TERMS OF SERVICE
This is www.cloudmd.ph and these Terms of Service (“Terms”) contain all the terms and conditions that govern the use of our hosting platform through the CloudMD Application (or “App” for brevity), as well as our services together with all content, products and/or services which may be availed of through the platform, collectively referred to as “CloudMD Services”, and defined herein below.
These Terms, once accepted by you, the “Client/User” (as defined herein below), form a binding contract, legal and enforceable under laws of the Philippines, between yourself and the Service Provider. Client/User representatives acknowledging and agreeing to these Terms not in their individual capacity but on behalf of juridical entities, including but not limited to “general professional partnerships” as defined by Philippine law (commonly referred to as “group practice”), private or public corporations, or other similar entities, make a representation as to legal capacity and authority to bind the entity to these Terms.
ATTENTION: KINDLY READ THESE TERMS VERY CAREFULLY. Your acts of navigating, browsing, accessing, registering for or otherwise using CloudMD Services, the App or the platform will be treated as your acknowledgment of these Terms and that you have read, understood, and further agree to be bound, in your own capacity and/or your capacity as a representative of a juridical entity, to these Terms. Should you not be agreeable to these Terms, do not navigate, browse, access, register for or use CloudMD Services or the App altogether.
CloudMD Services may be availed of free of charge under the “Trial Service” program (as defined herein below). These Terms contain special provisions which apply to the period covering the use of Trial Service.
The Service Provider reserves its right to exercise its discretion, subject to generally accepted principles of due process and fair dealing, to suspend or terminate access to or use of CloudMD Services or App to any person who shall violate these Terms.
I. Definition of Terms as Used in these Terms of Service
Account - The relationship between Client and Service Provider allowing the former to be able to navigate, access and use, and up to a certain extent, modify, subject to payment of subscription fees, CloudMD Services
Administrative Remedies/Measures - Actions which may be taken by the Provider to protect its rights and interests as well as those of third persons, without need of legal processes or governmental intervention, including but not limited to: investigation or audit, suspension, and/or deletion of CloudMD Account or Client/User Data.
Client/User/Doctor - A natural or juridical person who has agreed to and accepted these Terms set forth by the Provider;
Client/User Data - Any digital information, data, file or transaction recorded or inserted into the CloudMD System by the Client, including but not limited to doctors’ notes, patients’ notes; This may also cover documents of any kind (images, spreadsheets, notes, etc.) recorded or inserted into the CloudMD System by the Client, associated with a person other than the Client/User himself or his representative(s) as well as the Provider;
CloudMD - Proprietary electronic medical records management software owned and made commercially available to the Philippine market by Xynapx Inc., the Provider herein;
CloudMD App/System - A program which is part of CloudMD Services that can be downloaded by a user or Client, allowing him access to his Account, and contains the computing solution for providing the Client with CloudMD Services and may interchangeably serve as collective terms which include applications, software, hardware, data bases, interfaces, media, documentation, updates, and other Materials provided under Services;
CloudMD Materials - The visual interfaces, graphics, design, systems, methods, information, computer code, data as well as all other components which comprise CloudMD Services/App;
CloudMD Services - Includes the Website, Services, System, App, and all content, services and/or products available on or through the hosting platform;
CloudMD Website - The aggregation of all web-based documents including but not limited to image, text, hypertext, .html files, made available through www.cloudmd.ph or its subdomains, or domains with identical names owned by Provider.
CloudPx - Proprietary online doctor directory and e-consult telemedicine management platform accessible by Patients (as defined herein below), through www.econsult.cloudmd.com.ph, used in conjunction with CloudMD;
Content - Any data or information made available through CloudMD Services or App, including documents, pictures, presentations, audiovisual training materials, commentaries, and others;
Customized Terms - Any considerations, specifications or conditions which the parties have agreed to alter, modify, or otherwise deviate from these Terms;
E-consult Patient Consent Form - An electronic form to be completed by a Patient, the submission of which is a prerequisite for every e-consult appointment with CloudMD Doctor/s, composed of (1) provisions evincing such Patient’s conformity to be consulted and/or treated and (2) conditions under which such Patient agrees to receive the same;
Implementation Fee - Optional one-time fee imposed upon Clients/Users which covers the administrative costs of logistically adding a user to the system, training expenses, and/or other expenses necessary therefor;
Patient - A natural person who is a user of CloudPx App/Services/Website who avails of professional medical services of a Doctor (as defined herein above) who is CloudMD Client/User;
Personal Information - Refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual [Sec. 3(g), Data Privacy Act of 2012];
Personal Information - Refers to any information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual [Sec. 3(g), Data Privacy Act of 2012];
Privileged Information - Privileged information refers to any and all forms of data which under the Rules of Court (of the Philippines) and other pertinent laws constitute privileged communication. [Sec. 3(k) Data Privacy Act of 2012];
Professional Fee/s - Amount/s that may be charged by CloudMD Doctors to Patients (as defined herein above), whether through CloudPx’s third-party payment solutions provider (i.e., PayMaya) or otherwise, for Professional Services (as defined herein below) rendered, prior to or at the end of an appointment or session;
Professional Services - Services by CloudMD Doctors availed of by Patients (as defined herein above), which may be billed to Patients, when said services have been availed through the CloudPx App/Website, and may include without limitation, doctor’s appointments, medical advice/instructions, doctor’s orders (including but not limited to prescription of medicine, laboratory examinations and medical procedures), issuance of letters (including medical certificates or admission orders);
Provider - Xynapx, Inc., a corporation established through and existing under the laws of the Philippines, is the “Provider”, with primary business address at Unit 505, 5/F OITC 2 Building, Oakridge Business Park, Mandaue, Cebu, solely having proprietary rights over CloudMD;
Sensitive Personal Information - Refers to personal information:
1) About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations;
2) About an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person, the disposal of such proceedings, or the sentence of any court in such proceedings;
3) Issued by government agencies peculiar to an individual which includes, but not limited to, social security numbers, previous or current health records, licenses or its denials, suspension or revocation, and tax returns; and
4) Specifically established by an executive order or an act of Congress to be kept classified
[Sec. 3(l) Data Privacy Act of 2012];
Subscription Fees - Recurring charges payable by the Client to Provider for use of CloudMD App or Services, which covers data hosting and storage, the standard monthly rate thereof allows complete access for one (1) month;
System Updates - Additional guidelines or rules applicable to specific features, applications, products, or services which may be posted by the Provider from time to time on the hosting platform, or otherwise made available to Clients on the CloudMD App or Services;
Trial Service - Limited and temporary access to CloudMD Services and App, for the purpose of trying out the user experience as well as products and services, free of charge, and subject to these Terms, which may be upgraded to full service once the trial period expires;
User Activity - Any and all interactions or transactions documented or caused to be documented by the Client with the use of the CloudMD App or Services, including, but not limited to, messaging, patient records, billing, or inventory.
II. Parties to, Acceptance, Modification and Enforceability of these Terms
II.b. Authority and Legal Capacity as CloudMD Client/User/Doctor. Acceptance of these Terms is paramount in the use of CloudMD Services. To be able to effectively accept these Terms one must be at least eighteen (18) years of age and be licensed to practice medicine in the Philippines or, in case of foreign nationals, in their countries of origin. As part of CloudMD’s effort to know its customers better, all prospective Clients may, as a prerequisite for use, even during Trial Service, be required as part of CloudMD’s “Know-Your-Customer” campaign, to present proof of authority to practice medicine. In case of juridical persons as Clients (e.g., general professional partnerships or group practice), such entity must be duly organized and registered under the laws of the Philippines.
II.c. Relationship of Parties. Nothing in these Terms shall be construed as constituting employee-employer relations, agency or partnership between the Provider and Client. Throughout the lifetime of these Terms the Provider shall remain an independent contractor and data processor of the Client.
II.d. Acceptance of these Terms by Client/User and the Provider. The occurrence of the following constitutes as acceptance by both parties of these Terms: (1) for users accessing CloudMD Services which require the use of an Account - the Client has received confirmation or notification of the creation of the Account as well as pertinent credentials from the Provider, allowing him to log in to his CloudMD Account; and, (2) for users accessing CloudMD Services which do not require use of an Account – continued access to and use of said Services.
Once accepted, these Terms remain effective until otherwise expressly amended or terminated in accordance with these Terms.
II.e. Terms Modification. The Provider reserves the right, and subject to its sole discretion, to change, modify, alter, add or otherwise remove portions of these Terms at any time, which right when exercised by the Provider shall be reflected through the CloudMD Website or App. Users are strongly encouraged to check these Terms periodically for such notifications or announcements. The continued use of CloudMD Services or App subsequent to the announcement and implementation of such changes shall constitute the User’s or Client’s conformity to such changes. Amendment of these Terms will be given automatic effectivity upon (a) continued use of CloudMD Services or App, or (b) thirty (30) days from the posting of such amended Terms. Amendment of Terms will have no retroactive effect and any dispute that may arise between the Client and the Provider will be resolved and governed by the Terms in effect at the time the subject of the dispute had arisen.
II.f. Legal Considerations and Jurisdiction. These Terms shall be governed solely by the Laws of the Philippines. In the event of a dispute arising from the enforcement of these Terms, all parties acknowledge that, after efforts to reach amicable settlement shall have failed, legal remedies may be brought before the courts of competent jurisdiction in Cebu City, Philippines, to the exclusion of all others.
II.g. Assignability of License Granted under these Terms. Under no circumstances will the Client be allowed, either by contract or operation of law, to transfer, assign, lease or sell to third persons that license granted for the use granted by these Terms of CloudMD Account, CloudMD App/Website, CloudMD Materials or CloudMD Services, without Provider’s written consent to the contrary.
II.h. Non-waiver of Rights. Failure of Provider to exercise a remedy or to insist in one or more instances with regard to the performance of any of the covenants of these Terms shall not be construed as abandonment or cancellation or waiver of such covenant. No waiver by Provider shall be deemed to have been made unless expressed in writing and signed by its authorized representatives.
II.i. Legal Notices. Unless otherwise provided, any and all notices to the Provider shall be in writing and coursed through its permanent Business Address as provided above, during generally accepted business hours. It is understood that notices sent past business hours shall be deemed received at the start of the next business day. Pursuant to A.M. 01-7-01-SC, otherwise known as the “Rules on Electronic Evidence of 2001”, electronic mail or e-mails shall be considered written communication.
III. Responsibilities of the Provider
III.a. Providing and Making Available CloudMD Services to Clients. The Provider will endeavor at all times, as far as practicable, to make available to all CloudMD Services Clients/Users the following: (a) remote support and troubleshooting available during business hours, and does not cover hardware issues (with the exception of cases where hardware was procured by Client from the Provider), (b)optional on-site support which may be billable to the Client/User, (c) the CloudMD App, Materials, Services, Website, Content and Client Data, for 24 hours a day, 7 days a week, with the exception of the following cases, namely: (1) planned server downtime (in which case Provider will give advance notice through and pursuant to System Updates), and (2) service unavailability brought about by causes removed from the control of the Provider, including but not limited to the following: fortuitous events or acts of god or any other natural calamity, acts of government, terrorism, labor problems, civil unrest, default/delay/failure on the part of internet service provider, cyber-terrorism (e.g. deliberate denial of service attack or hacking), or suspension/removal of Client’s account when the Provider determines that there has been an uncorrected act of misuse of CloudMD Services attributable to the Client/User.
III.b. Client Data Protection and the Data Privacy Act of 2012. The Provider will maintain administrative, physical and technical fail-safes for the protection of the security, confidentiality and integrity of Client Data in full accordance with the Data Privacy Act of 2012. Such safeguards will contain features to limit viewing, accessing, using, modifying or disclosing of Client Data by the Provider personnel except (a) to ensure continued availability of CloudMD Services, (b) to provide technical support and troubleshooting, (c) when Provider is directed to act otherwise by legal process, court order, or any governmental act, or (d) express consent in writing by the Client or user concerned.
IV. Use of CloudMD Services
IV.a. Making a CloudMD Account. Most of the features of CloudMD Services, and access to the CloudMD App itself shall only be granted to CloudMD Account holders. Parties who wish to create an account shall: (a) complete the sign-up form located within the CloudMD Website (or sign-up sheet in cases of off-line registration); (b) comply with the conditions set about in CloudMD’s “Know-Your-Customer” campaign, including presenting proof of authority to practice medicine as well as credit card information, among others; and, (c) accept these Terms by (1) completing the sign-up sheet for off-line registration or (2) clicking on the “sign up” button and completing input of payment method with the third-party payment portal.
Circumstances for sign-up may vary when done pursuant to active marketing efforts by marketing officers of the Provider.
As a rule, each Client/User must have at least one account. These Terms do not place a limit on the number of Accounts a Client may own, provided, however, that each CloudMD account will be charged pertinent Subscription Fees separately.
IV.b. Logging into a CloudMD Account. Each Client/User/Doctor shall nominate to the Provider their log-in credentials in the form of a username and password. Clients are responsible for keeping confidential all log-in credentials associated with his CloudMD Account.
CloudMD Services features the formal designation of sub-users and the creation of sub-user accounts, each under a specific CloudMD Account. Access to CloudMD Accounts by persons other than the registered holder thereof, while not expressly prohibited, is strongly discouraged under these Terms.
In view of the foregoing, should the CloudMD Account holder opt for other persons to have access to, and possibly add, remove, change or otherwise alter any Client Data within his Account (including patient records, appointments, Professional Fees, inventory, or any Client/User Data, the Client understands that he solely bears the risks and consequences for granting, to such other persons or users, the right to access, add, remove, change or otherwise alter any Client Data within said Account.
A Client must promptly notify the Provider of any loss or unauthorized use of any log-in credentials.
IV.c. Account Termination. Clients may terminate conformity with these Terms and the use of the Services at any time as provided under the clause on Article XV, “Termination of Terms” where the Provider shall permanently delete the Account and all the Client Data appurtenant thereto, as soon as practicable, after effectivity of such termination.
IV.d. Trial Service. A new Client may be entitled to the Trial Service where he may have access to CloudMD Services including the App, and the use of a CloudMD Account, free of charge for a limited period. Upon the expiration of the Trial Service period, the pertinent Account will automatically be disabled. To prevent disabling of Account, or to re-activate one already disabled, the Client must manifest his conformity (by completing the sign-up sheet for off-line registrants or nominating a payment method through the Provider’s third-party payment portal) to being charged Subscription Fees as provided hereunder. Failure to initiate payment of Subscription Fees, within fifteen (15) days from the expiration of the Trial Service Period will result in the permanent deletion of the suspended Account as well as all the Client Data contained therein.
IV.e. Subscription Fees. The access of a CloudMD Account and use of CloudMD Services is subject to a fixed recurring fee, which may be billed and/or charged monthly or annually. By default, Clients/Users are charged monthly on the same day of every succeeding month.
In cases of on-line registration, Subscription Fees are charged once sign-up is completed, customer identity is confirmed through the Know-Your-Customer feature and payment method is confirmed by the third-party payment portal.
For off-line registration, Subscription Fees set in upon the “go-live” date.
Such fees covering the month of signing up will be equal to the standard fixed monthly rate. It is understood by the Client that Subscription Fees covering succeeding months will be automatically debited against his nominated credit card within the first five (5) days of every succeeding billing period.
In addition to these Terms the Provider may offer special discounts, special terms and/or modes of payment, or incentive programs for Clients and/or users.
V. Payment Mechanics
V.a. Credit Card Authorization and Information. The third-party payments portal requires the submission of credit card information (1) by on-line registrants upon Trial Service period expiry and/or when opting to upgrade to full service or (2) upon sign-up by off-line registrants. By these Terms you agree to supply the third-party payments solutions provider with your valid and updated credit card information upon sign-up and at any time the it may request for the same when the credit card information earlier provider ceases to be valid.
V.b. Invoicing. For Clients who sign up for CloudMD Services through means other than the CloudMD Website (i.e., off-line, through active marketing efforts of the Provider), and have not provided/nominated a credit card to answer for Subscription Fees, such Clients will be issued electronic invoices, reflecting the amount payable for the billing cycle covering the month wherein such invoice was sent, which amount shall be payable on or before the due date stated on such invoice.
V.c. Non-payment related suspension. The Provider reserves the right to suspend/deny access to an Account by reason of non-payment of Subscription Fees as provided herein. The Provider may impose re-activation fees in conjunction with a demand to pay all pending bills for continued access to Accounts suspended in relation to this item.
VI. Client/User Data
VI.a. Uploading Client Data to CloudMD App/Website. Clients who upload Client/User Data, especially Personal Information, Sensitive Personal Information and Privileged Information, to the CloudMD Website or App, such Client/User Data or Personal Information, Sensitive Personal Information and Privileged Information, and any processing of such must be in compliance with these Terms and the Data Privacy Act of 2012. It is understood that all rights, ownership and interest to the said Data belong and remain with the Client. It is the Client’s responsibility to ensure and warrant that: (1) the Client does not create, transmit, display or otherwise make available any Client/User Data that violates these Terms, the rights of the Provider, other Clients, persons or organizations/entities or is harmful (for having the nature of worms, viruses, malware as well as other malicious and/or destructive codes), offensive, threatening, abusive, defamatory, obscene, hateful, invasive of privacy of other persons or otherwise contrary to law, morals or good customs, and (2) the Client has all the necessary rights and authority to use, generate, alter, delete Personal Information, Sensitive Personal Information or Privileged Information within the CloudMD Website or App, as well as process the same through means of an Account.
VI.b. Accuracy of Data Not Guaranteed. The Provider does not guarantee the accuracy of Client/User Data with respect to any and all information contained therein, and strongly recommends that Clients defer any transmission, submission or posting prior to a conscious and advertent review of the Data to be uploaded, posted or otherwise made available through the CloudMD Website or App. By the same token, the Client and not the Provider, assumes total responsibility for all Client/User Data uploaded or posted, as well as any action taken by the Provider or other CloudMD Clients as a result of such Client/User Data.
VI.c. Unlawful/Violative Client/User Data. The Provider does not actively filter, monitor or otherwise prescreen any Client/User Data or processing thereof by the Client with a view to detecting any unlawful content or those that are violative of these Terms, nor does it have the obligation or responsibility to do so. However, at the instance of any third person, including the Philippine Government, the Provider may take the following actions on the content deemed unlawful/violative, subject solely to its discretion: (1) notify the Client concerned, (2) deny posting/uploading/publication of content so flagged, (3) compel Client to amend, change or delete the Data deemed unlawful or violative, (4) impose temporary cessation of access to or even permanent deletion of CloudMD Account or Client/User Data.
Subject to affirmative or corrective action, or justification offered by Client for flagged Client/User Data, the Provider may, at its sole discretion opt to reverse or set aside actions taken as discussed in the paragraph immediately preceding.
The Provider may, but without the obligation to do the same, exercise any of the above measures with prior notice to the Client or CloudMD Account concerned.
VI.d. Compulsory Disclosure of Client/User Data. The Provider may disclose, notwithstanding the confidential nature of Client/User Data, when so compelled by court order, subpoena or other legal processes. For such cases, the Provider shall, to the best of its ability and as far as practicable, use any and all means to notify Client whose Client/User Data is affected, of the disclosure. The Provider further commits, where assistance is required by the Client, to render the same (through means including, but not limited to, compilation and reproduction of data, introduction of the same in, and testifying thereon before any government agency) all at cost and for the account of the Client.
VII. CloudMD Services
VII.a. Use of CloudMD Service. By and under these Terms and the payment of the applicable Subscription Fees, the Provider grants Clients an exclusive, non-transferable, non-sublicensable license to use Cloud MD Services to do the following, viz: (1) collect, store organize Client/User Data, (2) modify, alter, change, remove or delete Client/User Data, (3) customize, subject to Customized Terms as defined above, certain features of Cloud MD Services or App; and, (4) receive technical assistance from the Provider as regards use of CloudMD Services/Website/App.
VII.b. Use of CloudMD in Conjunction with CloudPx. Professional Services (as defined herein above) of CloudMD Doctors may be availed of by Patients using CloudPx e-consult telemedicine via www.econsult.cloudmd.com.ph. CloudMD Doctors may charge Patients relevant Professional Fees for services rendered, either through CloudPx’s third-party payments portal PayMaya or other means at the recommendation of the CloudMD Doctor. However, the imposable rates, payment due date and payment method will be subject solely to the discretion of the consulting Doctor and without the control or involvement on the part of Xynapx, Inc.
CloudMD Doctors are strongly enjoined to render Professional Services only to CloudPx Patients who have read and understood the provisions and conditions set forth in the E-consult Patient Consent Form, and have manifested their conformity thereto upon each request for e-consultation made.
VII.c. Technical Support. The Provider undertakes to provide reasonable technical support as provided for in Item IV.a in these Terms. To reiterate, technical support is limited to remote troubleshooting. General inquiries may be fielded to the Provider during business days, through the following means, to wit: (1) SMS/text messaging, (2)notification application within CloudMD Website or App and (3) e-mail: [email protected]
VII.d. Service Feature Modifications. The Provider reserves the right to modify, change, alter, replace or outmode CloudMD Services in its entirety or any part thereof including but not limited to: (1) re-branding at its sole discretion, (2) discontinuing development of any part of CloudMD Services either temporarily or permanently, with proper notice to all Clients in all cases; or, (3) take positive and affirmative action against any acts constituting: (a) a violation of these Terms, or Provider’s intellectual property rights, (b) introduction of any malicious code/programs to CloudMD Services as a whole, (c) the perpetration of any illegal activity, or (d) leasing, sub-leasing or sub-licensing (with the exception of CloudMD Account holders who are general professional partnerships as defined by law) a CloudMD Account.
Whenever applicable, any proposed changes as to features of CloudMD Services, especially those concerning Subscription Fees, will be applied thirty (30) days after posting or publication of notice of proposed modification.
Any Client/User not agreeable to the proposed changes as posted must manifest non-conformity before the effectivity of the proposed modifications, wherein these Terms will be deemed terminated as of the effective date of modifications proposed. Continued use by the Client of CloudMD Services/App after the lapse of the effectivity date of changes proposed will be construed as Client’s consent to the same. The Provider shall not be liable to Clients and/or third persons for the modification or discontinuation of CloudMD Services, or any part thereof. IT IS UNDERSTOOD THAT PERMANENT DISCONTINUATION OF CLOUDMD SERVICES OR ANY PART THEREOF SHALL ONLY GIVE RISE TO THE OBLIGATION, ON THE PART OF THE PROVIDER, TO TRANSMIT DIGITAL COPIES OF CLIENT/USER DATA TO THE CLIENT/USER CONCERNED, AT NO ADDITIONAL COST TO THE LATTER.
VIII. Right to Audit
VIII.a Availability of Audit. The Provider shall, at all times during the lifetime of these Terms, maintain such permits, licenses, documents, and/or records that would demonstrate its compliance with its obligations under these Terms and with all laws relevant thereto, whether specifically referred to herein or otherwise. Upon the written request of the Client/User, Provider shall, at the expense of the Client/User, make such relevant records available to the Client/User for inspection and audit.
VIII.b Limitation on Audit. Audits shall be limited to audit logs which may include the following, to the exclusion of others: introduction, uploading and manipulation of any data, user-activity in the form of modules accessed, and the date and time stamp of every interaction.
VIII.c. Cost of Audit. Costs of any audits conducted by the Client/User pursuant to this Article shall be for the account of the Client/User, unless the Client/User is found to have overpaid fees, or the Provider proves unable to produce certain documents specifically required under these Terms or under any applicable law.
IX. Restrictions in Use of CloudMD Accounts/Services
IX.a. Prohibited Activities. The Client is strictly enjoined to limit its use of CloudMD Services in full accordance with these Terms as well as the laws of the Philippines, placing emphasis on the Data Privacy Act of 2012. The Client is expressly prohibited from: (1) using CloudMD Services, Website or App to commit a crime, violate any law or commit acts contrary to morals or customs, (2) copying, duplicating, hacking, cracking, creating derivative works, reverse engineering or decompiling CloudMD Services and its features, or attempt to extract the source code thereof, unless (a) expressly allowed by law, and (b) up to the extent the Provider is prohibited from excluding the Client from rights arising by reason of (a); and, (c) using CloudMD Services, the App and its features, as well as those of the Website, unless having agreed to these Terms.
IX.b. Features Requiring Consent of Provider. The Client is prohibited, without the Provider’s prior consent in writing, embodied in any physical or electronic document (as defined under the A.M. 01-7-01-SC, otherwise known as the “Rules on Electronic Evidence of 2001”), from doing any of the following acts:
1) Selling, leasing, licensing, sublicensing, distributing, disclosing, divulging, exploiting or otherwise granting Access to or making CloudMD Services and its features, in whole or in part, to third persons unless such third persons are also CloudMD Clients themselves; and,
2) Using CloudMD Services beyond the scope of and contrary to purpose set about by these Terms.
XI. Intellectual Property Rights
XI.a. Over CloudMD Services. The CloudMD Website, CloudMD App/System, CloudMD tradename and trademarks, and any components thereof are solely and exclusively owned by the Provider. CloudMD Materials are protected by copyright, patent, trade secret and trademark laws as provided for by laws of the Republic of the Philippines as well as the Vienna Convention on the Law of Treaties, to which the Philippines is a signatory.
The Provider retains all title, rights and interests in CloudMD Services, CloudMD Website, CloudMD App/System and CloudMD Materials, and any parts or elements thereof.
Your use of the CloudMD Services, CloudMD Website, CloudMD App/System and CloudMD Materials, and any components thereof grants you neither ownership nor intellectual property rights therein.
Any commercial or promotional distribution, publishing or exploitation of CloudMD Materials, without prior written approval from the Provider, is strictly prohibited.
The Provider reserves all rights to CloudMD Services, CloudMD Website, CloudMD App/System and CloudMD Materials, and CloudMD tradename and trademarks not expressly granted in these Terms.
XI.b. Over Content. Upon agreement to these Terms and payment of Subscription Fees, the Provider grants the User/Client a non-transferable, non-exclusive and non-sublicensable permit to download copies of any Content contemplated within the CLoudMD Services as a whole, provided that such User/Client retains thereon the pertinent notices regarding copyright and intellectual property ownership by the Provider. It is understood that you do not acquire ownership over any materials downloaded from or otherwise made available through CloudMD Services.
XI.c. Over Client/User Data. Every Client/User is responsible for its own Client/User Data, especially Personal Information, Sensitive Personal Information and Privileged Information as defined above and through the Data Privacy Act of 2012, as well as the attending consequences for their posting or processing through CloudMD Services. The Client/User acknowledges that : (1) he has all the qualifications set forth in the Chapter on “Authority and Legal Capacity as CloudMD Client/User”, (2) he owns all Client/User Data he posts, uploads or publishes through CloudMD Services, (3) the ownership and use of Client/User Data as well as the processing of the same by Provider will not constitute an infringement or violation of rights of any third persons, or violation of morals, customs or laws of the Philippines.
It is understood however that data provided by Clients/User constituting customer feedback, comprising data or information provided by Client/User to the Provider in relation to bugs observed in the use of or comments or recommendations to modify CloudMD Services as a whole, may be used by the Provider at its discretion and incorporate the same to the CloudMD App/Website or CloudMD Services, without any legal impediment whatsoever nor obligation to pay royalties in relation thereto.
XII. Disclaimer of Warranties
UNLESS OTHERWISE STATED EXPRESSLY BY THESE TERMES, AND TO THE FULLEST EXTENT ALLOWED BY LAW, THE PROVIDER MAKES, AND THE LICENSEE RECEIVES, NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR WARRANTIES OTHERWISE IMPLIED BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE) WITH RESPECT TO ANY CLOUDMD MATERIALS, THE CLOUDMD APP, THE CLOUDMD WEBSITE, OR THE CLOUDMD SERVICES. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE CLOUDMD MATERIALS, CLOUDMD APP, CLOUDMD WEBSITE, OR CLOUDMD SERVICES AND THEIR FUNCTIONS OR FUNCTIONALITY IN THE LICENSED ACCOUNT OR ANY COMMUNICATIONS WITH THE CLIENT/USER/LICENSEE ARE FOR INFORMATION PURPOSES ONLY, AND DO NOT CONSTITUTE A WARRANTY, REPRESENTATION, OR CONDITION. WITHOUT LIMITING THE FOREGOING, THE PROVIDER DOES NOT WARRANT: (A) THAT THE OPERATION OR OUTPUT OF THE LICENSED ACCOUNT AND ANY OF ITS FEATURES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, FREE OF VIRUSES OR HARMFUL CONTENT, ACCURATE, RELIABLE OR COMPLETE; (B) THAT ERRORS WILL BE CORRECTED BY THE PROVIDER OR ANY THIRD PERSON; OR, (C)THAT THE PROVIDER OR ANY THIRD PERSON WILL AT ALL TIME AND IN ALL CASES RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET CLIENT/USER/LICENSEE’S REQUIREMENTS OR EXPECTATIONS. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY BE IMPLIED BY PHILIPPINE LAW WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED NOTWITHSTANDING A CONTRACTUAL RESTRICTION TO THE CONTRARY.
XIII. No Fault Agreement
By these Terms the Client/User agree to fully indemnify, hold harmless and defend Xynapx, Inc. (the Provider) and its directors, officers, employees, agents, stockholders and affiliates from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs and expenses (including but not limited to reasonable attorney’s fees and costs), whether or not involving a third party claim, which arise out of or relate to any act or omission of the Client/User on account of violation of these Terms, infringement or violation of rights of any third person, or any breach of the foregoing warranties or representations, or violation of any laws of the Republic of the Philippines.
XIV. Provider’s Liabilities
XIV.a No Liability. The Client/User understands that no liability shall attach upon and shall so hold Provider free and harmless from any claims, damages, liabilities, losses, direct or consequential, demands, actions, suits, settlements, judgments, costs of suit and expenses (including attorney’s fees), whether or not involving a third party claim, relative to (i) non-payment by any CloudPx Patient of any and all Professional Fees owed the CloudMD Doctor for services rendered, (ii) any actual or perceived inconvenience(s) arising from interruption of service (i.e., preventing access to, suspension and/or deletion of Client/User’s CloudMD Account or Data), whether attributable to the Provider or at the instance of third parties including any governmental entity, in relation but without limitation to the following causes: (1) any interruption whether announced or otherwise, in relation to implementation of upgrades and/or updates of security systems or CloudMD Services/App/Website as a whole and/or any features thereof, (2) by reason of acts or omissions attributable to Client/User including but without being limited to: (a) violation of any Philippine law, (b) introduction into the CloudMD Services any Client/User Data that is harmful, offensive, threatening, abusive, defamatory, obscene, hateful, invasive of privacy of third persons or otherwise contrary to law, morals or good customs, (c) introduction of Client/User Data that is inaccurate which may or may not be prejudicial to a third person’s rights, (3) disclosure or deletion of Client/User Data or interruption or cessation of CloudMD Services in compliance with legal processes initiated by third persons including the Philippine Government, (4) administrative controls or legal remedies brought forth by Provider as regards Client/User’s violation of these Terms; and (5) service unavailability brought about by causes removed from the control of the Provider, including but not limited to the following: fortuitous events or acts of god or any other natural calamity, acts of government, terrorism, labor problems, civil unrest, default/delay/failure on the part of internet service provider, cyber-terrorism (e.g. deliberate denial of service attack or hacking).
XIV.b Limited Liability. The Provider undertakes monetary liability for acts or omissions, solely attributable to Xynapx, Inc.’s directors, officers, employees, agents, stockholders and affiliates amounting to a breach of these terms, when uncorrected despite the lapse of five (5) business days from written notice by Client/User affected, for the following instances, to the exclusion of others: (a) Client/User Data loss/corruption, (b) unwarranted Client/User Data disclosure, (c) unwarranted/unexplained interruption or unavailability of service; and (d) discontinuation of CloudMD Services partly or wholly where Provider fails to transmit digital copies of the Client/User Data to the Client/User concerned. IN NO CASE SHALL PROVIDER’S MONETARY LIABILITY EXCEED THE AMOUNT PAID BY CLIENT/USER TO PROVIDER BY WAY OF SUPSCRIPTION FEES FOR THE PERIOD OF SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF NOTICE OF BREACH BY CLIENT/USER. THE CLIENT/USER UNDERSTANDS THAT THE LIMITATION OF LIABILITY MENTIONED IN THIS SECTION SHALL GOVERN ACTIONS BROUGHT BY REASON OF BREACH OF CONTRACT OR OF TORT.
XIV.c Treatment of Related and Incidental Damages. TO THE EXTENT ALLOWED BY LAW, NO ACTION OR CLAIM FOR DAMAGES, WHETHER ARISING OUT OF CONTRACT OR TORT, INCLUDING BUT WITHOUT LIMITING TO LOSS OF INCOME OR FUTURE PROFITS, LOSS OF GOODWILL, OR COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, NOMINAL, LIQUIDATED OR PUNITIVE IN NATURE, ASIDE FROM THOSE EXPRESSED IN THE IMMEDIATELY PRECEDING SECTION SHALL BE BROUGHT AGAINST THE PROVIDER, NOTWITHSTANDING ANY PRIOR NOTICE OF THE SAME BY THE CLIENT/USER CONCERNED.
XV. Termination of Terms
XV.a. Elective Termination. These Terms, subject to proper notice as provided for in Article II.i. (Legal Notices) hereof, may be terminated by will of either party, in the following cases: (a) by Clients/Users who have registered on-line, at any time through clicking the “unsubscribe” button located within Account Management Settings, which operates merely to notify the Provider of the intention to terminate services, provided however that notice was given before the Account’s due date – unused days will not be refunded; (b) by Clients/Users who have registered off-line, at any time by notifying the Provider through any communication channels available under these Terms, or (c) by Provider when exercising its sole discretion and sound business judgment to discontinue, either partially or wholly, CloudMD Services.
Nothing in these Terms shall be construed as a limitation or a primary obligation on the part of the Provider to use administrative remedies, as defined. Legal remedies may be instituted by the Provider solely or in conjunction with administrative remedies.
XV.b. Termination in Effect. The following are to be observed upon effectivity of termination: (a) Client/User shall cease and desist from any and all use of CloudMD Services/App/Account, make good all obligations incurred during the lifetime of these Terms as well as paying all balances owed the Provider; (b) the Provider shall bar all access to the CloudMD Account affected and permanently delete all Client/User Data appurtenant thereto. Notwithstanding the termination of a CloudMD Account, the following Articles of these Terms shall continue to be given effect:
Article I Definition of Terms as Used in these Terms of Service Article II.a The Service Provider Article II.c Relationship of Parties Article II.c Relationship of Parties Article II.f Legal Considerations and Jurisdiction Article II.h Non-waiver of Rights Article II.i Legal Notices Article VI.d Compulsory Disclosure of Client/User Data Article IX Restrictions in Use of CloudMD Accounts/Services Article X Privacy Article XI Intellectual Property Rights Article XII Disclaimer of Warranties Article XIII No Fault Agreement Article XIV Provider’s Liabilities Article XVI Annexes