With the endeavour to efficiently use digital media, our vision
is to reach out to the community at large, enabling them to make use of the
ease and convenience of the DIGITAL ECONOMY.
Frenosis in its pursuit of the aforesaid vision, has
created an Android/IOS based application (“App”)
and a web-based platform (“Website”)
which would serve as a digital intermediary between users and Labs. Frenosis through its Healthcare
Vertical connects Diagnostic Centres (“Lab(s)”)
and nursing support, aaya providers (“Homecare Service Provider”) within the
local limits of the user, depending on their current location, in order to
provide various diagnostics and homecare services at affordable and uniform
prices, including home collection for samples, on-call consultation, nursing
support etc.
The below are the general terms of engagement:
The Frenosis Engagement Agreement with the Listed
Entity (“Agreement”) along with this
Terms of Use (“Terms of Use”),
represents and confirms our mutual Terms with respect to the Listed Entity’s (“Listed Entity” or “You”
or “Yourself”) participation
currently made available by Frenosis Private Limited (“Frenosis” or “We” or “Our”) or its affiliates,
from time-to-time, on the Platform. Upon signing by both parties of the
Agreement, the Agreement together with this Terms of Use shall be binding and
enforceable legal contract between the respective Listed Entity and Frenosis as
of the date set forth in the Agreement (“Effective
Date”)
All
capitalized terms unless defined herein otherwise shall have the same meaning
as set out in the Agreement.
The Terms
with you are as follows:
1. STRUTURE OF TERMS
1.1.
Our Terms shall consist of this Terms of
Use, together with the Agreement along with any and all such addenda
(individually, an “Addendum”), schedules and annexures, if any, addressing
areas of collaboration agreed to by Frenosis and You (this Terms of Use and Agreement
are collectively the “Terms”).
1.2.
In connection with each Agreement, along
with any and all such addenda, schedules and annexures, if any, Frenosis will
designate those actions, responsibilities and services to be respectively
provided each by Frenosis and You.
1.3.
In the event of a conflict, the terms
contained in an Agreement will supersede conflicting terms contained in these
Terms of Use.
2.
INTENDED
PROJECTS:
2.1.
We each agree to work in good faith with
one another on certain collaborative projects, (as described below) or other
projects as we mutually agree, through all or any such Addedum to the Agreement
, in connection with the providing services, which include diagnostic centre services and homecare services such as nursing
support, aaya providers within the local limits of
the User (defined below), depending on their current location, at affordable
and uniform prices, including home collection for samples, on-call
consultation, nursing support etc. [each a “Listed Service(s)”] via the App and
Website collectively referred to as, the "Platform".
2.2.
Each project will be further specified in the
respective Agreement with You, and any such project will only be undertaken once
we mutually execute such Agreement.
3.
The Listed Service(s) visible on the Platform
is the general availability of Listed Service(s) during the Listed Entities’
normal business hours. The Listed Entities’ customers (the “Buyers” and/or “Frenosis Platform Users”/” User(s)”)
may select Listed Service(s) from the displayed search listing(s) on the
Platform.
4. AVAILABILITY OF LISTED SERVICES
4.1.
Frenosis will provide You reasonable
advice regarding demand prediction, which You may use in connection with Your
determination of the quantity and type of Listed Service(s) made available via
the Platform. You are fully responsible for quality, efficacy, safety, hygiene
and provisioning of the Listed Service(s) along with the fee/ charge for the
said services and You shall adhere to all applicable laws and regulations in
relation to the preparation and provision of the Listed Service(s). You will
determine any quality, efficacy, safety or other criteria (including those of
laws and regulations) that apply to the Listed Service(s) (“Criteria”) and You are solely
responsible for ensuring that the Listed Service(s) meet such Criteria when
then are made available via the Platform. In the event of failing to provide
Listed Service(s) that adhere to the Criteria (each, a “Substandard Listed Service(s)”), Frenosis is under no obligation to
make such Substandard Listed Service(s) available for sale via the Platform.
4.2.
You are responsible for determining and
setting the retail price (“Retail Price”)
for each Listed Service(s) and duly informing Frenosis from time to time,
including any Listed Service(s) discount(s)/discounts on offer from time to
time. You shall be the “retailer” or “seller” of all Listed Service(s) in
general as well as for the purpose of any indirect tax (such as value added
tax, sales tax, service tax, goods and services tax) (“Indirect Tax”) and the responsible party for collection and
remittance of applicable Indirect Tax. For the sake of clarity, the Retail
Price for each Listed Service(s) shall include Indirect Tax, as applicable. You
undertake that all applicable taxes on item(s) & delivery would be
deposited by You with the government treasury within stipulated timelines.
Except as may be expressly agreed in the Agreement, Frenosis and You shall be
responsible for its respective expenses and costs during its performance under
this Terms.
4.3.
You acknowledge that You are the sole
provider/ supplier of the Listed Service(s). You are responsible for the costs
of all Listed Service(s). Whenever a User wishes to avail Listed Service(s) as
identified by the Platform, Frenosis will notify You of the specifications and
particulars of the order as is received from the User. Upon receipt of an order
request from a User, You shall keep ready the service to be provided as
required by the User. In the event the specifications are not sufficient for
You to process any order, You must seek further
information as required.
4.4.
Notwithstanding these Terms, Frenosis reserves
the right to temporarily discontinue Listed Service(s) or permanently terminate
with immediate effect for material breach or non-compliance by You which
includes, but is not limited to, the following instances:
4.4.1.User/Buyer
complaints received by Frenosis which are directly or indirectly attributable
to the quality of Listed Service(s) provided by You either through poor
ratings, as defined by Frenosis, through calls placed with Frenosis or through
any other means;
4.4.2.Breach of the
provisions of any law applicable to You for provision of the User requested
Listed Service(s);
4.4.3.Breach of the
representations and warranties of the Listed Entity;
4.4.4.Any other
material breach of the Terms.
4.5.
You are responsible for costs related to
reimbursement to the Users in the event Users have either refused to pay for or
have claimed partial or full refund, as applicable, for reasons that are
attributable to You, including but not limited to, User’s expectations not
being met or User dissatisfaction in relation to, inter alia, the quality of the User requested Listed Service(s),
undelivered Listed Service(s), and/ or discrepancy in the User requested Listed
Service(s) provided which is not in accordance with the Listed Service(s)
placed (“Disputed Orders”).
4.6.
It is clarified that Frenosis shall not be
liable to make any payment for a Disputed Order. Frenosis shall reserve the
right to recover from the Listed Entity, the amount paid to Users/Buyers as
refund upto the order value.
4.7.
In case of complaints from the User
pertaining to quality, safety, Criteria or any other such issues, Frenosis shall
notify the same to Listed Entity and shall also redirect the Buyer to the
consumer call center of the Listed Entity. Listed Entity shall alone be liable
for redressing and bound to take action on the complaints by the User. Frenosis
has the right to share with the Listed Entity, the relevant information including
the Listed Entity details to enable satisfactory resolution of the complaint. Frenosis
shall in the interest of satisfactory resolution of the complaint, share with
the User, relevant information pertaining to the order along with Listed Entity
details.
4.8.
In consideration for use of the Platform i.e. the App and the Website, Frenosis will charge You a
service fee (defined below) as specifically set forth on each applicable Agreement.
All fees under these Terms shall be paid in Indian Rupees along with Indirect
Tax and withholding tax, if applicable.
5. PROMOTIONAL ACTIVITIES
5.1.
Frenosis will each showcase the
availability of the Listed Entities via the Platform through various promotional
activities (e.g., our respective social media channels, websites, or blogs), as
mutually agreed in the Agreement.
5.2.
5.3.
Subject to the terms and conditions of
this Terms, each party hereby grants to the other party (and, in the case of
Frenosis, to its affiliates) a limited, non-exclusive and non-transferable
license during the Term to use the such party’s respective Marks (as defined
below), on a royalty-free basis, for the sole purpose of performing the
promotional activities as set forth in an applicable Agreement. For purposes of
this Terms, the term “Marks” will mean the trademarks, service marks, trade
names, copyrights, logos, slogans and other identifying symbols and indicia of
the applicable party. All uses of a party’s marks by the other party will be in
the form and format specified or approved by the owner of such Marks. Except as
expressly set forth herein, neither party will use the other party’s Marks
without the prior, express, written consent of the other party. All goodwill
related to the use of a party’s marks by the other party shall inure to the
benefit of the owner of such Marks. Except as expressly set forth herein,
neither party shall be deemed to grant the other party any license or rights
under any intellectual property or other proprietary rights.
5.4.
Except as may be expressly set forth in
this Terms or an applicable Agreement, neither party may issue a press release
or otherwise refer to the other party in any manner with respect to this Terms
or otherwise, without the prior written consent of such other party.
5.5.
“Personal Data” means any information
obtained in connection with this Terms (a) relating to an identified or
identifiable natural person; (b) that can reasonably be used to identify or
authenticate an individual, including but not limited to name, contact
information, precise location information, persistent identifiers; and (c) any
information that may otherwise be considered “personal data” or “personal information”
under the applicable law. The Listed Entity agrees to use, disclose, store,
retain or otherwise process Personal Data solely for the purpose of performing
the Listed Service(s) contemplated by this Terms. Listed Entity shall maintain
the accuracy and integrity of any Personal Data provided by Frenosis in its
possession, custody or control. Listed Entity agrees to retain Personal Data
provided to the Listed Entity provided by Frenosis solely by using the software
and tools provided by Frenosis.
6. REPRESENTATIONS AND WARRANTIES:
6.1.
Each party hereby represents and warrants
that: (a) it has full power and authority to enter into this Terms and perform
its obligations hereunder; (b) it is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its origin; (c) it has not
entered into, and during the Tenure (as defined below) will not enter into, any
Terms that would prevent it from complying with or performing under this Terms
(in Your case, including without limitation, any exclusive Terms with any third
parties for the availability of item via a technology platform); and (d) the
content, media and other materials used or provided as part of this Terms shall
not infringe or otherwise violate the intellectual property rights, rights of
publicity or other proprietary rights of any third party
6.2.
The Listed Entity further represents and
warrants that it will comply with all applicable laws and regulations in its
performance of this Terms.
6.3.
The Listed Entity further represents and
warrants that the details of the tax registrations provided by the Listed
Entity and Indirect tax to be levied on each Listed Service(s) to be made
available for sale via the Platform is as per Addendum II to the Agreement),
forming integral part of this Terms. The Listed Entity further confirms and
declares that the information provided in Addendum II to the Agreement and the
copies of tax registrations, are true and correct, and assumes responsibility
to intimate Frenosis in case of any change in the provided information. The Listed
Entity undertakes that all Indirect Tax applied on each Listed Service(s) and
Delivery made available for sale via the Platform would be deposited with the
Government Treasury within stipulated timelines.
6.4.
EXCEPT AS SET FORTH HEREIN, EACH PARTY
MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PURPOSE OF THIS TERMS.
7. INDEMNIFICATION
7.1.
Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the
other party, its affiliates and their respective directors, officers, employees
and agents (the “Indemnified Party”)
from and against any and all claims, damages, losses and expenses (including
reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related
to: (a) the negligence or wilful misconduct of the Indemnifying Party and its
employees or agents (in Your case, excluding Frenosis in their performance of
this Terms); (b) any claims that the Indemnifying Party breached its representations
and warranties in this Terms; (c) any claims that the Indemnifying Party’s
Marks infringe a third party’s intellectual property rights, as long as such
Marks have been used in the manner approved by the Indemnifying Party; or (d)
any breach and/or non-compliance with applicable data protection laws. In addition,
7.2.
You will indemnify, defend and hold
harmless the Frenosis/ Indemnified Parties from and against any and all Losses
with respect to any third-party claim arising out of or related to any harm
resulting from Your violation or alleged violation of any applicable retail or
other health and safety code, rule or regulation, except to the extent such
harm was directly caused by the gross negligence or wilful misconduct of Frenosis
or its employees or agents affiliates.
7.3.
Each Indemnified Party shall provide
prompt notice to the Indemnifying Party of any potential claim subject to
indemnification hereunder. The Indemnifying Party will assume the defense of the
claim through counsel designated by it and reasonably acceptable to the
Indemnified Party. The Indemnifying Party will not settle or compromise any
claim, without written consent of the Indemnified Party, which will not be
unreasonably withheld. The Indemnified Party will reasonably cooperate with the
Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense
8. TENURE AND TERMINATION
8.1.
The period of the Terms with the Listed
Entity (“Tenure”) shall be governed
by the terms and conditions set forth in the respective Agreement executed with
the Listed Entity.
8.2.
Either Frenosis or the Listed Entity can
terminate the Agreement providing 15 days’ prior written notice to the other in
accordance with the terms and conditions set forth in the Agreement. Frenosis shall
delist the Listed Entity at the end of the 15th Day. Upon termination in accordance
with the Terms hereof. Listed Entity shall only be required to provide the
Listed Service(s) already placed through Platform prior to such expiry or
earlier termination of these Terms.
9. GOVERNING LAW
9.1.
The Terms shall be governed by and construed
in accordance with the laws of India. Any dispute arising out of or in
connection with Listed Service(s), which the Parties are unable to settle
within 30 days, shall be referred to arbitration by a sole arbitrator appointed
mutually by both Parties. The Arbitration shall be conducted in accordance with
Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification
thereof for the time being in force. The venue of the arbitration shall be Kolkata
and the arbitration shall be conducted in English language. Subject to the
foregoing, the courts at West Bengal shall have exclusive jurisdiction.
10. LIMITS OF LIABILITY
10.1.
For the purposes of this clause, “Liability” means liability in or for
breach of contract, negligence, misrepresentation, tortious claim, restitution
or any other cause of action whatsoever relating to or arising under or in
connection with these Terms, including liability expressly provided for under
these Terms or arising by reason of the invalidity or unenforceability of any
term under this contract. Frenosis does not exclude or limit Liability for any
Liability that cannot be excluded by law. Subject to the preceding sentence, Frenosis
shall not be under any Liability for loss of actual or anticipated profits,
loss of goodwill, loss of business, loss of revenue or of the use of money,
loss of contracts, loss of anticipated savings, loss of data and/or undertaking
the restoration of data, fraudulent orders, any special, indirect or
consequential loss, and such liability is excluded whether it is foreseeable,
known, foreseen or otherwise. For the avoidance of any doubt, this clause shall
apply whether such damage or loss is direct, indirect, consequential or
otherwise. However, Frenosis will use its best endeavors to ensure that the
unintentional operational errors do not occur, Frenosis cannot provide any
warranty or guarantee in this regard. Notwithstanding anything to the contrary
herein set out, Frenosis’s aggregate liability under the
Terms shall not exceed the total value of a Disputed Order.
11. INSURANCE
11.1.
During the Tenure (as defined above) and
for one (1) year thereafter, the Listed Entity shall maintain General Commercial
Liability and, if required by law, Worker’s Compensation (or substantially
equivalent) insurance. The General Commercial Liability insurance policy limits
shall be the greater of (a) the limits required by applicable law or (b) the
limits customarily maintained by companies in the Listed Entity’s industry, in
India. All policies shall be written by reputable insurance companies in the
jurisdiction. Such insurance shall be primary and non-contributing to any
insurance maintained or obtained by the other party and shall not be cancelled
or materially reduced without thirty (30) days’ prior written notice to the other
party. Upon Frenosis’s request, the Listed Entity shall
provide evidence of the insurance required herein. In no event shall the limits
of any policy be considered as limiting the liability of a Listed Entity under
the Terms.
12. GENERAL
12.1.
We each acknowledge and agree that, unless
otherwise stated in the Terms, our relationship is non-exclusive.
12.2.
“Confidential
Information” means any confidential, proprietary or other non-public
information disclosed by one party (the “Discloser”)
to the other (the “Recipient”),
whether disclosed verbally, in writing, or by inspection of tangible objects.
Confidential Information will not include that information that (a) was previously
known to the Recipient without an obligation of confidentiality; (b) was
acquired by the Recipient without any obligation of confidentiality from a
third party with the right to make such disclosure; or (c) is or becomes
publicly available through no fault of the Recipient. Each Recipient agrees that
it will not disclose to any third parties, or use in any way other than as
necessary to perform the Terms, the Discloser’s Confidential Information. Each
Recipient will ensure that Confidential Information will only be made available
to those of its employees and agents who have a need to know such Confidential
Information and who are be bound by written obligations of confidentiality at
least as protective of the Discloser as this Terms before such individual has access
to the Discloser’s Confidential Information. Each Recipient will not, and will
not authorize others to, remove, overprint or deface any notice of copyright,
trademark, logo, legend, or other notices of ownership from any originals or
copies of the Discloser’s Confidential Information. The foregoing prohibition
on disclosure of Confidential Information will not apply to the extent the
Discloser has authorized such disclosure, nor to the extent a Recipient is required
to disclose certain Confidential Information of the Discloser as a legal
obligation based on the applicable laws and regulations or order of a court,
provided that the Recipient gives the Discloser prior written notice of such
obligation to disclose and reasonably assist in fi ling petition of objection
etc. prior to making such disclosure. Upon expiration or termination of this
Terms and as requested by a Discloser, each Recipient will deliver to the
Discloser (or destroy at the Discloser’s election) any and all materials or
documents containing the Discloser’s Confidential Information, together with
all copies thereof in whatever form.
12.3.
No Waiver: No failure
or delay by any Party in exercising any right, power or remedy under these
Terms or provided by law shall operate as a waiver thereof or affect that
right, power or remedy. No waiver by any Party of any breach by any other Party
of any provision hereof shall be deemed to be a waiver of any subsequent breach
of that or any other provision hereof.
12.4.
Relationship: The Parties
agree that nothing in this Terms shall be construed as creating the
relationship of employer and employee, master and servant, or principal and
agent, or a partnership, or a joint venture of any kind whatsoever between the
Parties or between the parties and its respective contractors / employees.
12.5.
Notice: All notices
under these Terms shall be sent by registered post acknowledgment due,
contemporaneous courier or email to the address mentioned below:
Frenosis
Private Limited
Registered Office: [●]
Email: [●]
If the Listed Entity notices any
discrepancy in the weekly settlement, the Listed Entity may raise a ticket by
writing an email to listedentitysupport@frenosis.com and the same
will be mutually resolved by both parties within 15 (fifteen) days from the
date on which the ticket was raised.
12.6.
Assignment: You cannot
assign or otherwise transfer the Terms, or any rights granted hereunder to any
third party without the informing Frenosis or seeking Our consent.
12.7.
Severability: If any
provision of these Terms is held by a court of competent jurisdiction to be
invalid or unenforceable, the remainder of the Terms which can be given effect
without the invalid provision shall continue in full force and effect and shall
in no way be impaired or invalidated.
12.8.
The failure of either party to enforce, at
any time or for any period of time, the provisions hereof, or the failure of
either party to exercise any option herein, shall not be construed as a waiver
of such provision or option and shall in no way affect that party’s right to
enforce such provisions or exercise such option
12.9.
Any modification or amendment to this
Terms shall be effective only if in writing and signed or sealed with print
name by both parties. In the event any provision of this Terms is determined to
be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction,
the remainder of this Terms and each of the remaining terms and conditions
contained herein) shall remain in full force and effect.
12.10.
Any delay in or failure by either party in
performance of this Terms shall be excused if and to the extent such delay or
failure is caused by occurrences beyond the control of the affected party
including, but not limited to, decrees or restraints of Government, acts of
God, strikes, lockdowns, work stoppage or other labour disturbances, war or
sabotage (each being a “Force Majeure
Event”). The affected party will promptly notify the other party upon
becoming aware that any Force Majeure has occurred or is likely to occur and
will use commercially reasonable efforts to minimize any resulting delay in or
interference with the performance of
its obligations under this Terms. This Terms may not be assigned, in whole or
in part, by a party without the prior written consent of the other party,
provided that each party may assign this Terms, upon notice to the other party,
to (a) an affiliate of Frenosis (for Frenosis), or (b) in connection with the
sale of all or substantially all of such party’s equity, business or assets.
Subject to the foregoing, this Terms shall be binding upon and shall inure to
the benefit of each party hereto and its respective successors and assigns. Nothing
in this Terms shall be deemed to create any joint venture, joint enterprise, or
agency relationship among the parties (except as specifically set forth in Agreement)
and no party shall have the right to enter into contracts on behalf of, to
legally bind, to incur debt on behalf of, or to
otherwise incur any liability or obligation on behalf of, the other party
hereto. Each party shall be solely responsible for its employees and contractors
used in connection with this Terms. This Terms contains the full and complete understanding
and Terms between the parties relating to the subject matter hereof and
supersedes all prior and contemporary understandings and Terms, whether oral or
written, relating such subject matter hereof. This Terms may be executed in one
or more counterparts and by exchange of electronically signed counterparts
transmitted by pdf format or exchange by hard-copy, each of which shall be
deemed an original and all of which, when taken together, shall constitute one
and the same original instrument
13.
SPECIAL TERMS
13.1.
Frenosis will give You information
regarding the number of Listed Services provided/ supplied by You to the Users
pursuant to the Terms. The Listed Entities shall maintain such documents to
record the proof of performance of service. Without prejudice to the generality
of the aforesaid, Listed Entities shall routinely and at such time intervals
provide such reports and in such formats as may be specified by Frenosis.
13.2.
In consideration for Frenosis’s
lead generation, demand prediction, payment processing and other related
services provided via the Platform under the Terms, Frenosis will charge You a
service fee, agreed under Agreement and reiterated under the Addendum II to the
Agreement (exclusive of Indirect Tax and withholding tax, if any) on Service
Value, as defined under the Agreement (the “Service Fee”). This Service Fee is charged as consideration for
expediting the Users’ orders via the Platform.
13.3.
Collection by Frenosis from Users on Your
behalf would be subject to tax deduction or collection at source in accordance
with the applicable GST laws.
13.4.
Frenosis will remit to You the total (i)
Retail Price payment (including any Indirect Tax collected on Your behalf but
reduced by the Service Fee and tax deduction/ collection at source) earned by You,
(ii) less any refunds given to Your customers or Users (such final remitted
amount being the “Listed Service(s)
Revenue”).
13.5.
Listed Service(s) Revenue received by
Frenosis from the User on behalf of the Listed Entity will be settled into the Listed Entity’s bank account, details of
which are set forth in Addendum II to the Agreement. Settlement of transaction
payments shall be within the time period as set forth by the guidelines of the
Reserve Bank of India, where applicable. The Listed Entity agrees to provide
such documents and information necessary or as may be sought by a payment
facilitator or bank to enlist the Listed Entity as a payee of Frenosis. The
Listed Entity agrees that for this purpose, information about and provided by
the Listed Entity will be shared with a payment facilitator or bank.
In case of any queries, please reach out to us at support@frenosis.in
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