This is www.econsult.cloudmd.com.ph and these Terms of Service (“Terms”) contain all the terms and conditions that govern the use of our hosting platform through the CloudPx Website/Application (or “Website”, “Site” 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 “CloudPx Services”, and defined herein below.
These Terms, once accepted by you, the “Patient/User” (as defined herein below), form a binding contract, legal and enforceable under laws of the Philippines, between yourself and the Service Provider. Patients/Users acknowledge and agree to these Terms in their individual capacity and make a representation as to legal capacity to bind themselves to these Terms.
ATTENTION: KINDLY READ THESE TERMS VERY CAREFULLY. Your acts of navigating, browsing, accessing, registering for or otherwise using CloudPx Services, the Website, 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 personal capacity to these Terms. Should you not be agreeable to these Terms, do not navigate, browse, access, register for or use CloudPx Services or the Website or App altogether.
CloudPx Services may be availed of free of charge and 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 CloudPx Services or App to any person who shall violate these Terms.
|Account||The relationship between Patient and Service Provider allowing the former to be able to navigate, access and use CloudPx Services, Website or App.|
|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 CloudPx Account or Patient/User Data.|
|CloudPx||Proprietary online doctor directory and e-consult telemedicine management platform accessible by Patients/Users used in conjunction with CloudMD (see www.cloudmd.com.ph), a proprietary electronic medical records management system accessible to licensed physicians, both of which are owned and made commercially available to the Philippine market by Xynapx Inc., the Provider herein;|
|CloudPx App/System||A program which is part of CloudMD Services that can be downloaded or accessed by a User or Patient, allowing him access to his Account, and contains the computing solution for providing the Patient with CloudPx Services and may interchangeably serve as collective terms which include applications, software, hardware, databases, interfaces, media, documentation, updates, and other Materials provided under Services;|
|CloudPx Materials||The visual interfaces, graphics, design, systems, methods, information, computer code, data as well as all other components which comprise CloudPx Services/App;|
|CloudPx Services||Includes the Website, Services, System, App, and all content, services and/or products available on or through the hosting platform;|
|CloudPx Website||The aggregation of all web-based documents including but not limited to image, text, hypertext, .html files, made available through www.econsult.cloudmd.com.ph or its subdomains, or domains with identical names owned by Provider.|
|Content||Any data or information made available through CloudPx App, Services or Website, including audiovisual training materials, commentaries documents, FAQ’s, pictures, presentations and others;|
|Doctor/Physician||A natural person licensed to practice medicine in the Philippines, whose services may be availed of by the Patient (as defined herein below), and may bill the Patient, whether through CloudPx’s third-party payments solution or otherwise, for services including but not limited to 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);|
|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; 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]; Any data or information made available through CloudPx App, Services or Website, including audiovisual training materials, commentaries documents, FAQ’s, pictures, presentations and others;|
|Patient/User||A natural person who has agreed to and accepted these Terms set forth by the Provider;|
|Patient/User Data||Any digital information, data, file or transaction recorded or inserted into the CloudPx System by the Patient, including but not limited to Name, Contact information, Email Address, Date of Birth, Gender, Address, Username, Password, Confirmation Password. This may also cover documents of any kind (images, spreadsheets, notes, etc.) recorded or inserted into the CloudPx System by the Patient;|
|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];|
|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 CloudPx;|
|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];|
|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 Patients on the CloudPx App or Services;|
|User Activity||Any and all interactions or transactions documented or caused to be documented by the Patient with the use of the CloudPx App or Services, including, but not limited to, messaging, patient records, billing, or inventory.|
II.b. Authority and Legal Capacity as CloudPx Patient/User. Acceptance of these Terms is paramount in the use of CloudPx Services. To be able to effectively accept these Terms one must be at least eighteen (18) years of age. As part of CloudPx’s effort to know its customers better, all prospective Patients may, as a prerequisite for use, be required as part of CloudPx’s “Know-Your-Customer” campaign, to present proof of identity.
II.c. Relationship of Parties. Nothing in these Terms shall be construed as constituting employee-employer relations, agency or partnership, or patient-healthcare provider relations between the Provider and Patient, as Xynapx, Inc. merely allows the free use of its online doctor directory and e-consultation telemedicine platform. Throughout the lifetime of these Terms the Provider shall remain an independent information processor and controller of the Patient.
II.d. Acceptance of these Terms by Patient/User and the Provider. The occurrence of the following constitutes as acceptance by both parties of these Terms: (1) for users accessing CloudPx Services which require the use of an Account - the Patient 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 CloudPx Account; and, (2) for users accessing CloudPx 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 CloudPx Website or App. Users are strongly encouraged to check these Terms periodically for such notifications or announcements. The continued use of CloudPx Services or App subsequent to the announcement and implementation of such changes shall constitute the User’s or Patient’s conformity to such changes. Amendment of these Terms will be given automatic effectivity upon (a) continued use of CloudPx 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 Patient and the Provider will be resolved and governed by the Terms in effect at the time the subject of the dispute has arisen.
II.f. Legal Considerations, Jurisdiction and Severability. 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 should fail, legal remedies may be brought before the courts of competent jurisdiction in Cebu City, Philippines, to the exclusion of all others.
Further, it is understood that any provision in these Terms found by competent authority to be void or unenforceable shall not affect the validity or enforceability of the provisions of these Terms not otherwise found to suffer the same defect.
II.g. Assignability of License Granted under these Terms. Under no circumstances will Patient/User 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 CloudPx Account, CloudPx App/Website, CloudPx Materials or CloudPx Services, without Provider’s written consent to the contrary.
II.h. Non-waiver of Rights. Failure of the 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 CloudPx Services to Patients. The Provider will endeavor at all times, as far as practicable, to make available to all CloudPx Services Patients/Users the following: (a) remote support and troubleshooting available during business hours, and does not cover hardware issues, (b) the CloudPx App, Materials, Services, Website, Content and Patient 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 Patient’s account when the Provider determines that there has been an uncorrected act of misuse of CloudPx Services attributable to the Patient/User.
III.b. Patient 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 Patient 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 Patient Data by the Provider personnel except (a) to ensure continued availability of CloudPx 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 Patient or user concerned.
IV. Use of CloudPx Services
IV.a. Making a CloudPx Account. Most of the features of CloudPx Services, and access to the CloudPx App itself shall only be granted to CloudPx Account holders. Parties who wish to create an account shall: (a) complete the sign-up form located within the CloudPx Website; (b) comply with the conditions set about in CloudPx’s “Know-Your-Customer” campaign, including presenting proof identity as well as credit card information, among others; and, (c) accept these Terms by clicking on the “sign up” button and completing input of payment method with the third-party payment portal.
As a rule, each Patient/User must have only one account. These Terms however may be amended by the Provider to allow multiple Patients under one Account.
IV.b. Logging into a CloudPx Account. Each Patient/User shall nominate to the Provider their log-in credentials in the form of a username and password. Patients are responsible for keeping confidential all log-in credentials associated with their CloudPx Account.
CloudPx Services may feature the formal designation of sub-users and the creation of sub-user accounts, each under a specific CloudPx Account. Access to CloudPx 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 CloudPx Account holder opt for other persons to have access to, and possibly add, remove, change or otherwise alter any Patient Data within his Account (including patient records, appointments, or any Patient/User Data), the Patient 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 Patient Data within said Account.
A Patient must promptly notify the Provider of any loss or unauthorized use of any log-in credentials.
IV.c. Use of CloudPx in conjunction with CloudMD. CloudPx Patients may request e-consult appointments with CloudMD Doctors, wherein Patients will be required to (1) fill out the E-consult Patient Consent Form and (2) manifest their conformity to the provisions and conditions therein. Patients are strongly encouraged to carefully read the terms and conditions of the standard E-consult Patient Consent Form before completing and submitting the same. An E-consult Patient Consent Form should be completed and submitted as a requirement for every request for e-consult appointment.
IV.c. Account Termination. Patients may terminate their conformity with these Terms and their 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 Patient Data appurtenant thereto, as soon as practicable, after effectivity of such termination.
IV.d. Pertinent Fees. The access of a CloudPx Account and use of CloudPx Services is currently not subject to any subscription fees.
However, the Patient understands that the Doctor with whom he consults may charge him for professional services rendered at the end of a session.
Payments made through CloudPx’s third-party, PayMaya (see www.paymaya.com) may be subject to prevailing minimal surcharges as reflected in the CloudPx Website’s FAQ’s.
V. Payment Mechanics
V.a. PayMaya Account. Patients are strongly encouraged to effect payment of professional fees through CloudPx’s third-party payments portal, PayMaya, which offers direct payment (i.e., QR Code) and credit card payment services, to ensure seamless and secure transactions. As such, Patients/Users may be required to submit PayMaya account information during sign-up with CloudPx.
V.b. Credit Card Authorization and Information. PayMaya may require the submission of credit card information, among others, upon sign-up. By these Terms you agree to supply PayMaya 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.c. Billing. A Patient charged for professional services will receive a billing notification via SMS or email, allowing him the option to effect payment through CloudPx’s third-party payments management system (i.e., through PayMaya via credit card or QR Code), wherein minimal transactional charges, as reflected in the CloudPx Website, may be applied. Other means to effect payment may be had at the suggestion and discretion of the consulting Physician.
VI. Patient/User Data
VI.a. Uploading Patient Data to CloudPx App/Website. Patients who upload Patient/User Data, especially Personal Information, Sensitive Personal Information and Privileged Information, to the CloudPx Website or App, such Patient/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 Patient. It is the Patient’s responsibility to ensure and warrant that: (1) the Patient does not create, transmit, display or otherwise make available any Patient/User Data that violates these Terms, the rights of the Provider, other Patients, 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 Patient has all the necessary rights and authority to use, generate, alter, delete Personal Information, Sensitive Personal Information or Privileged Information within the CloudPx 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 Patient/User Data with respect to any and all information contained therein, and strongly recommends that Patients 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 CloudPx Website or App. By the same token, the Patient and not the Provider, assumes total responsibility for all Patient/User Data uploaded or posted, as well as any action taken by the Provider or other CloudPx Patients as a result of such Patient/User Data.
VI.c. Unlawful/Violative Patient/User Data. The Provider does not actively filter, monitor or otherwise prescreen any Patient/User Data or processing thereof by the Patient 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 Patient concerned, (2) deny posting/uploading/publication of content so flagged, (3) compel Patient to amend, change or delete the Data deemed unlawful or violative, (4) impose temporary cessation of access to or even permanent deletion of CloudPx Account or Patient/User Data.
Subject to affirmative or corrective action, or justification offered by Patient for flagged Patient/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 Patient or CloudPx Account concerned.
VI.d. Compulsory Disclosure of Patient/User Data. The Provider may disclose, notwithstanding the confidential nature of Patient/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 Patient whose Patient/User Data is affected, of the disclosure. The Provider further commits, where assistance is required by the Patient, 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 Patient.
VII. CloudPx Services
VII.a. Use of CloudPx Service. By and under these Terms, the Provider grants Patients an exclusive, non-transferable, non-sublicensable license to use CloudPx Services to do the following, viz: (1) add, store, organize Patient/User Data, (2) modify, alter, change, remove or delete added, stored or organized Patient/User Data and (3) receive technical assistance from the Provider as regards use of CloudPx Services/Website/App.
VII.b. Technical Support. The Provider undertakes to provide reasonable technical support as provided for in Item III.a of 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 CloudPx Website or App and (3) e-mail: email@example.com
VII.c. Service Feature Modifications. The Provider reserves the right to modify, change, alter, replace or outmode CloudPx 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 CloudPx Services either temporarily or permanently, with proper notice to all Patients in all cases; or, (3) taking 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 CloudPx Services as a whole, (c) the perpetration of any illegal activity, or (d) leasing, sub-leasing or sub-licensing a CloudPx Account.
Whenever applicable, any proposed changes as to features of CloudPx Services, especially those concerning Article IV.d, Pertinent Fees, will be applied thirty (30) days after posting or publication of notice of proposed modification.
Any Patient/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 Patient of CloudPx Services/App after the lapse of the effectivity date of changes proposed will be construed as Patient’s consent to the same. The Provider shall not be liable to Patients and/or third persons for the modification or discontinuation of CloudPx Services, or any part thereof. IT IS UNDERSTOOD THAT PERMANENT DISCONTINUATION OF CLOUDPX SERVICES OR ANY PART THEREOF SHALL ONLY GIVE RISE TO THE OBLIGATION, ON THE PART OF THE PROVIDER, TO TRANSMIT DIGITAL COPIES OF PATIENT/USER DATA TO THE PATIENT/USER CONCERNED, WITH MINIMAL REPRODUCTION AND/OR MAILING COSTS FOR THE ACCOUNT OF THE REQUESTING PATIENT.
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 Patient/User, Provider shall, at the expense of the Patient/User, make such relevant records available to the Patient/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 Patient/User pursuant to this Article shall be for the account of the Patient/User, unless the Patient/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 CloudPx Accounts/Services.
IX.a. Prohibited Activities. The Patient is strictly enjoined to limit its use of CloudPx 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 Patient is expressly prohibited from: (1) using CloudPx 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 CloudPx 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 Patient from rights arising by reason of (a); and, (c) using CloudPx 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 Patient 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:
XI. Intellectual Property Rights
XI.a. Over CloudPx Services. The CloudPx Website, CloudPx App/System, CloudPx tradename and trademarks, and any components thereof are solely and exclusively owned by the Provider. CloudPx 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 CloudPx Services, CloudPx Website, CloudPx App/System and CloudPx Materials, and any parts or elements thereof.
Your use of the CloudPx Services, CloudPx Website, CloudPx App/System and CloudPx Materials, and any components thereof grants you neither ownership nor intellectual property rights therein.
Any commercial or promotional distribution, publishing or exploitation of CloudPx Materials, without prior written approval from the Provider, is strictly prohibited.
The Provider reserves all rights to CloudPx Services, CloudPx Website, CloudPx App/System and CloudPx Materials, and CloudPx tradename and trademarks not expressly granted in these Terms.
XI.b. Over Content. Upon agreement to these Terms, the Provider grants the User/Patient a non-transferable, non-exclusive and non-sublicensable permit to download copies of any Content contemplated within the CloudPx Services as a whole, provided that such User/Patient 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 CloudPx Services.
XI.c. Over Patient/User Data. Every Patient/User is responsible for its own Patient/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 CloudPx Services. The Patient/User acknowledges that : (1) he has all the qualifications set forth in the Chapter on “Authority and Legal Capacity as CloudPx Patient/User”, (2) he owns all Patient/User Data he posts, uploads or publishes through CloudPx Services, (3) the ownership and use of Patient/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 Patients/User constituting customer feedback, comprising data or information provided by Patient/User to the Provider in relation to bugs observed in the use of or comments or recommendations to modify CloudPx Services as a whole, may be used by the Provider at its discretion and incorporate the same to the CloudPx App/Website or CloudPx 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 CLOUDPX MATERIALS, CLOUDPX APP, CLOUDPX WEBSITE, OR CLOUDPX SERVICES. ANY STATEMENTS OR REPRESENTATIONS ABOUT THE CLOUDPX MATERIALS, CLOUDPX APP, CLOUDPX WEBSITE, OR CLOUDPX SERVICES AND THEIR FUNCTIONS OR FUNCTIONALITY IN THE LICENSED ACCOUNT OR ANY COMMUNICATIONS WITH THE PATIENT/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 TIMES AND IN ALL CASES RESOLVE ANY PARTICULAR SUPPORT REQUEST OR THAT SUCH RESOLUTION WILL MEET PATIENT/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 Patient/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 Patient/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 Patient/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 any actual or perceived inconvenience(s) arising from interruption of service (i.e., preventing access to, suspension and/or deletion of Patient/User’s CloudPx 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 CloudPx Services/App/Website as a whole and/or any features thereof, (2) by reason of acts or omissions attributable to Patient/User including but without being limited to: (a) violation of any Philippine law, (b) introduction into the CloudPx Services any Patient/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 Patient/User Data that is inaccurate which may or may not be prejudicial to a third person’s rights, (3) disclosure or deletion of Patient/User Data or interruption or cessation of CloudPx 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 Patient/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 ten (10) business days from written notice by Patient/User affected, for the following instances, to the exclusion of others: (a) unwarranted Patient/User Data disclosure, (b) unwarranted/unexplained interruption or unavailability of service; and (c) discontinuation of CloudPx Services partly or wholly where Provider fails to transmit digital copies of the Patient/User Data to the Patient/User concerned. IN NO CASE SHALL PROVIDER’S MONETARY LIABILITY EXCEED THE AVERAGE OF THE AMOUNTS PAID BY PATIENT/USER TO HIS DOCTOR BY WAY OF PROFESSIONAL FEES FOR THE PERIOD OF THIRTY (30) DAYS IMMEDIATELY PRECEDING THE DATE OF NOTICE OF BREACH BY PATIENT/USER. THE PATIENT/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 PATIENT/USER CONCERNED.
XV. Termination of Terms
XXV.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 Patients/Users at any time through clicking the “deactivate” button located within Account Management Settings, which operates merely to notify the Provider of the intention to terminate services; or (b) by Provider when exercising its sole discretion and sound business judgment to discontinue, either partially or wholly, CloudPx 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) Patient/User shall cease and desist from any and all use of CloudPx Services/App/Account, make good all obligations incurred pursuant to and during the lifetime of these Terms; (b) the Provider shall bar all access to CloudPx Account affected and permanently delete all Patient/User Data appurtenant thereto. Notwithstanding the termination of a CloudPx 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.f||Legal Considerations and Jurisdiction|
|Article II.h||Non-waiver of Rights|
|Article II.i||Legal Notices|
|Article VI.d||Compulsory Disclosure of Patient/User Data|
|Article IX||Restrictions in Use of CloudPx Accounts/Services|
|Article XI||Intellectual Property Rights|
|Article XII||Disclaimer of Warranties|
|Article XIII||No Fault Agreement|
|Article XIV||Provider’s Liabilities|