SeriousMD

 

Terms of Service

 

Welcome to SeriousMD, www.seriousmd.com. These Terms of Service contain the Terms and Conditions (this “Agreement”) that govern the use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “SeriousMD Services”).

 

By availing of and/or using the SeriousMD Services, you, as User, unconditionally accepts (other than the Special Terms, as defined below), the Terms and Conditions contained herein, including our Privacy Policy (at www.seriousmd.com/privacy), the Guidelines (as defined below) and any future modifications thereof, as well as other operating rules, policies, and procedures that may be published from time to time on the Platform or made available to you on or through the SeriousMD Services.

 

Your acceptance of this Agreement forms a legally binding contract between you and SeriousMD (as defined below). If you are entering into this Agreement or will be using the services offered in this Platform on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal and binding authority to do so.

 

PLEASE READ THIS AGREEMENT CAREFULLY. BY REGISTERING FOR, SUBSCRIBING, ACCESSING, BROWSING, AND/OR OTHERWISE USING THE SERIOUSMD SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS, BROWSE OR OTHERWISE USE THE PLATFORM OR THE SERIOUSMD SERVICES.

 

SeriousMD may, in its sole discretion, elect to suspend or terminate access to, or use of the SeriousMD Services to anyone who violates this Agreement.

 

If you register for a free trial of the SeriousMD Services, the applicable provisions of this Agreement will govern that free trial.

 

The original language of this Agreement is English. SeriousMD may make available translations for convenience. In case of conflicts between the original English version and any translation, the English version shall prevail.

 

1.                  Definitions

 

The following terms shall have the definitions stated in this Agreement.

 

Account

the primary means for accessing and using the SeriousMD Services, subject to payment of a Fee designated in the selected Plan;

 

Activity

appointments, patient records, billing, queue, messages, telemedicine services, or any activity done inside the app and on the website;

 

Authorization

the set of rights and privileges on the Web Site assigned to a User or Sub-User by SeriousMD;

 

Content

any data and information available through SeriousMD Services or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments;

 

Fee

Payment made by the User for availing of and/or using the activated Account or the Services of SeriousMD;

 

Files

documents of any kind (images, spreadsheets, text files, etc.) that are inserted to the System by the User, and usually associated with a particular Deal, Person or Organization;

 

Free Trial

temporary access for the purposes of trying out the Web Site and SeriousMD Services in accordance with any selected Plan without paying a Fee;

 

Guidelines

additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through the SeriousMD Services;

 

SeriousMD Materials

the visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of the SeriousMD Services;

 

SeriousMD Services

the Web Site, Services, System, Content, Platform and all content, services and/or products available on or through the Platform;

 

SeriousMD

is owned and operated by LeapFroggr Inc., a corporation established under the laws of the Republic of the Philippines, having its principal place of business at Unit 439, Regina Building, Escolta St. corner Burke St., Binondo, Manila, Philippines 1006;

 

Plan

various criteria related to the use and functionality of the SeriousMD Services and on which the Fee is based;

 

Platform

Refers to the website, www.seriousmd.com, as well as its partner mobile application.

 

Special Terms

any particulars, specifications and conditions by which the parties have agreed to deviate from these Terms;

 

System

the integrated cloud computing solution for providing the SeriousMD Services, including applications, software, hardware, databases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith;

 

Sub-User

a natural person granted with the Authorization to use the Account of a User. This includes, but is not limited to, the secretary, administrative staff, and/or nurse of the User. Sub-Users may only access or avail of Services of SeriousMD, upon the authority of a registered User. The User shall select which SeriousMD Services shall be made accessible to its Sub-Users;

 

User

a natural person who is a licensed and registered physician, authorized to practice medicine in the Philippines, and has accepted this Agreement with SeriousMD. It includes juridical persons, such as hospitals and medical facilities, that hire licensed and registered physicians in providing healthcare services;

 

User Data

Files and any other digital data and information, which is subjected to the SeriousMD Services or otherwise inserted to the System by the User (including the specific Sub-Users, Patients, Persons, Organizations, Patient information, Patient Health Records, Patient Notes, Appointments, Billings, Messages associated with the User);

 

Web Site

the compilation of all web documents (including images, php and html files) made available via www.seriousmd.com or its sub domains or domains with identical names under other top domains and owned by SeriousMD.

 

 

2.                  Authority to Enter into This Agreement with SeriousMD

 

The use of SeriousMD Services is subject to the acceptance of this Agreement. Users of SeriousMD must be of legal age and a licensed and registered physician in the Philippines, with the proper authority to practice medicine. In case of Sub-Users, they must be of legal age and have been duly authorized by the User to avail of the Platform and SeriousMD services.

 

This Agreement is accepted as soon as one of the following occurs:

 

a.                  the person has received the confirmation of the creation of the Account and necessary credentials from SeriousMD in order to log in to his/her/its Account; or

 

b.                  for those SeriousMD Services and parts of the Web Site the use of which is not dependent on creating an Account, upon the moment of gaining access to such services.

 

All Users and Sub-Users may not, without SeriousMD’s prior written consent, access the SeriousMD Services (i) for production purposes, (ii) if you are a competitor of SeriousMD, (iii) to monitor the availability, performance or functionality of the SeriousMD Services or (iv) for other benchmarking or competitive purposes.

 

Once accepted, this Agreement remains effective until terminated as provided for in this Agreement.

 

3.                  Modifications to Terms

 

SeriousMD reserves the right, at its sole discretion, to change, update, modify, add, or remove provisions of this Agreement at any time by posting such changes on or through the Platform or the SeriousMD Services. Changes may be made with or without notice. We will not be liable to you nor to any third-party should we exercise our right to modify.  All Users and Sub-Users are responsible for checking the terms and conditions periodically for changes. Your continued use of the SeriousMD Services after such changes constitutes a binding acceptance of the revised Agreement. Such amended terms will automatically be effective upon the earlier of (i) your continued use of the SeriousMD Services, or (ii) 30 days from posting of such modified Terms on or through the Platform. Notwithstanding the foregoing, the resolution of any dispute that arises between you and SeriousMD will be governed by the Agreement in effect at the time such dispute arose.

 

4.                  Our Responsibilities

 

4.1.            Provision of SeriousMD Services. SeriousMD will (a) make the SeriousMD Services available to a User and Sub-Users pursuant to these Terms, (b) provide applicable standard support for the SeriousMD Services to User and Sub-Users at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make the SeriousMD Services available 24/7, except for: (i) planned downtime (of which SeriousMD shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond SeriousMD’s reasonable control, such as, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack.

 

4.2.            Protection of User Data. SeriousMD will maintain reasonable and appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of User Data, as described in the Guidelines and in accordance with its Privacy Policy.

 

 

5.                  Using the SeriousMD Services

 

5.1.            Establishing an Account. Certain features, functions, parts or elements of the SeriousMD Services can be used or accessed only by registered Users or Sub-Users of an Account. The person who wishes to create an Account must complete the sign-up procedures and fill-in the necessary forms in the SeriousMD website. The necessary forms may require the Users and Sub-Users to provide their personal information, and to warrant that they have read and have given their affirmative consent to the terms of SeriousMD Privacy Policy for the processing of their personal information.

 

Users further warrant that they possess the necessary license, eligibility, and qualifications under Philippine laws and professional regulations to perform professional medical services. SeriousMD shall perform an initial verification prior to registration in the SeriousMD website by requiring the presentation of Users’ professional license, as provided by the Professional Regulatory Commission. However, SeriousMD does not give warranties that Users possess and maintain such necessary license, eligibility, and qualifications. SeriousMD, through LeapFroggr Inc., its successors-in-interest, stockholders, officers, directors, agents, or employees, shall not be liable for any damages arising from the absence or defects of such necessary license, eligibility, and qualifications.

 

Each User is entitled to have only one Account. If several persons need to use an Account created by the User, the User must designate such persons as Sub-Users, who will be subject to the same restrictions set forth in this Agreement.

 

If User has designated Sub-Users and granted them Authorization, such Sub-Users will be deemed to be authorized to act on behalf of User when using the Account. SeriousMD is neither responsible for verifying the right of representation or validity of Authorization nor for any acts done by Sub-Users. SeriousMD, however, reserves the right to ask for additional information or written proof of authorization by Sub-Users before allowing the use of SeriousMD Services.

 

Sub-Users may be associated with multiple Users and Accounts. Deleting a Sub-User from one Account will not remove the Sub-User from the Platform if he/she is connected to multiple Accounts. However, all data associated with the deleted Sub-User account will no longer be accessible to the Sub-User.

 

The User and Sub-Users, if any, associated with an Account must provide SeriousMD with true, accurate, current, and complete information about the Users, Sub-Users or Account and keep it up to date.

 

5.2.            Logging into an Account. The User shall create his or her Login Credentials by providing an e-mail username and password during account registration. Users can access their accounts by inputting their Login Credentials in the website. These Login Credentials must not be used by multiple persons. If User has designated several Sub-Users, each Sub-User will be provided with separate Login Credentials. All Users and Sub-Users are responsible for keeping confidential all login credentials associated with an Account. Users must promptly notify SeriousMD:

 

a.         of any disclosure, loss or unauthorized use of any Login Credentials;

b.         of a Sub-User’s departure from the User’s organization;

c.         of a change in a Sub-User’s role in the User’s organization;

d.         of any termination of a Sub-User’s right for any reason.

 

5.3.            Termination of Account. Users may terminate this Agreement at any time as provided in Section 16. SeriousMD shall permanently delete the Account as soon as reasonably practicable after the effective date of the termination.

 

5.4.            Fees. The use of an Account is subject to a Fee. Upon sign-up for an Account, the User is given a limited free trial period. After the free trial, User must select a Plan. There are corresponding rates applicable to each Plan. The applicable Fee is charged in advance on monthly or annual payment intervals, unless agreed otherwise between parties. All Fees are non-refundable. If, after signing up, User elects to upgrade to a more expensive Plan, the unused portion of any prepaid Fees shall be applied to the Fee of the more expensive Plan.

 

SeriousMD reserves the right to change prices for SeriousMD Services at any time and does not provide price refunds in the event of promotions or price decreases. Notwithstanding the foregoing, SeriousMD shall notify the Users of any price changes at least thirty (30) days before effectivity. Existing subscriptions will be honored until the expiration of the applicable subscription term.

 

All Fees are exclusive of all taxes, levies or duties applicable under any applicable law, unless otherwise stated herein. Users are solely responsible for the payment of such taxes, levies or duties.

 

5.5.            Changing Plans. Any User has the right to upgrade or downgrade a current Plan at any time by selecting a new Plan among the collection of Plans offered by SeriousMD. In such an event, the User’s credit card on file with SeriousMD will automatically be charged with a Fee for the next payment interval with the rate stipulated in the new Plan. Downgrading of the current Plan may cause the loss of features or capacity of the Account, as well as the loss of User Data.

 

5.6.            Free Trial. A new User may be entitled to a Free Trial, unless the User has applied for the Account as a result of an ongoing marketing campaign organized by SeriousMD in co-operation with its partners. If the parties have not agreed otherwise, the default Plan for the Free Trial shall be the Plan with the lowest Fee. The User is not required to provide any credit card information during the period of Free Trial. If the period of Free Trial has expired, the Account will be automatically deactivated. In order to prevent deactivation or to reactivate the Account, the User is required to select a suitable Plan and pay the first Fee. If the User does not pay the first Fee within 2 weeks from the expiry of the Free Trial, SeriousMD has the right to permanently delete the Account, including all User Data associated therewith. In addition to the current collection of Plans, SeriousMD may offer special discounts and promotions.

 

6.                  Payment

 

6.1.            Timely Payment. User agrees to timely pay all amounts due and owing pursuant to the chosen subscription plan and for all other fees that may be billed in connection with the use of SeriousMD Services.

 

6.2.            Credit Card Authorization. SeriousMD may seek pre-authorization of User’s credit card account prior to the purchase of SeriousMD Services in order to verify that the credit card is valid and has the necessary funds or credit available to cover the intended purchase. For this purpose, Users hereby authorize such credit card account to pay any amounts described herein and authorize SeriousMD to charge all sums described in this Agreement to such credit card account. You agree to provide SeriousMD updated information regarding your credit card account upon request and at any time the information earlier provided is no longer valid.

 

6.3.            Electronic Invoice. If SeriousMD has not sought pre-authorization of your credit card, then before the end of each payment interval, Users will be issued an electronic invoice for payment of the Fee of the next payment interval. Users must pay the invoice by the due date indicated on the invoice to avoid termination or closure of the Account.

 

7.                  User Data

 

7.1.            Uploading User Data to Platform. Once a User or Sub-User registers and subscribes to SeriousMD Services, he/she is required to upload User Data to the Platform, and at the same time signify express consent to authorize SeriousMD to collect and process the User Data. In all instances of uploading, using, sharing, and storage of User Data in SeriousMD, all Users and Sub-Users are responsible for ensuring that:

 

a.                  the User and Sub-Users associated with the Account do not create, transmit, display or make otherwise available any User Data that violates the terms of this Agreement, the rights of SeriousMD, and other persons.

b.         the User and/or all Sub-Users associated with the Account have the necessary right, consent, and authority to use the User Data, including, among others, the uploading of the same onto the Platform and its processing in accordance with the Data Privacy Act of 2012.

c.         the User and/or all Sub-Users data are true and up to date and it is your sole responsibility to update the same if there are any changes so that all your records are current, complete, and accurate.

 

7.2.            No Guarantee of Accuracy. You understand that all information contained in User Data is the sole responsibility of the person from whom such data originated. This means that the User and/or Sub-Users, and not SeriousMD, are entirely responsible for all User Data that is uploaded, posted, transmitted, or otherwise made available through the SeriousMD Services. SeriousMD does not guarantee any accuracy with respect to any information contained in any User Data. Neither does SeriousMD guarantee the accuracy of the results of all processing and analytical tools of SeriousMD that rely on the accuracy of such User Data.

 

7.3.            Unlawful Data. SeriousMD is not obliged to pre-screen, monitor or filter any User Data or acts of its processing by the User and Sub-User in order to discover any unlawful nature therein. However, if such unlawful data or the action of its unlawful processing is discovered or brought to the attention of SeriousMD or if there is reason to believe that the processing of certain data or information by the User or Sub-User is unlawful, SeriousMD has the right to:

 

a)      notify the User of such unlawful User Data;

b)      deny its publication on the Web Site or its insertion to the System;

c)      demand that the User or Sub-User bring the unlawful User Data into compliance with this Agreement and applicable law;

d)      temporarily or permanently remove the unlawful User Data from the Web Site or Account, restrict access to it, or delete it.

 

In addition to the foregoing, should SeriousMD determine, in its sole discretion, that the uploaded or processed User Data violates applicable laws, rules or regulations, or this Agreement, SeriousMD may remove such User Data at any time with or without notice.

 

7.4.            Protection of User Data. SeriousMD respects and values its Users’ and Sub-Users’ privacy. As such, we adopt reasonable and appropriate security measures to safeguard the confidentiality and privacy of all personal information uploaded or shared through the SeriousMD Services. SeriousMD’s Privacy Policy is incorporated in this Agreement by reference. For further discussion, please visit seriousmd.com/privacy-policy.

 

8.                  Services

 

8.1.            Use of the SeriousMD Services. Subject to this Agreement, and the payment of the applicable service Fee, SeriousMD grants Users and its authorized Sub-Users a non-exclusive, non-transferable, non-sub-licensable license to use the SeriousMD Services to:

 

a)                  collect, store, and organize User Data, such as add new Patients, create Appointments, create Vitals, Health Records, Doctor’s Notes, Messages; add new Users and Sub-Users and grant them Authorizations;

b)                  modify and delete User Data;

c)                  customize the standard features of the SeriousMD Services;

d)                  receive reasonable help and guidance from SeriousMD regarding the use of the SeriousMD Services; and,

e)                  Telemedicine services.

 

8.2.            Technical Support. SeriousMD shall provide reasonable technical support to the User and its authorized Sub-User upon request within a reasonable period and depending on available manpower. SeriousMD shall respond to inquiries of support from a User or Sub-User coming from the communication channels listed below.

 

The contacts for all inquiries of support are:

a)                  instant messaging: support area is located on the lower left hand side nav bar inside the application,

b)                  built-in notification application on the Web Page,

c)                  e-mail: support@seriousmd.com

 

8.3.            Modifications to Service. SeriousMD reserves the right to modify the SeriousMD Services or any part or element thereof from time to time without prior notice, including, without limitation:

a. rebranding the SeriousMD Services at its sole discretion;

b. ceasing to provide or discontinuing the development of any particular SeriousMD Service or part or element of the Platform temporarily or permanently;

c. taking such action as is necessary to preserve SeriousMD’s rights upon any use of the SeriousMD Services that may be reasonably interpreted as violation of SeriousMD’s intellectual property rights. SeriousMD also reserves the right to take any and all action which is necessary to prevent illegal activity through SeriousMD Services.

 

As applicable, Users may be notified of such modifications when logging in to the Account. Modifications, including change in applicable rates for the SeriousMD Services, will be made thirty (30) days before the effective date of such modification.

 

If the User does not accept the modification, the User shall notify SeriousMD before the effective date of the modification, and this Agreement will automatically be terminated on the effective date of the modification.

 

The User’s continued use of the SeriousMD Services, or any part or element thereof, after effective date of modifications shall indicate its consent to the modifications. SeriousMD shall not be liable to the User or to any third person for any modification, suspension or discontinuance of the SeriousMD Services, or any part or element thereof.

 

9.                  Restrictions

 

9.1.            Prohibited Activities. Users and their authorized Sub-Users may use the SeriousMD Services and any part or element thereof only within the scope, means and purposes as identified in this Agreement and applicable law. By way of example, no User or Sub-User may:

 

a)                  use the SeriousMD Services or any part or element thereof to commit a crime, violate or breach any applicable law, or entice or invite others to carry out such illegal actions;

b)                  copy, duplicate, distribute, modify, adapt, hack, create derivative works, reverse engineer or decompile the SeriousMD Services or any part or element thereof, or attempt to extract the source code thereof;

c)                  use the SeriousMD Services or any part or element thereof other than the purpose for which it is intended, unless it has agreed to these Terms.

 

9.2.            Certain Uses Require SeriousMD Consent. Any User or Sub-User may not, without SeriousMD’s prior express written consent:

 

a)                  sell, resell, lease, license, sublicense, distribute, provide, disclose, divulge, exploit or otherwise grant access or make the SeriousMD Services available in whole or in part to any third persons, unless such third person is another authorized Sub-User of the User;

b)                  use the SeriousMD Services or any part or element thereof in a scope, with means or for purposes other than those for which their functionality was created;

c)                  use the SeriousMD Services or any part or element thereof by means of programs that send them automatic enquiries or requests, unless such program has been made available by SeriousMD;

 

10.              Intellectual Property Rights

 

10.1.        SeriousMD’s Intellectual Property Rights in the SeriousMD Services. The SeriousMD Services, SeriousMD Materials, SeriousMD trade names and trademarks, and any parts or elements thereof are solely and exclusively owned and operated by SeriousMD and its third-party vendors and hosting partners, as the case may be. SeriousMD Materials are protected by copyright, patent, trade secrets, and trademark laws, international conventions and treaties, and all other relevant intellectual property and proprietary rights laws. SeriousMD, its affiliates and licensors retain all rights, title and interest on such tradenames, trademarks and any parts or elements. Your use of the SeriousMD Services and SeriousMD Materials, and any parts or elements does not grant to you any ownership right or intellectual property rights therein. Any commercial or promotional distribution, publishing or exploitation of the SeriousMD Materials is strictly prohibited unless you have received the express prior written permission from SeriousMD or the otherwise applicable rights holder. SeriousMD reserves all rights to the SeriousMD Services, SeriousMD Materials and SeriousMD trade names and trademarks not expressly granted in the Terms.

 

10.2.        Content Owned by SeriousMD. Subject to these Terms and the payment of the applicable service Fee, SeriousMD grants User and its authorized Sub-Users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or through the Platform or the SeriousMD Services. You shall not copy, distribute or publish any Content or any information obtained or derived therefrom except as permitted on or through the SeriousMD Services or as otherwise permitted by applicable law.

 

10.3.        Use of User Data.

 

a.                  SeriousMD may use User Data in an aggregated and anonymized format for research, educational and other similar purposes. SeriousMD may not otherwise use or display any User Data without the User’s written consent. SeriousMD respects your right to exclusive ownership of your User Data. Unless specifically permitted by you, your use of the SeriousMD Services does not grant it the license to use, reproduce, adapt, modify, publish or distribute the User Data created by you or stored in your Account. User expressly grants SeriousMD the right to use and analyze aggregate system activity data associated with use of the SeriousMD Services for the purposes of optimizing, improving or enhancing the way the SeriousMD Services operate, and to create new features and functionality in connection with the SeriousMD Services.

 

b.                  All Users are solely responsible for the User Data in their Account and the consequences of posting or publishing them on or through the SeriousMD Service. In connection with User Data stored or uploaded to SeriousMD Services, you, as User, represents, and warrants that the User either owns its User Data or has the necessary licenses, rights, consents, and permissions to use and authorize the SeriousMD to display or otherwise use the User Data entered into the SeriousMD Services, and that your use of the User Data does not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) violate any applicable law or regulation anywhere in the world; or (c) require obtaining a license from or paying any fees and/or royalties by SeriousMD to any third party for the performance of any SeriousMD Services.

 

10.4.        Feedback. If a User or Sub-User provides SeriousMD with any comments, bug reports, feedback, or modifications for the SeriousMD Services (“Feedback”), SeriousMD shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the SeriousMD Services. The User or Sub-User (as applicable) hereby grants SeriousMD a perpetual, irrevocable, nonexclusive, royalty free license under all rights necessary to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit and use your Feedback for any purpose.

 

11.              Third-Party Sites, Products and Services

 

The SeriousMD Services may include links to other websites or services (“Linked Sites”) solely as a convenience to Users. SeriousMD does not endorse any such Linked Sites nor guarantee the accuracy, security or reliability of any information, material, products, or services contained or accessible therein. Furthermore, SeriousMD makes no validation and express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK. YOU FURTHER AGREE THAT SERIOUSMD IS NOT RESPONSIBLE FOR ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY, ESPECIALLY FOR DAMAGES OR LOSS THAT MAY RESULT THEREFROM, IF ANY.

 

12.              Disclaimers; No Warranty

 

YOU ACKNOWLEDGE THAT YOUR USE OF ALL SERVICES IS AT YOUR SOLE RISK. UNLESS OTHERWISE EXPRESSLY STATED BY SERIOUSMD, THE SERIOUSMD SERVICES, SERIOUSMD MATERIAL, AND ANY CONTENT, SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERIOUSMD SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SERIOUSMD AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO:

 

A.)               IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS, CORRECTNESS, ACCURACY, AND RELIABILITY;

B.)               UNINTERRUPTED OR ERROR-FREE SERVICES, THAT DEFECTS, IF ANY, WILL BE CORRECTED, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS;

C.)               ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, THE SERIOUSMD SERVICES, SERIOUSMD MATERIAL OR ANY LINKED SITES, IN TERMS OF CORRECTNESS, ADEQUACY, ACCURACY, RELIABILITY, TIMELINESS OR OTHERWISE.

 

YOU ACKNOWLEDGE AND AGREE THAT SERIOUSMD IS NOT RESPONSIBLE FOR ANY PRINTING, TYPOGRAPHICAL OR TECHNOLOGICAL ERRORS; ELECTRONIC, HUMAN, EQUIPMENT PROGRAMMING OR OTHER ERROR, OMISSION, INTERRUPTION, DEFECT OR DELAY WHICH MAY OCCUR THRU THE USER’S USE OF SERIOUSMD SERVICES; INCORRECT, INACCURATE, LATE, LOST, STOLEN, ILLEGIBLE, INCOMPLETE OR MISDIRECTED MATTERS OR INFORMATION REGARDLESS OF THE MATTER, MEDIA, INFORMATION OR FORM THEREOF, TECHNICAL FAILURES OF ANY KIND, INADVERTENT LOSS OF INFORMATION; OR UNAUTHORIZED HUMAN INTERVENTION IN ANY PART, MATERIAL OR PROCESS OR OTHERWISE.

 

13.              Indemnification

 

You agree to defend, indemnify and hold harmless SeriousMD and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees of any kind whatsoever, arising, directly or indirectly out of your use or misuse of the SeriousMD Services. SeriousMD reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify SeriousMD, and you agree to cooperate with such defense of these claims.

 

14.              Force Majeure

 

SeriousMD shall not be liable for any damage, claims, liabilities, losses, costs and expenses arising out of the delay, error, or interruption of its performance of any obligations due to any act of God, act of governmental authority, act of public enemy, war, riot, flood, civil commotion, insurrection, severe weather conditions or any other cause beyond SeriousMD's reasonable control.

 

15.              Limitation of Liability

 

15.1.        No Liability: SeriousMD shall not be liable to the User or Sub-User for any consequences resulting from:

 

a)                  any modifications in this Agreement, calculation and rates of Fees, the SeriousMD Services, SeriousMD Material, or any part or element thereof (including but not limited to Account), including any error, permanent or temporary interruption, discontinuance, suspension or other type of unavailability of the SeriousMD Services or SeriousMD Material;

b)                  deletion of, corruption of, or failure to store any User Data;

c)                  use of User Data by the User or Sub-Users associated with the Account;

d)                  upgrading or downgrading the current Plan;

e)                  any disclosure, loss or unauthorized use of the login credentials of User or any authorized Sub-User due to the negligence or fault of the User or Sub-User;

f)                   the User or Sub-User’s use of the Account or the SeriousMD Services by means of browsers other than those accepted or supported by SeriousMD;

g)                  the differences between technologies and platforms used for access, for example, if certain features, functions, parts or elements of the SeriousMD Services are designed for use on a personal computer or laptop and do not function on a mobile platform or a tablet;

h)                  SeriousMD’s application of the remedies described in these Terms, even if the reasonable grounds or legal basis for the application of these remedies turned out to be unfounded or invalid afterwards.

 

In addition, SeriousMD shall not be liable for any claim by any person, whether natural or juridical, including third parties, arising out of the User or Sub-User’s failure to:

 

a)                  provide SeriousMD with accurate information about the User or Sub-Users of the Account;

b)                  notify SeriousMD of any reasons due to which a User or Sub-User does not have the right to use the Account;

c)                  provide any Products which it has agreed to provide to any person (whether such failure arises as a result of SeriousMD’s negligence or otherwise);

d)                  ensure the lawfulness of the User Data;

e)                  obtain the necessary rights to use the User Data.,

f)                   obtain the necessary consent for the collection and processing of personal information of a third party, such as a patient;

g)                  process the personal information of a third party for a legitimate ground;

h)                  comply with all requirements on security and remedial controls, as mandated by applicable security and privacy laws; or

i)                    abide by any of the restrictions described in this Agreement.

 

15.2.        Limitation of Liability. As previously mentioned, your use of SeriousMD Services will be at your own risk. Under no circumstance shall SeriousMD be liable for any claim relating to any loss or damage that you might directly or indirectly suffer (including, without limitation, incidental, special, consequential, or moral damages, loss of profits, and damages resulting from lost data or business interruption) as a result of your use, inability to use, delay in or interruption of your use of SeriousMD Service, irrespective of the cause of that inability, delay or interruption, any corruption of any data that is transmitted by any method whatsoever, your reliance upon any information presented in any intentional or unintentional disclosure or publication of any information transmitted to you, or any other act, omission, matter or thing whatsoever having to do with SeriousMD Services. In circumstances where the foregoing limitation is finally determined to be unavailable, you acknowledge and agree that SeriousMD’s aggregate liability to you for any damages, losses, fees, charges, expenses or liabilities shall not exceed the equivalent amount of the User’s one (1) month Fee for the use of SeriousMD Services. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability.

 

15.3.        Exclusion of Consequential and Related Damages. IN NO EVENT WILL SERIOUSMD OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

16.              Termination of this Agreement

 

16.1.        For Convenience. These Terms may be terminated for convenience upon written notice to the other party as indicated in the “Notice” Section below:

 

a)                  by the User at any time by clicking the appropriate link on the Web Site, when logged in the Account, or if the User is paying for the Service with a PayPal account, by revoking the billing agreement on its PayPal profile;

b)                  by SeriousMD upon decision to end provision of the SeriousMD Services and to close the Platform; or

c)                  immediately by either party, if proceedings are initiated for the other party’s liquidation or insolvency or a negotiated settlement with the other party’s creditors is concluded or an assignment is made on behalf of the other party for the benefit of creditors.

 

16.2.        For Default. This Agreement, and consequently, the use of SeriousMD Services may be terminated for default upon written notice to the other party as indicated in the “Notice” Section below:

 

a)                  by either party in case of breach of this Agreement by the other party, if the breach has not been cured within 30 days of receipt of a notice from the non-breaching party; or

b)                  immediately by either party if the other party breaches its obligations under this Agreement.

 

16.3.        Effect of Termination. Upon termination of this Agreement:

 

a)                  SeriousMD shall deactivate and permanently delete the Account, as soon as reasonably practicable after the effective date of termination of this Agreement. If the User has specifically requested for an earlier deletion of the Account, SeriousMD shall fulfill such request within one (1) month of its receipt of such request.

 

b)                  User, and its Sub-Users, must:

                                                        i.            stop using and prevent the further usage of the SeriousMD Services, including, without limitation, the Platform;

                                                      ii.            pay any amounts owed to SeriousMD under this Agreement; and

                                                    iii.            discharge or fully settle any liability incurred by the User under this Agreement prior to their termination.

 

16.4.        Remedies. If SeriousMD terminates this Agreement as a result of an uncured breach by a User or Sub-User, SeriousMD is entitled to use the same or similar remedies against any other persons who use the SeriousMD Services in conflict with this Agreement. Notwithstanding the foregoing, SeriousMD may also apply any other remedies available to it under the applicable law.

 

If SeriousMD has reasonable grounds to believe that the continued use by User or Sub-User of the SeriousMD Services, including the Account, may harm any third persons, SeriousMD has the right to take adequate measures under its control to prevent, stop and eliminate the harm, where possible, in order to protect those third persons.

 

17.               Dispute Resolution

 

17.1.        Governing Law and Jurisdiction. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof shall be settled by arbitration in the Philippines by a panel of three (3) arbitrators in accordance with the Philippine Dispute Resolution Center, Inc. (“PDRCI”) Arbitration Rules as at present in force. Should interim judicial relief be necessary in connection with this Agreement, the parties may seek appropriate relief before the courts of Manila to the exclusion of other venues.

 

18.              General Provisions

 

18.1.        Relationship of the Parties. The parties will act solely as independent contractors. This Agreement shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between the User, Sub-User and SeriousMD, and the User or Sub-User shall not represent to the contrary, whether expressly, by implication, appearance or otherwise.

 

18.2.        Severability. If any provision of this Agreement is declared illegal or unenforceable, its invalidity shall not affect the other provisions of this Agreement that can be given effect without the invalid provision. If any provision of this Agreement does not comply with any Law, such provision to the extent possible shall be interpreted in such a manner to comply with such Law, or if such interpretation is not possible, it shall be deemed to satisfy the minimum requirements thereof.

 

18.3.        Assignment. Users or Sub-Users may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer this Agreement or delegate any of its rights and/or obligations under this Agreement without SeriousMD’s prior written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable.

18.4.        No Waiver. Failure of either Party to exercise or enforce any provision of or any of its rights under this Agreement shall not be deemed a waiver of future enforcement of that or any other provision or right.

 

18.5.        Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement shall be effective: (a) as to the User or Sub-User, by appropriate electronic mail to its registered e-mail address, or thru posting of the same in the SeriousMD Services or the Account; and (b) as to SeriousMD, by electronic mail at the following e-mail address: legal@seriousmd.com or thru registered mail at its address indicated above.

 

 

Last update: May 10, 2020