Definitions Affiliates “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with Evolko/First party. Order Form “Order Form” means the ordering documents for purchases hereunder, including addenda thereto that are entered into between First Party & Second Party from time to time. Order Forms shall be deemed incorporated herein by reference. Purchased Services "Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between First party & Second party from time to time. Order Forms shall be deemed incorporated herein by reference. Services “Services” means the online, Web-based application and Mobile App platform provided by the First party via www.evolko.com and/ or that are ordered by Second party under an Order From, including associated offline components & hardwares but excluding Third Party Applications. Users “Users” means Doctors, Medical Staff and second party employees who are authorized by Second party to use the Services, for whom subscriptions to the Services have been purchased, and who have been supplied user identifications and passwords by Second party (or by FIRST PARTY at SECOND PARTY’s request).
DESCRIPTION OF Evolko Solutions The use of Evolko Solutions is provided to Second party as subscription service on the web that enables Second party for the management of Patient Screening, Patient Monitoring and Remote OPD etc.
ACCEPTANCE OF THE TERMS AND CONDITIONS Evolko, its subsidiaries and affiliated companies offer this Evolko Solutions to Second party if Second party click on the acceptance button. By clicking on the acceptance button which follows the online Agreement (marked "Do you accept these terms and conditions?'), or by signing this agreement, Second party indicate that user is of legal age to formal binding contract and users-Second party are not a person barred from receiving services under the laws of INDIA or other legal jurisdiction and Second party further indicate acceptance of the terms and conditions of this Agreement and limitation of liability as set out in this Agreement. Such acceptance shall be either on Second party own behalf or on behalf of any corporate entity which employs Second party or which Second party represent. By accessing and using the Evolko Solutions, Second party accept and agree to be bound by and abide by the terms and provisions of these Terms and Conditions. In addition, when using particular Evolko owned or operated services, Second party and Evolko shall be subject to any posted guidelines or rules applicable to such services, which may be posted and modified from time to time.
CHANGES IN AGREEMENT
First party reserve the right to periodically change the Terms and Conditions outlined herein with or without notice, as First party may deem fit. Second party shall be responsible for periodically checking these Terms and Conditions for such changes thereto. The changed Terms and Conditions shall become effective immediately upon First party publishing them onto the Website and any access and use of the Website after accepting the changed Terms and Conditions that have been published on the Website signifies Second party deemed consent to the changes. The Second party will be able to find the most current version of this agreement at www.evolko.com
Provision of Purchased Services - Evolko will make the services which Second party have opted or available to them pursuant to this Agreement and the relevant Order Forms, during the subscription term, as may be applicable and enumerated. The Second party agree that the purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by First party regarding future functionality or features.
Unless otherwise specified in the Order Form, as may be applicable, (i) services are purchased as user subscriptions and may be accessed by no more than the specified number of users, (ii) additional user subscriptions may be added during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time the additional user subscriptions are added, and (iii) the added user subscriptions shall terminate on the same date as the pre ¬existing subscriptions. User subscriptions are for designated users and cannot be shared or used by more than one user but may be reassigned to new users replacing former users who no longer require ongoing use of the services, as may be applicable. On request from Second party, the First party will reassign the services to new users under the provisions of this agreement.
FEES AND PAYMENT FOR PURCHASED SERVICES
User Fees: Buyer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form,
- fees are quoted and payable in Indian Rupees
- fees are based on services purchased and not actual usage,
- payment obligations are non-cancelable and fees paid are non¬refundable, and
- the number of user subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly/ quarterly/yearly periods that begin on the subscription start date and each monthly/ quarterly/ yearly anniversary thereof.
Invoicing and Payment:
Invoicing and Payment: The Second party will provide Evolko with a valid purchase order and payment method reasonably acceptable to First party. Evolko will invoice Second party in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 7 days from the invoice date. In the event Evolko does not receive payment within 30 days of date of invoice the user account will be suspended till the payment is received. User account will be terminated if the payment is not received within 60 days of date of the invoice. User can restart the account by paying applicable restart fee.
Evolko fees do not include any taxes, cess, levies, duties or value-added, sales, service taxes, assessable by any local, VAT,G ST, central jurisdiction or similar governmental taxes of any nature (collectively called “Taxes”)as applicable from time to time. The Second party is responsible for paying all Taxes associated with user purchase hereunder in addition to usage fee. If Evolko has the legal obligation to pay or collect Taxes for which Second party is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Second party, unless Second party provide Evolko with a valid tax exemption certificate authorized by the appropriate taxing authority.
REGISTRATION DATA, PASSWORD AND ACCOUNT SECURITY
In consideration of Second party’s use of the Evolko Solutions, Second party agree to
- provide accurate, current and complete information about user as may be requested for by the Evolko Solutions (hereinafter referred to as "Personal Data');
- fees are based on services purchased and not actual usage,
- maintain and promptly update the Personal Data; and
- be solely and fully responsible for all use of Second party account and for any actions that take place using Second party account. Second party is responsible for maintaining confidentiality of user account password. Second party agree to immediately notify Evolko of any unauthorized use of their password or account or any security breach. Evolko cannot and will not be liable for any loss or damage arising from Second party failure to provide First party accurate information to keep user password secure.
OWNERSHIP OF MATERIALS EVOLKO’s PROPERIETARY RIGHTS
The Second party agree that the Evolko Solutions and its contents, including but not limited to the text, images, graphics, audio-visuals, videos, artworks, imaging, positioning, use or combination of colors, images, combination of fonts, together with all information and data posted, software used herein contain proprietary and confidential information that is protected by applicable intellectual property, copyrights, trademarks, service marks, patents and proprietary laws irrespective of the form and manner in which its copies may exist. www.evolko.com, Evolko company names and logos and all related products and service names, design marks and slogans are trademarks and service marks owned by Evolko or its Affiliates. The Second party is not authorized to use any name or mark of www.evolko.com or Evolko in any advertisements, publicity matter or in any other commercial manner without the prior written consent of Evolko. Requests for authorization should be made to email@example.com
- Subject to Terms of this agreement on paying the subscription fee for the use of Evolko Solutions, Evolko grants to Second party a non- transferable and non- exclusive right and license to use the object code.
- The Second party is prohibited from allowing any third party to access Services (include the word "services" in the definitions) except as permitted herein.
- Unless otherwise permitted herein or in an Order Form or specifically authorized in a written agreement Second party agree not to (i) modify, rent, lease, loan, sell, distribute, create derivative work Based on Content, Services in whole or part (ii) Reverse engineer the Services or (iii) access the Services in order to (a) build a competitive product or service, or (b) copy any feature, function or material owned by Evolko.
- The Second party is prohibited from data mining, scraping, crawling, or using any process or processes that send automated queries to this Website.
- The Second party may not vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the data or information posted on this Website.
- Ownership of all hardware items like kiosk, tablets, medical equipment etc, if provided by Evolko shall rest with Evolko. However, the responsibility of it’s safety, security and upkeep shall be of Second party. The second party shall be liable to meet the cost of damages/loss, if any, caused to the said items of hardware during the tenure of this agreement. A list of items provided by Evolko is attached as annexure to the order form.
- The First party is required to bear expenses towards all consumable items like Toner, paper, batteries and it’s fixations and running maintenance of hardware items provided by the first party. Evolko offers the facility of upto 5 (five) free sms’s to each user per month. The second party shall be required to pay the cost of SMSs if it exceeds the aforesaid limit
USER CONTENT POSTED ON THE EVOLKO SOLUTIONS
Posting of such User Content: The Second party understand that they are solely responsible for the photos, profiles, information, name, email address, address, age, gender, place of work, telephone number, and other content that Second party upload, publish or display (hereinafter referred to as “Personal Content") on the Evolko Solutions or transmit to or share with other users of the Evolko Solutions (hereinafter collectively referred to as the "User Content"). The Second party hereby undertake to not post, transmit, or share User Content on the Site or Service that Second party did not create or that Second party do not have permission to post. Second party understand and agree that the Evolko may review the Evolko Solutions and may delete or remove (without notice) any User Content in it’s sole discretion. Second party agree not to publish anything which has content relating to pornography, obscenity, pedophilia, hateful content based on race or ethnic origin, religion, disability, gender, age, veteran status, and sexual orientation /gender identity, has violent content, where the copyright lies elsewhere with another person/ organization, is private and confidential in nature, has the effect of impersonation, unlawful use of services, sends or is intended to send spam, malicious codes and viruses. By posting User Content to any part of the Evolko Solutions, Second party automatically grant, and Second party represent and warrant that Second party have the right to grant, to Evolko an irrevocable, perpetual, non-exclusive, transferable, fully paid up, worldwide license including the right to sublicense, to use, copy, reformat, translate, excerpt (in whole or in part) and distribute such User Content for such purposes as may be agreed. If Second party choose to remove their User Content, the license granted above will automatically expire, however Second party acknowledge that the First party may retain archived copies of your User Content. The Second party retain full and complete ownership of all of their User Content and any intellectual property rights or other proprietary rights associated with Second party User Content.
Use of such User Content
The Second party agree not to use any user content which has been uploaded on the servers for any immoral and illegal activities, namely, any activities which are contrary to the laws, bye laws and regulations of the Central or State Government or state agency who has jurisdiction over such content. The Second party agree not to use any user content for any purposes other than the purposes outlined in this Agreement. The Second party agree to disclose such user content only to third parties on a need to know basis. Second party agree to be responsible for the actions of any third party to whom such user content is disclosed.
Definition of Confidential Information
As used herein, "Confidential Information” means all confidential information disclosed by a party (“Disclosing Party") to the other party (“Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Second party Confidential Information shall include User Content; The first party Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than User Content) shall not include any information that
- is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
- was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
- is received from a third party without breach of any obligation owed to the Disclosing Party, or
- was independently developed by the Receiving Party.
Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
Protection of User Content.
Without limiting the above, First party shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of User Content. First party shall not
- modify User Content,
- disclose User Content except as compelled by law or as expressly permitted in writing by Second party, or
- access User Content except to provide the Services or prevent or address service or technical problems, or at Second party request in connection with customer support matters.
Disclosure as compelled by law. The Receiving Party may disclose Confidential information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the Disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential information.
DISCLAIMERS AND WARRANTIES
The Evolko Solutions and such other external link/s provided herein and the content thereof, are provided "as-is" and without warranties of any kind, whether express or implied, including but not limited to implied warranty of accuracy, completeness, reliability, merchantability or fitness for a particular purpose and non- infringement. Any material downloaded or otherwise obtained through the use of Evolko Solutions is done at second party own discretion and risk and that second party will be solely responsible for any damage to their computer system or other device or loss of data that results from the download of any such material. No advice or information, whether oral or written obtained by second party from Evolko Solutions shall create any warranty not expressly stated in the terms any information/ data provided in this website about the separate third party service providers and/ or Evolko and/or any conclusions based on the available information/ data does not necessarily reflect the views of Evolko and/ or its affiliates.
Visitors to this Evolko Solutions access the Evolko Solutions at their own risk. The photographs, images, audio-visuals and the videos used herein are purely for illustrative purposes only. This Evolko Solutions may include technical inaccuracies or typographical errors, and first party make no guarantees, nor can first party be responsible for any such information, including its authenticity, currency, content, quality, copyright compliance or legality, or any resulting loss or damage. Second party may have arrived on Evolko Solutions by means of some link provided by a third party. Second party understand that any such links are provided by third parties to this site and who have no connection to evolko whatsoever. Evolko neither endorses the contents of such websites nor do first party endorse the creators or the hosts of such websites, unless expressly stated in writing otherwise. First party may also provide certain links to other third party websites within Evolko Solutions as a convenience to second party. The second party understand that this is purely for their understanding and convenience, and any decision that second party might take on the basis of such reading is entirely their choice. First party do not endorse the contents of such websites nor do first party endorse the creators or the hosts of such website, unless expressly stated in writing otherwise. When second party click on external links from this website, their browser automatically may direct second party to a new browser window that is not hosted or controlled by Evolko. First party are not responsible for the content, functionality, authenticity or technological safety of these external websites. First party reserve the right to disable links to or from third-party sites to first party Solutions, as first party may deem fit. This right to disable links includes links to or from advertisers, sponsors, and content partners that may use first party trademarks as part of a co-branding relationship. Some external links may produce information that second party may find objectionable, inappropriate, or offensive. First party is not responsible for the accuracy. Relevancy, copyright compliance, legality, or decency of material contained in any externally linked websites.
The Second party agree to access and use Evolko Solutions and such other external link/s provided herein at its/ their risk. Evolko, its affiliates or service providers, shall not, be responsible or liable in any manner whatsoever for any direct, indirect, incidental, consequential or punitive damages arising out of any access, use or inability to use Evolko Solutions or such other external link/s provided herein, including but not limited to any errors or omissions in the content thereof, loss of data, revenue, profits, property, attack by viruses, failure to provide Website Services and the like. Neither Evolko nor any party involved in creation, production or delivery of this Website or whose materials or information/data appear in Evolko Solutions shall be liable for any damages, including without limitation to, any failure of performance, error, omission, interruption, defect thereof. Second party, the user of this evolko solutions assumes all responsibility and risk for the use of this evolko solutions and the internet generally. The foregoing limitations shall apply to the fullest extent permitted under applicable law.
The Second party agree to indemnify, defend and hold harmless Evolko from and against any and all loss, damages, claims, liabilities, expenses and costs, including, without limitation, regulatory penalties, attorneys' fees and costs incurred by Evolko in connection with any claim arising out of THEIR use of the Evolko Solutions or any breach by the Second party of the terms and conditions herein or due to infringement of the trademark, copyright or any other intellectual property rights of Evolko or any other third party service provider and/or Second party’s violation of any other law whatsoever.
Term of Agreement:
This Agreement commences on the date the Second party accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated.
Term of Purchased User Subscriptions:
User subscriptions purchased by the Second party commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (which ever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The first party will inform the second party per-unit pricing to be charged during any such renewal term at least 15 days before the end of such prior term, in which case the pricing to be charged shall be effective upon renewal and thereafter. Any such pricing shall not exceed 10% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
Termination for Cause:
A party may terminate this Agreement for cause:
- upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or
- if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Refund or Payment upon Termination:
There will be NO refund in the first two years of the service (lock -in period). In subsequent years, upon any termination for cause by the Second party, the First party shall refund the Second party any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In case of termination during the lock in period, the second party shall be obliged to pay to Evolko usage fee for the remainder period and cost of hardware items supplied under the agreement. Upon any termination beyond the lock-in period, the Second party shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination and handover the hardware items provided, if any, by Evolko.
Return of the Second party Data:
Upon request by the Second party made within 30 days after the effective date of termination of a Purchased Services subscription, the First party will make available to the Second party for download a file of the Second party Data in comma separated value (.csv) format along with attachments in their native format along with data structure . After such 30-day period, the First party shall have no obligation to maintain or provide any of Second party’s data and shall thereafter, unless legally prohibited, delete all the Second party data in the First party systems or otherwise in First party possession or under Evolko control.
Clauses 8 (Fees and Payment for Purchased Services), 10 (Proprietary Rights), 13 (Confidentiality), 14 (Disclaimer), 16 (Mutual Indemnification), 15 (Limitation of Liability), 17.4 (Refund or Payment upon Termination), 17.5 (Return of Your Data) and 18 & 19 (Notices, Governing Law and Jurisdiction) shall survive any termination or expiration of this Agreement which cannot be amicably settled in a manner as envisaged hereinabove shall be settled by arbitration in Lucknow, India.
The Terms mentioned hereunder will be governed by and construed in accordance with the laws of India. The courts in India shall have sole and exclusive jurisdiction in respect of all matters arising herein.
Any dispute, controversy or claims arising out of or relating to this Agreement or the breach, termination or invalidity thereof, shall be referred to Arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996 or any modifications thereof. The place of arbitration shall be Bangluru/ Lucknow and the proceedings shall be conducted in the English language. The award of the ”ARBITRATOR “ shall be final and conclusive and binding upon the Parties. The expenses including Arbitrator’s fee shall be borne by both the parties equally.
NO THIRD PARTY RIGHTS
Neither this Agreement nor any provision hereof is intended to confer upon any person or third party any rights or remedies hereunder, save and except the Parties to this Agreement.
The invalidity or unenforceability of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement.
NOTICES AND NOTIFICATIONS
Any notice or notification required to be given under the provisions of this Agreement must be in writing. Any notice required to be given is to be treated as properly given if the said notice is served by registered post or courier of repute at the address mentioned hereinabove or sent by electronic mail to First party at the following address: Evolko Systems Private Limited, Ground Floor, E-1 Block, Beech Building, Manyata Embassy Business Park, Outer Ring Road, Bangalore - 560 045, India Email: firstname.lastname@example.org
In no event Evolko shall be considered in default in performance of its obligations under the terms of this Agreement, if such performance is prevented or delayed for any causes beyond its reasonable control including but not limited to power failure, network failure, war, hostilities, revolution, riots, civil commotion, strikes, lockouts, epidemic, fire, explosion, flood, earthquake, act of God or any act of Government or any other cause beyond the control of Evolko which could not have been foreseen or avoided.
The waiver of any breach or default of the terms of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
The second party shall not assign any of its rights or obligations hereunder. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.