Last update: September 17, 2022
- The use and access of the Medify Application and Backend Web Panel, as well as the responsibilities of the Parties, are detailed under Annexure – I, Annexure – II, and Annexure – III to this Subscription Agreement.
This Subscription Agreement shall be in force for a period of Three (3) Years, from the “Date of Effective Signing” of this Subscription Agreement, unless terminated earlier in accordance with the provisions of this Subscription Agreement.
The “Date of Effective Signing” must be documented as the Date on which Medify shares the Countersigned Subscription Agreement with The Retail Pharmacy, sent via electronic mail with machine generated confirmation of transmission or delivered by recognized courier service and shall be deemed effective upon receipt of the Countersigned Subscription Agreement.
III. REPRESENTATIONS AND CONVENTIONS OF THE PARTIES
Both the Parties hereby represent and undertake as follows:
- That it has full corporate right, power, and authority to enter into this Subscription Agreement and to perform the acts required of it hereunder.
- That the persons signing this Subscription Agreement on behalf of either Party respectively represent and covenant that they have the authority to sign and execute this Subscription Agreement on behalf of the Parties for whom they are signing.
- That, when executed and delivered, this Subscription Agreement will be binding on each Party and will be enforceable against it in accordance with its terms.
Notwithstanding anything stated herein above, either party can terminate this Subscription Agreement at any time without any cause by serving three (3) months prior written notice to the Other Parties.
Each party hereby indemnifies and agrees to keep indemnified and hold harmless the other, from and against all claims and all direct losses, liabilities, obligations, damages, expenses, and costs (including attorneys’ and professionals’ fees and other legal expenses) brought against or suffered by the other or any of its respective officers, directors, employees or agents, resulting from, arising out of or relating to:
- Any breach or non-performance by the indemnifying party of any of its representations, warranties, covenants, and/or assurances contained herein.
- Failure by the indemnifying party to perform any of its obligations contained herein.
- A breach of any Third-Party Intellectual Property Rights.
The responsibilities of the Parties with respect to Confidentiality are detailed under Annexure – II to this Subscription Agreement.
Any notice or other communication required or permitted to be given under this Subscription Agreement shall be given as defined in the Countersigned Subscription Agreement.
VIII. GOVERNING LAW
This Subscription Agreement shall be governed by and construed in accordance with the laws of India. In addition, each party irrevocably submits to the jurisdiction of the courts of Mumbai alone.
IX. SEPARABILITY CLAUSE
In the event that one or more provisions contained herein shall be held invalid, illegal or unenforceable in any respect and for any reason, the remaining provisions shall remain valid, legal, and enforceable.
X. INTELLECTUAL PROPERTY RIGHTS
This Subscription Agreement shall not operate as an assignment to either Party of any of the other Party’s copyright, trademarks, brand names/logos, etc., registered or unregistered, or has an interest of any nature whatsoever. All such trademarks, copyrights, etc. shall at all times remain the exclusive property of the Party which owns the same.
XI. FORCE MAJURE
Notwithstanding anything to the contrary herein contained, the Parties shall not be liable or responsible for failure to perform or delay in performance of any of its obligations under this Subscription Agreement if such failure or delay is due to or attributable to any Act of God, war, hostilities, riots, civil commotion, or any other cause or circumstance of whatsoever nature beyond the reasonable control of either Party. Such Force Majeure situation shall be notified to the other Party within 15 (fifteen) days from the occurrence of the same. If such a situation continues for a period of 3 (three) months, the other party shall be entitled to terminate the Subscription Agreement on the expiry of the said period after duly intimating the same to the other party.
XII. RELATIONSHIP BETWEEN PARTIES
The relationship between the Parties to this Subscription Agreement shall be on a principal-to –principal basis and nothing in this Subscription Agreement shall be construed so as to imply a relationship of agency, employment, partnership, joint venture, or technical collaboration between both the Parties, except as outlined in Annexure III.
The Parties shall at all-time act hold themselves out as independent entities beyond the purview of the Subscription Agreement and neither of them is granted any right or authority to assume or create, in any manner whatsoever, any obligation or responsibility for or on behalf of either of them or otherwise to bind or to use either name other than as agreed in writing.
No Waiver: No failure or delay by either party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof or preclude the exercise of any other or further right, power, or privilege hereunder.
Assignment: Except to the extent permitted under the Subscription Agreement, the right and obligations under this Subscription Agreement may not be assigned by any Party to any person or entity, without obtaining prior written consent from the other party. Any attempted assignment in contravention of this provision shall be void.
Warranty: Medify warrants to The Retail Pharmacy that it possesses all the necessary licenses, permissions, approvals, and registrations necessary under this Subscription Agreement and will continue to hold the same during the term of this Subscription Agreement.
Entire Agreement: No oral Agreement exists between the Parties. This Subscription Agreement, together with all annexures, schedules, and attachments hereto, represents the entire Agreement and understanding between the Parties with respect to the subject matter of this Subscription Agreement and supersedes any prior Agreement or understanding, written or oral, that the parties may have had.
Amendments: No amendment or change hereof or addition hereto shall be effective or binding on either of the parties hereto unless set forth in writing and executed by the respective and duly authorized representatives of each of the Parties hereto.
Counterparts: This Subscription Agreement may be executed in two counterparts, and by each Party on the same or different counterparts, but all of such counterparts shall together constitute one and the same instrument.
Subject: Medify’s Mandatory Conditions of Use.
As is mandated by the Information Technology (Intermediary Guidelines) Rules of 2011, Medify wishes to inform The Retail Pharmacy that The Retail Pharmacy is to ensure that the Medify Application and Backend Web Panel is not misused to host, display, upload, modify, publish, transmit, update or share any information that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatsoever.
Medify will not be liable for any claim in this regard, raised by any person, whether a user of the Medify Application and Backend Web Panel or otherwise. All such claims must be addressed and settled between The Retail Pharmacy and the respective person. Medify, at its sole discretion, may suspend or terminate permanently, The Retail Pharmacy’s access to the Medify platform, if The Retail Pharmacy is accused or found guilty of violating these conditions.
The Retail Pharmacy’s access or use of the Medify Application and Backend Web Panel and the contractual relations based thereon are strictly on principal to principal basis. The Retail Pharmacy is neither a partner nor an agent of Medify. Any decisions of supply or delivery of any medicines in any manner shall be at The Retail Pharmacy’s sole discretion. Medify will in no manner recommend any such medicines nor prescribe any treatment nor induce any supply, delivery or dispensation of any such medicines by The Retail Pharmacy. Consequently, any acceptance of any responsibility for any such supply, delivery or dispensation or that acknowledgment of any liability whatsoever pursuant thereof or otherwise shall be solely at The Retail Pharmacy’s own risk and Medify will in no manner be responsible nor liable for the same. The facility for the use of the Medify Application and Backend Web Panel to The Retail Pharmacy as a pharmacy / pharmacist is an access to technology as permitted by the Information Technology (Intermediary Guidelines) Rules of 2011 and does not in any manner constitute any act of sale, dispensation or delivery of any medicines or drugs.
Medify requests The Retail Pharmacy to be extremely mindful and use The Retail Pharmacy’s utmost discretion while using any feature of the Medify Application and Backend Web Panel, or reproducing any content, submitted to The Retail Pharmacy by any person, whether a user of the Medify Application and Backend Web Panel or otherwise, either through Medify or any other Application.
For purposes of this Annexure, the Party that owns and/or discloses confidential information for the Proposed Transaction as defined herein below is hereinafter referred to as the “Disclosing Party” and the Party that receives and or accesses such confidential information hereunder is hereinafter referred to as the “Receiving Party“
(Disclosing Party and Receiving Party shall together be referred to as the “Parties“)
NOW THE PARTIES AGREE AS FOLLOWS:
- “Confidential Information” means any and all confidential or proprietary information about the Disclosing Party or its business furnished by Disclosing Party to Receiving Party after the Effective Date, whether disclosed directly or indirectly, verbally which was classified as Confidential or in writing and includes, without limitation information relating to business systems, operations, strategic plans, clients or customer information, pricing, methodologies, processes, financial data, technical or software specifications and/or products and services of the Disclosing Party, as well as all notes, compilations, analyses or other documents prepared by Receiving Party which contain or are based upon the information provided by Disclosing Party pursuant hereto. The following will not be considered Confidential Information:
a. information that was already known to the Receiving Party without the obligation of confidentiality prior to the disclosure of it to the Receiving Party by the Disclosing Party;
b. information that is disclosed to the ReceivingPartywithout the obligation of confidentiality by a third party who has the right to make such disclosure;
c. information that is in the public domain or hereafter enters the public domain through no fault of the Receiving Party;
d. information that is independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party; and
e. information that is disclosed with the prior written approval of the Disclosing
- Standard of Care. The Receiving Party shall (a) keep the Disclosing Party’s Confidential Information in strict confidence; (b) protect it with the same degree of care as the Receiving Party treats its own confidential information which shall in no event be less than a standard of reasonable care; (c) not, without the prior written consent of the Disclosing Party, disclose or permit it to be disclosed to anyone other than the Receiving Party’s affiliates and its and their respective directors, officers, employees, agents or consultants who have a legitimate need to know the Confidential Information for the Receiving Party to negotiate, participate in, or procurement of product or services with respect to the Business Discussions (“Representatives”); (d) not use and not permit its Representatives to use the Disclosing Party’s Confidential Information for any reason other than in connection with the Business Discussions; (e) treat as confidential and shall not use, disclose or otherwise make available any trade secret for as long as such information shall remain a trade secret under applicable law; and (f) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the Disclosing Party’s Confidential Information and which are provided to the Receiving Party
- Personal / Medical Information and Privacy: The Receiving Party is aware that disclosure of such Personal / Medical Confidential Information is likely to cause grave personal, financial, and other damages to Disclosing Party and to individuals to whom such information belongs, and anything to the contrary herein notwithstanding, such personal, medical and/or health-related Confidential Information must be kept in strict confidence, shall not be copied and shall not be disclosed at any time to any person without prior written consent by the Disclosing Party. The provisions of this Section shall remain in force forever post the term of this Subscription Agreement and following its termination for any reason whatsoever.
- Obligations of Non-Disclosure. Prior to any use or disclosure of the Disclosing Party’s Confidential Information by the Receiving Party to any of its Representatives, the Receiving Party shall ensure that all Representatives are aware of and agree to be bound by all of the confidentiality obligations set forth in this Subscription Agreement. The Receiving Party shall be responsible for any breach of the Subscription Agreement by any of its Representatives.
- Notice of Disclosures. In the event the Receiving Party is required by any court or legislative or administrative body (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigation, demand, or similar process) to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall provide the Disclosing Party with prompt notice of such requirement in order to afford the Disclosing Party an opportunity to seek an appropriate protective However, if the Disclosing Party is unable to obtain or does not seek such protective order and the Receiving Party is, in the opinion of its counsel, compelled to disclose such Confidential Information under pain of liability for contempt or other censure or penalty, disclosure of such information may be made without liability. The Receiving Party shall promptly notify the Disclosing Party upon the discovery of any unauthorized use or disclosure of the Confidential Information or any other breach of this Subscription Agreement and cooperate with the Disclosing Party to help the Disclosing Party regain possession of the Confidential Information and prevent further unauthorized use or disclosure.
- Return of Information. Receiving Party shall discontinue use of all of Disclosing Party’s Confidential Information upon expiration of this Subscription Agreement. Upon written request by the Disclosing Party, the Receiving Party shall return, or, at Disclosing Party’s election, destroy, any tangible copies of Disclosing Party’s Confidential Information in Receiving Party’s possession, and purge or delete from its systems and electronic records all other copies of, Confidential Information which were disclosed or provided to Receiving Party, including all copies, partial or complete, of any summaries, compilations, or analyses thereof, in whatever form maintained or derived, excluding any archival copy retained systemically as a function of the Receiving Party’s regular disaster recovery process. Upon request, Receiving Party shall provide written certification of its compliance with the foregoing obligations
Responsibilities of Parties
Responsibilities of The Retail Pharmacy:
- The Retail Pharmacy must be agreeable to provide a flat applicable discount on all medicines above gross order value of Rs. 300 (including GST and all Applicable Taxes), and applicable discount on general products to the customers and patients who Order medicines and / or General Products from any of The Retail Pharmacy’ Retail Pharmacies, through the Medify Application and Backend Web Panel. If the aforementioned discount is not available on any specific product, The Retail Pharmacy would inform Medify of the same beforehand, and in turn mention it in the “Delivery Note” and the Invoice uploaded on the Medify Application and Backend Web Panel.
- The Retail Pharmacy must ensure that the home-delivery of all orders with a minimum gross order value of Rs. 300, is done at no additional cost to the Patients. If the minimum gross order value is below Rs. 300 or the delivery distance is exceeding the declared Radius of Delivery from The Retail Pharmacy to the Patient’s Inputted Location, The Retail Pharmacy may opt to deliver free of cost / at applicable delivery cost, at their discretion, subject to prior confirmation by the patient to such delivery charges.
- The Retail Pharmacy is responsible to deliver all the general products and medicines to the Patients, while complying with the respective delivery protocols eg. cold storage, photosensitive storage etc.
- The order must be accepted on the App with the accurate amount (after applicable discount), the delivery date & time and a copy of the bill along with it.
- Response to the orders, whether acceptance or rejection, must be done on priority, within 2 – 3 hours of the order being placed, and the order must be delivered within 1 business day (on the same day if the order is placed before 4:00pm, and next day if the order is placed post 4:00pm), in case of availability of medicines & 2 -3 business days if the medicine is not available and needs to be procured. Such reasons for delay should be promptly conveyed to the patient, and the order must be further executed on the basis of such discussion with the patient.
- If there is any shortfall or unavailability of any medicine, this must be mentioned in the delivery note or directly communicated to the Patients, if required.
- Rejections must occur only for valid reasons such as gross order value under Rs. 300 (only for home-deliveries), unavailability of stock etc. and such reasons must be mentioned on app or communicated to the Patients directly, if required. If the minimum gross order value is below Rs. 300 or the delivery distance is exceeding the declared Radius of Delivery from The Retail Pharmacy to the Patient’s Inputted Location, The Retail Pharmacy may opt to deliver free of cost / at applicable delivery cost, at their discretion, subject to prior confirmation by the patient to such delivery charges.
- Rejections must only occur for valid reasons, as mentioned above, and not due to lack of logistics, overload of orders etc.
- The Retail Pharmacy must take efforts to procure any such items which are mentioned in the order but not in stock, within the pre-determined timeframe of order fulfillment as defined in these Terms.
- If any of the items delivered are incorrect as per the order, The Retail Pharmacy must exchange it for the correct items within 48 hours of the delivery, at no added cost, or provide a credit note of the equivalent amount to the Patient.
- Items requested by the Patients can be exchanged, at no added cost, for a period of 30 days from the respective delivery, and if such an exchange is not possible, a credit note of the equivalent amount should be provided to the Patient
- Any changes in the order delivery must be duly updated to the Patients or on the App.
- The Retail Pharmacy is responsible to replace any defected products or products damaged during delivery, and such items must be promptly exchanged at no additional cost to the Patient.
- The Retail Pharmacy must provide permission to Medify for the display of creative content of the App at the respective Retail Pharmacy Locations.
- The complaints or concerns of the customers must be adequately dealt with, and utmost efforts to avoid negative feedback must be taken.
- The Retail Pharmacy is not responsible to exchange any products under the following circumstances:
a. If any damaged product has been opened and is partially or wholly used
b. If medicine strip(s) / bottle(s) are opened and partially or wholly used
c. If any product packaging, packaging box or packaging seal has been tampered with
d. If original bill copy is not provided for initiating the exchange
e. Products related to:
i. Temperature controlled medicines: Vials, Injections, Pen-fills, Vaccines or other products or speciality medicines cold storage.
ii. Baby Care: Breast Pumps, Diapers, Ear Syringes, Wipe Warmers, Bottle Nipples
iii. Food and Nutrition: Health supplements and drink
iv. Sexual Wellness: Condoms, Fertility Kit, Lubricants, Pregnancy Kit
v. Personal Care: Oral Care (Toothbrushes, toothpastes, mouthwashes etc); Feminine Hygiene (Sanitary Pads, Panty Liners, Menstrual Cups etc.); Shaving and Hair Removal (Men’s Shaving – Razors, Blades, Shaving Foams, Brushes etc.; Men’s Beard Care – Beard Oil, Beard Serum etc.; Women’s Hair Removal – Wax Strips, Creams, Razors etc.
v. Family Nutrition: Infant Baby Food, Toddlers’ and Kids’ Health Drink
vi. Health Care Product: Ayurveda Products, Pain Relief Products, Herbal Supplements, Medical Supplies, Adult Diapers, COVID masks (N95, surgical masks and others if unpacked)
vii. Others: Any wearable (COPD vest, bandages, bandage, knee caps) and any item (solid, gel, aerosol)
which may have been partially used or wholly used.
- If any item cannot be exchanged due to cold storage/photosensitive storage protocols etc., this must be mentioned in the bill or delivery note.
- The Retail Pharmacy consents and agrees that the Medify Application and Backend Web Panel, Order Processing Guide, Escalation Matrix and any other documentation shared pertaining to the usage of the Medify Application and Backend Web Panel, are solely the intellectual property of Medify, and cannot be used or reproduced in any manner, except as required for the usage of the Medify Application and Backend Web Panel. This point shall withstand the termination of this Agreement.
- The Retail Pharmacy consents to the usage of their Name and Logo in the online, offline and other marketing material of Medify.
- The Retail Pharmacy must provide a single point of contact with Medify through an Authorised Representative.
- The Retail Pharmacy must share the Retail Pharmacy Store’s contact details, addresses, Payment Information, GST Certificate, Pharmacy Licenses and all such KYC Details, as requested by Medify in the duration of the Onboarding Phase, and subsequently as and when required.
- The Retail Pharmacy must share their Inventory Master List with Medify once every month, until the Live Linking of Inventory to every individual Retail Pharmacy has been integrated by Medify.
- The Retail Pharmacy must pay for the Invoice raised on a monthly basis, within 10 Days of the Date of the Invoice.
- For late payments towards the Invoice raised, Medify reserves the right to impose a monthly compounded interest fee of One Percent (1.00%) on the outstanding or overdue amounts.
- The Retail Pharmacy may deduct applicable withholding tax / TDS on payments made to Medify subject to valid certificates from the Tax Authorities.
Responsibilities of Medify:
- Provide technical assistance to The Retail Pharmacy for the Registration/Verification or any of the consecutive processes for fulfilling orders.
- Design and provide creatives for display at The Retail Pharmacy Locations, and for Online / Offline Marketing.
- Run an ad-campaign to generate orders for The Retail Pharmacy, once the complete on boarding, setup and kick-off processes and consecutive technological integrations have been completed.
- Provide one-time incentives for the users to register and order through the Medify App.
- Provide a single point of contact with The Retail Pharmacy through an assigned Account Manager.
- To settle Reward Points earned by The Retail Pharmacy through the Medify App on a weekly basis (calculation will be carried out for a period of Monday – Sunday), within 5 Working Days.