Pharmacy – General Terms

GENERAL TERMS (PHARMACY – SERVICE AGREEMENT) – PART B

The Aggregator has set up and operates a technology-based Platform (defined hereunder) that facilities various healthcare services between Service Provider/s (defined in Part A) and Customers (defined hereunder) who are registered on its Platform.

DEFINITIONS AND INTERPRETATION:
1. Unless the context otherwise requires, the following words and expressions shall have the meanings as set out hereinbelow:
  1. “Agreement” shall comprise of Part A (Service Agreement and terms of the Service Agreement, including the cover page and the signature clauses) and Part B – General Terms.
  2. “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.
  3. “Business Day” shall mean the day on which banks are open.
  4. “Customer” shall mean the person who is registered on the mfine Platform and wishes to avail the delivery of Products.
  5. “Platform” shall mean the technology platforms titled ‘mfine’ and ‘mfine Seller App’ that is owned and operated by the Aggregator.
  6. “Products” shall mean medicines, drugs or other products that the Service Provider is licensed to sell.
  7. “Territory” shall mean India.
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 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;
SERVICE PROVIDERS OBLIGATIONS AND LIABILITIES:
1. The Service provider shall make available the Products for the Customers as per the specifications detailed hereunder:
  1. Post receipt of details of Customers, the Service Provider shall through a phone call to Customer(s): (i) verify the Customer details; and (ii) confirm order details including order quantity, invoice value, availability, payment mode – payment on delivery either through cash or card; or online payment through the mfine Platform.
  2. In the event of partial availability of Product(s) or unavailability of a particular Product, the Service Provider shall inform the same to the Customer. Post such communication, if the Customer wishes to continue with delivery, the Service Provider shall confirm and fulfil the order. The Service Provider shall forthwith notify the Aggregator regarding such unavailability and any possibility of cancellation of future delivery of such Product.
  3. In the event Customer(s) have any concerns with the order, the Aggregator shall route the concern so raised, to the Service Provider via email and/or phone call with the Service Provider’s designated point of contact. The Service Provider shall resolve such concern immediately within 60 minutes of receipt of the concern by the Aggregator.
  4. In the event Customer(s) intends to return or replace the Product within same day of its delivery provided the medicines are not tampered and it has Service Provider’s/Pharmacy’s barcode on it, solely on any of the following accounts: (i) delivered damaged Products (ii) delivered expired or nearing expiry Products (iii) delivered incorrect product, the Service Provider in such conditions shall accept the returned Products and where the Customer so requires, replace it with correct Products or shall refund the amount received through the actual mode of payment.
  5. In case of order cancellation by Customer at any given point of time or stage of order, the Aggregator will confirm the same to the Service Provider via call/WhatsApp group/ email and the Service Provider shall call Customer to understand the reason for cancellation and upon confirmation in this regard, order will be considered as cancelled. Further, order can also be cancelled by Customer via the Service Provider, i.e. cancellations as communicated to the delivery agent of the Service Provider.
2. In accordance with Annexure B of PART-A of this Agreement, the Service Provider shall deliver the Products to the Customers as per the specifications. In the event the Customer communicates a preferred time slot to the Service Provider or the Aggregator at any point during the order placement process, the Service Provider and his representative/s shall honour such time slot.
3. In accordance with Annexure C of PART-A of this Agreement, the Service Provider shall ensure that their representative delivering the Products to the Customer collects payment for the Products either via cash or card or receive a successful payment confirmation over the mfine Platform. Once the Products are delivered and the payment for the same is received the order will be considered complete.
4. In event the Customer place an order for the prescribed drugs, the Service Provider is under an obligation to validate the prescription provided by the Customer. During validation of prescription, Service Provider shall ensure checking of the doctor’s name in full, his qualification and registration number with the hospital or clinic, the doctor’s signature and stamp, the date of consultation, the name of the Product and dosage, along with directions of use of the Product and frequency and duration and the name, gender and age of Aggregator’s Customer.
5. In event the Customer place an order for any Product other than prescribed drugs, the Service Provider is under an obligation to validate that the products ordered by the Customer does not require a prescription.
6. The Service Provider shall maintain a ledger/Google sheet on real time basis containing details of all the Products ordered by the Customers on the mfine Platform. The ledger/Google sheet shall record all details in relation to the Product, such as, date of order, price of the Product, type and quantity, prescription number, doctors name, payment details, etc. The Service Provider hereby agrees that the Aggregator has the right to, at any time, inspect the ledger maintained by the Service Provider.
7. In event Service Provider do not have permission or valid license to sell or deliver any item ordered by the Customer, the Service Provider reserve the right to refuse to accept such items for sale and/or delivery at your sole discretion.
8. The Service Provider shall raise an invoice at MRP of medicines to the Customers directly for each successful delivery of Products and upload the invoice on the mfine Platform.
9. The Service Provider agrees to take all such steps as may be required in the normal course to fulfil its obligations to supply the Products in accordance with this Agreement.
10. The Service Provider shall undertake verification including police verification of its representatives and ensure that its representatives shall conduct themselves in a professional manner while delivering Products and shall not engage in any argument with the Aggregator’s Customers while confirming orders or delivering the Products. In case of any issue faced by them while performing their services, they shall route such concerns through the Service Provider.
11. The Service Provider shall be solely responsible for conduct of its representatives while delivering of Products, delivery of wrong or expired Product, collection of payment and the Aggregator shall in no manner be directly or indirectly responsible for such acts or omissions of Service Provider’s representatives.
12. The Service Provider hereby agrees that the Aggregator does not have any control over the Customer and is not responsible for the order placed by the Customer on the Platform. The Service Provider also acknowledges and agrees that the Aggregator is not responsible for verifying the authenticity of the prescription. The Service Provider hereby further agrees that the Aggregator does not and shall have no liability with respect to the authenticity of the Products being delivered through the Platform.
13. 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.
14. The Service Provider shall not share such Customer’s data with any third parties.
15. The Service Provider shall not use Aggregator’s intellectual property rights including brand name, logo, name, any images etc. for any marketing activities etc. except with prior written consent of the Aggregator.
16. The Service Provider agrees to provide the Products within the Territory as per Applicable Laws and as per the terms and conditions laid down in this Agreement.
17. The Service Provider shall ensure that the Products supplied by the Service Provider are strictly in accordance with the prescription (both in terms of quantity and name of Products) shared by the Aggregator and are in compliance with all Applicable Laws, including with the conditions laid down under the Drugs and Cosmetics Act, 1940 and the rules made thereunder and are in particular, authentic, genuine, are of standard quality and are not misbranded, adulterated or spurious.
AGGREGATORS OBLIGATIONS AND LIABILITIES:
1. The Aggregator shall share details of Customers (including name, contact details, address, preferred delivery date, prescription etc.) who wish to avail Product delivery services through the mfine Platform, with the Service Provider vide any agreed process between the Parties.
2. The Aggregator shall route any concerns of Customers regarding Product delivery or order cancellation to the Service Provider via email/phone call to its designated point of contact.
3. The Aggregator shall, at all times, act in compliance with the Information Technology Act, 2000 and the rules and regulations made thereunder.
4. The Aggregator shall not be construed as the seller of the Products and it is merely a facilitator of delivery of Products between the Service Provider and the Customers.
5. The Aggregator shall in no manner be liable for or responsible towards the underlying sale between the Service Provider and the Customer. The Aggregator hereby disclaims and excludes all warranties with respect to the Products, all services, information contained on an order, express, implied or statutory.
6. The Aggregator shall maintain a record containing details of all the Products ordered by its customers through a Google sheet/Google form or any other mode as mutually agreed between the Parties.
PAYMENT TERM AND SETTLEMENT:
1. In event the Aggregator agrees to make payment of agreed amount to the Service Provider as an additional interest free refundable deposit (“Security Deposit”) (detailed in Annexure A of Part-A of this Agreement). Such payment shall be made via cheque (details of the cheque will be shared over the email) or through NEFT/IMPS and the receipt of which will be acknowledged by the Service Provider. The Security Deposit can be adjusted by the Service Provider against the scheduled invoice’s or any other amount payable to the Service Provider during the notice period for termination of this agreement. Otherwise, the Service Provider is under the obligation to immediately refund the entire Security Deposit to the Aggregator post termination of this Agreement. The Security Deposit is fixed for the initial term as well as for renewals if any of this Agreement and the Service Provider agrees not to demand any increase in this Security Deposit during the initial term or during any renewed terms of this Agreement. Subject to the prior written intimation to the Aggregator, the Service Provider is permitted to liquidate it only in the event the Aggregator is in breach of its payment obligations under the Agreement.
2. The Service Provider by the end of each month shall provide the details of Services fulfilled by them through mfine Platform along with the total payment received from the Customer (“Fulfilment Details”).
3. The Aggregator as per the agreed frequency for settlement shall provide the details of settlement to the Service Provider along with the agreed commission to be paid by the Service Provider to the Aggregator, and details of the payment received from the Customer by the Aggregator or its partners against the orders fulfilled by the Service Providers (“Settlement Details”).
4. The Aggregator shall raise an invoice to Service Provider within three (3) days from the receipt of confirmation provided by the Service Provider against the Settlement Details.
5. All payment exchanges between the Aggregator 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.
6. 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.
7. The Service Provider agrees that any payment dispute pertaining to the Services rendered by it shall not affect the continuity of such Services.
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 pharmacy 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 three (3) years from the Effective Date.
3. The Aggregator hereby further represents and warrants that it is a technology enabled platform and is not carrying on any pharmacy business and is not an online pharmacy or e-pharmacy nor does it perform any services that could render it as an online pharmacy or e-pharmacy.
DATA PROTECTION: The Service Provider shall keep all Customer data as well as data shared by the Aggregator securely in accordance with the Aggregator’s privacy policy and shall indemnify the Aggregator for any breach in relation to the same to the Aggregator.
TERMINATION:
1. The Aggregator 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 Aggregator 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 or for the sale of any Product requiring a prescription, without a valid prescription to the Customer by the Service Provider or for the sale of Product that are below the standard quality or prohibited from sale under any law or for which the Service Provider does not have a valid license;
2. The Service Provider shall be entitled to terminate this Agreement upon prior written notification of thirty (30) days to the Aggregator, in the event the Aggregator has breached any of its material obligations set out in this Agreement.
CONFIDENTIALITY:
1. The Parties shall maintain absolute confidentiality about any matter (including the existence of this Agreement, Customer 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.
INDEMNITY: The Service Provider hereby covenants and represents that it shall comply with the covenants and obligations as contained herein. Further, the Service Provider, shall indemnify on demand and hold harmless and shall keep the Aggregator 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.
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.
NOTICE
1. All notices, requests and other communication required or permitted under this Agreement shall be in writing signed by the Party (or any Person duly authorised) giving it, and shall be delivered by personal delivery, certified or registered mail or by reputable courier to the relevant address, or by sending it by facsimile transmission to the relevant facsimile number as notified herein below.
2. In the case of notices to Aggregator:
  
  Address: Salarpuria Satva Supreme, 2nd Floor, West Wing, Marathahalli Village, Marathahalli, Bangalore, Karnataka 560037
  
  E-mail: Legal@mfine.co
3. All notices given in accordance with Clause 11 shall be deemed to have been served as follows:
  1. if delivered by hand, at the time of delivery;
  2. in case of notice sent inland, on the expiration of three (3) Business Days after the date of dispatch;
  3. in case of notice sent overseas, on the expiration of seven (7) Business Days after the date of dispatch; and
  4. if communicated by e-mail, on the next Business Day.
4. 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.
5. 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.
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.
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. 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.
3. 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.
4. Conflict or Inconsistency: In the event there is any conflict or inconsistency between the terms and conditions of this Part-B and the terms and conditions of the Part-A, the terms and conditions of the Part-A shall govern and control the rights and obligations of the parties.
5. 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.
6. Amendments: No amendments to this Agreement shall be effective unless made in writing and signed by each of the Parties.
7. 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 Aggregator or its reputation or which would reasonably be expected to lead to unwanted or unfavourable publicity to the Aggregator.
8. Assistance in Litigation: The Service Provider shall, upon reasonable notice, furnish such information and proper assistance to the Aggregator, at the cost and risk of the Aggregator, 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.
9. 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 Aggregator shall terminate this Agreement forthwith.
10. Counterpart: Part-A of this Agreement may be executed in counterparts, each of which shall have the effect of and be considered as an original of this Agreement.

Address:	Salarpuria Satva Supreme, 2nd Floor, West Wing, Marathahalli Village, Marathahalli, Bangalore, Karnataka 560037
E-mail:	Legal@mfine.co