any change of address or other coordinates within a period of forty-eight (48) hours of such change.
    2. A notice or other communication received on a day other than a Business Day, or after business hours, in the place of receipt, shall be deemed to be received on the next Business Day in such place.
  13. GOVERNING LAW AND ARBITRATION
    1. This Agreement shall be governed by and construed in accordance with the laws of India. Subject to Clause 12.3, the Parties submit to the exclusive jurisdiction of the appropriate courts at Bengaluru, India. 
    2. If any dispute, controversy or claim among the Parties arises out of or in connection with this Agreement, including the breach, termination or invalidity hereof (“Dispute”), the Parties shall use all reasonable endeavors to negotiate with a view to resolving the Dispute amicably.  
    3. If a Party gives the other Party notice that a Dispute has arisen (a “Dispute Notice”) and the Parties are unable to resolve the Dispute amicably within thirty (30) days of the date of service of the Dispute Notice (or such longer period as the Parties may mutually agree prior thereto), then the Dispute shall be referred to and finally be resolved by arbitration in accordance with the Arbitration and Conciliation Act, 1996 and any amendments thereto.  
    4. The arbitral tribunal shall consist of a sole arbitrator as mutually appointed between the Parties. The seat of arbitration shall be Bengaluru, India.
    5. The arbitral award shall contain reasons and shall be final and binding on the Parties and the Parties irrevocably waive any rights to any form of appeal, review or recourse to any state or other judicial authority in India or elsewhere, insofar as such waiver may validly be made. The language of the arbitration shall be English.
    6. The Parties shall bear their own legal and other costs and expenses necessary to the Dispute, which has been submitted to arbitration in accordance with this Clause, without prejudice to the arbitrator’s right to award costs or require any Party to the arbitration to pay the costs and expenses of another Party thereto.
    7. Any arbitration proceeding hereunder shall be conducted on a confidential basis. 
    8. The provisions of this Clause 12 shall survive the termination of this Agreement.
  14. MISCELLANEOUS
    1. Costs and expenses: Each Party shall pay its own expenses, costs and attorneys’ fees in negotiating, preparing and executing this Agreement, except as specifically agreed to by the Parties to the contrary.  
    2. Force Majeure: Neither of the Parties shall be liable for any failure or delay in performance of its obligations, which results directly or indirectly from any cause or circumstance beyond its reasonable control. The following shall be regarded as examples of such circumstances: riot, civil disturbance, acts of terrorism, revolution, the act of any government or authority, fire, earthquake, flood, lightening, explosion, fog or bad weather etc. In the event such force majeure event continues for thirty (30) days the Channel Partner shall terminate this Agreement forthwith. 
    3. Assistance in Litigation: The Service Provider shall, upon reasonable notice, furnish such information and proper assistance to the Channel Partner, at the cost and risk of the Channel Partner, as it may reasonably require from time to time in connection with any litigation in which it is, or may become, a party to either during or after the term of this Agreement.
    4. Non—Disparagement: The Service Provider agrees that during the course of term of this Agreement and after its termination, the Service Provider will not make any statements, written or verbal, or take any action, which is intended to harm the Channel Partner or its reputation or which would reasonably be expected to lead to unwanted or unfavourable publicity to the Channel Partner. 
    5. Amendments: No amendments to this Agreement shall be effective unless made in writing and signed by each of the Parties. 
    6. Partial Invalidity: If any provision of this Agreement, or the application thereof to any person or circumstance, is or is held to be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by Applicable Law. Any invalid or unenforceable provision of this Agreement shall be replaced with a provision, which is valid and enforceable, and most nearly reflecting the original intent of the unenforceable provision.
    7. Entire Agreement: This Agreement (including any annexures hereto), representations and warranties, both written and oral, among the Parties constitutes the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement.  
    8. No waiver: Any waiver of any term or condition of this Agreement by any Party at one instance shall not be construed as a waiver of any subsequent breach or a subsequent waiver of the same term or condition, or a waiver of any other term or condition, of this Agreement. The failure of any Party to assert any of its/ their rights hereunder shall not constitute a waiver of any such rights.
    9. Counterpart: This Agreement may be executed in counterparts, each of which shall have the effect of and be considered as an original of this Agreement.

 

 

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