Cloudphysician RADAR - Master Services Agreement

MASTER AGREEMENT

This Master Smart-ICU Services Agreement (“Master Agreement”) is entered into as of the Effective Date as mentioned in the relevant Order between Cloudphysician Healthcare Private Limited (“CP” or “Cloudphysician” ) and you (“Client”) and forms part of the Agreement that governs Client’s use of the Services. Unless otherwise indicated, capitalized terms have the meaning assigned to them in the Agreement. CP and the Client shall be individually referred to as “Party” and collectively referred to as “Parties”.

CP is engaged in the business of rendering Services (as defined below) including ICU management services through its platform RADAR to the hospitals as more particularly detailed out in Annexure B of this Agreement. Client is a hospital which provides various kinds of medical services to the patients.

Client is desirous of procuring the Services provided by the CP, on terms and conditions as set out hereunder.

DEFINITIONS
1. “Agreement” shall mean and include this Master Agreement, the referenced or attached Annexures and any accompanying Order or future Order that may be executed by the Parties;
2. “Basic Facilities” shall mean the list of facilities at the Hospital Premises as set out in Annexure A of this Agreement;
3. “Confidential Information” means all material, non-public information whether or not marked “confidential” or “proprietary” at the time of disclosure and information relating to the terms of the Agreement, associated with the Party’s activities (including the Party’s business affairs, financial dealings, operations, commercial strategies, business strategies, business plans, processes, technical information, clients and supplier information, patient information, know-how, proprietary rights, Intellectual Property, designs, trade secrets, and market opportunities), or the personal and medical information regarding the Patient, Patient Information, which is disclosed by either Party to the other Party in connection with this Agreement;
4. “Effective Date” means the effective date as mentioned in the relevant Order.
5. “ICU” shall mean the Intensive Care Unit at the Client’s Premises;
6. "Physician” means the registered medical practitioners virtually provided and/or deputed by CP for providing Services under this Agreement;
7. “Intellectual Property” shall mean and include any and all rights, titles and interests, now known or hereafter known, whether or not registered or registerable, in and to any and all Confidential Information, trade secrets, patents, copyrights, service marks, logos, business names, trademarks, know-how, designs, utility models, inventions, (whether registered or unregistered) internet domain names, applications for any of the foregoing with respect to registration, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force, or other intellectual or industrial property rights (of every kind and nature throughout the universe and however designated), as well as any and all moral rights, rights of privacy, publicity and similar rights of any type, and the right to sue for passing off and any other rights equivalent to any of the foregoing in any jurisdiction worldwide and any application for registration of the foregoing, and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, foreign or domestic;
8. “Non-Identifiable Patient Information” shall mean all Patient Information remaining after the removal of all data that may, whether directly or indirectly in conjunction with any other data, be used to identify the data subject or Patient;
9. “Order” means an order form (“Order Form”), online order (including the provisioning of any Services), statement of work (pursuant to an Order Form), or similar agreement for the provision of Services, entered into by the Parties or any of their affiliates, incorporated by reference into, and governed by, the Agreement;
10. “Patient Information” shall mean the detailed medical records of the Patients including clinical history, latest data including imaging data, pathology report and physicians’ notes, and all other relevant documents such as genetic test reports and surgery reports, if applicable and shall expressly include “personal data” and “sensitive personal data” (as defined under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011);
11. “Patients” shall mean the patients of the Client admitted to the ICU and any other patient at the Premises requiring the Critical Care Services;
12. “Premises” shall mean the hospital premises of the Client’s Hospital, as communicated by the Client to CP in writing;
13. “Services” shall mean the services performed by CP pursuant to this Agreement remotely, as more particularly set out in Annexure B of this Agreement and including maintaining patient records and documentation as may be required by the Client at the ICU or for patients who are in pre or post ICU stage, and expressly does not include routine ward services or any in-person consultations to the patients directly.
SERVICES THAT CLOUDPHYSICIAN WILL PROVIDE:
1. The Client appoints CP and CP accepts the appointment as service provider with effect from the Effective Date for providing the Services (more particularly set out in Annexure B attached herein) to the Client, in consideration of the fees as set out in the Order and under terms of this Agreement.
CONSIDERATION:
1. CP agrees to provide the Services for consideration as set out in the Order ("Fees”). The Parties agree that CP will raise an invoice on the Client and the Client shall pay CP, within Seven (07) days from the date of the invoice, the Fees in the manner as set out in the Order in respect of the Services rendered in the previous month and the payment of Fees as consideration is the essence of the Agreement.
2. CP is a registered MSME entity with Registration number - UDYAM-KR-03-0160290 under the Micro, Small and Medium Enterprises Development Act 2006 ("MSME Act”). As per the provisions of S. 16 of the said Act, if the Client fails to make the payment as per the agreed terms, i.e., within fifteen (15) days from the date of invoice, then the Client shall be liable to pay interest with the monthly rests, compounded at three (3) times the bank rate notified by RBI. In case, the Client consistently fails to pay an outstanding amount to CP, then CP reserves the right to suspend the Services till the payment has been made in full by the Client.
3. In the event the Client disputes the amount raised in an invoice or any part thereof, the Client shall issue a written notice describing the reasons and details for disputing the invoice within ten (10) days of the date of receipt of the invoice. Should the Client raise no dispute within ten (10) days from the date of receipt of the invoice, it shall be deemed that the Client has accepted the relevant invoice.

OBLIGATION OF THE CLIENT
1. Collection
  1. Client shall be responsible for collecting and inputting the Patient Information in the RADAR platform. CP shall have the right to collect in its system, store and retain data of the Patients while providing the Services to the Client.
  2. While collecting the data or information of the Patients, the Client is obligated to comply with the Information Technology Act, 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.
  3. The Client shall at all times ensure that prior written consent is obtained from the Patients prior to collection and sharing of data including Patient Information and express authorization is specifically obtained from Patients in order to share their data with CP for the purpose of this Agreement. The suggested format of the consent may follow the template as mentioned in Annexure C.
  4. The Client acknowledges and agrees that the Patient Information, which is anonymized, along with the findings, inferences, observations made by CP, maybe used by CP for its internal benchmarking, quality control purposes, learning and research purposes and such other purposes deemed fit by CP. It is agreed that during the term and after termination of this Agreement, CP shall have right to retain and store the Patient Information provided by Client in its records and [on the platform RADAR] for any future references, in compliance with the Information Technology Act, 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.
2. The Client shall comply and shall ensure that all the doctors and staff complies with the applicable laws including the guidelines issued by Government of India or Medical Council of India from time to time including but not limited to Guidelines issued by Medical Council of India in partnership with Niti Aayog on March 25, 2020.
3. The Client shall appoint a contact person, who will be Client’s representative and its primary contact for purposes of this Agreement.
4. The Client will periodically deliver to CP information relating to data, specification, Basic Facilities, Patient Information, personal information, and other information and material at Client’s cost for CP’s use in carrying out the Services. The Client shall upon CP’s request provide CP with information which CP reasonably deems necessary to facilitate the purpose and timely discharge by CP of its obligations under this Agreement. CP shall not be liable for any failure in the performance of its obligations under this Agreement to the extent that such failure results directly from:
  1. A failure by the Client to provide CP within a reasonable time with any information or items which are reasonably requested by CP for the performance of the Services; or
  2. Any material or any materially inaccurate, incorrect or misleading information supplied by the Client to CP and upon which CP relies in agreeing to the functional/technical specification; or
  3. Failure of Client to maintain the Basic Facilities in working condition at the Premises; or
  4. For any service outages, including, but not limited to those caused by or related to maintenance issues, servers, the technology that underlies the CP services, failures of CP’s direct or indirect service (including, but not limited to, telecommunications, hosting and power), computer viruses, natural disasters or other destruction or damage to CP facilities, for causes beyond CP’s reasonable control; or
  5. For any error of judgment or deficiency in services on the part of the medical practitioners or nurses of the Client causing losses to the Patients.
5. CP shall not at any time directly share the outcome, results of the medical treatment or medical record of the patient with any other third party other than (i) its directors, officers, employees, consultants, agents, contractors only on a need to know basis; and (ii) the Client or its authorized representative. However, the above provision shall not be applicable in the event:
  1. CP is required to disclose any outcome, results of the medical treatment or medical record of the patient, to comply with applicable laws or court orders, decrees or proceedings or governmental, or is required by rules or regulations.
  2. If the patient directly requests CP to share its personal information and/ or medical data, provided that CP shall provide reasonable intimation to the Client, regarding such request.
6. The Client shall be responsible for the set-up and maintenance and upkeep of the Basic Facilities and such other medical equipment, devices and machines required at Hospital and ICU facilities.
7. The Client shall ensure that its medical practitioners, nurses and health practitioners are well trained and qualified and authorized as per the applicable laws.
8. The Client shall procure, maintain, upkeep and incur all associated expenses associated with additional software and hardware required for using the platform RADAR including internet connectivity and backup power, located at the Client’s premises.
9. The Client shall be under an obligation at all times to intimate the Patient about the details of CP’s Physicians who will provide consultation, prescription or telemedicine services to the Patients in compliance with the provisions of applicable laws.
10. It is hereby agreed and acknowledged by the Client that CP shall not be providing any in-person consultation or any medical advice or any medical prescription to Patients directly.
11. Further, the Client acknowledges that CP and the Physician deputed by CP for providing Services will not have access to any physical or in-person diagnosis of the subject patient of the Client and the Services will be dependent on information provided by the Client and its doctors. The Client agrees and acknowledges that any consultation, medical advice or recommendation provided by CP or the Physician deputed by CP for the Services to doctors/ healthcare professionals of the Client is subject to the review and final decision of the doctors/ healthcare professionals of the Client given the limited examination of Patients by CP basis the information provided by Client and its doctors. Further, it is hereby agreed that CP shall not be liable for any damages/ claims made by the Patients for any medical negligence or losses caused to the Patient made whether against the on-site doctors of the Client or against CP.

INTELLECTUAL PROPERTY
1. Restricted Use:
  1. The Parties agree that any Intellectual Property, including, trademarks, logos, trade names and identifying slogans, which are owned by them respectively, cannot be used by the other Party for any purpose other than the purposes of this Agreement, without the prior written consent of the relevant Party, unless otherwise expressly stated herein.
  2. Notwithstanding Clause 5.1 (a), the Client shall provide a suitable place of agreeable dimensions in its premises for CP and its employees, agent, consultant to carry out its branding activities.
  3. The parties hereby agree that CP is permitted to use the Client’s or its affiliates’ name or logo in any label, press release, or advertising, or for any other promotional purpose.
  4. Further, CP agrees to grant the Client as a part of Services, a limited, non-assignable, non-sublicensable, non-exclusive, non-transferable, revocable limited license and right to access only for Client’s internal purpose the CP’s ICU management platform, RADAR solely for availing the Services as set out in this Agreement. Further, the Client shall comply with usage guidelines that CP may specify from time to time in connection with the use of the platform RADAR. Except for the limited license provided above, nothing contained herein shall be construed as grant of any rights, title or interest in and to the Client in Intellectual Property of CP. All licenses granted by CP shall lapse or be deemed to lapse upon termination or expiration of this Agreement.
  5. The Client shall not use the platform RADAR for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as expressly set forth in this Agreement, the Client shall not at any time, and shall not permit others to: (a) copy, modify, or create derivative works of the platform RADAR, in whole or in part; (b) rent, transfer, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the platform RADAR; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the platform RADAR, in whole or in part; (d) remove any proprietary notices from the platform RADAR; (e) use the platform RADAR in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (f) combine or integrate the platform RADAR with any software, technology, services, or materials not authorized by CP; (g) design or permit the platform RADAR to disable, override, or otherwise interfere with any CP-implemented communications to end users, consent screens, user settings, alerts, warning, or the like; (h) to replicate or attempt to replace the user experience of platform RADAR; (i) publish the background programming of the platform RADAR for others to copy; or (j) use the platform RADAR to develop other platform similar to the platform RADAR. The Client shall immediately notify CP in writing if, to Client’s knowledge, any of Client’s former, current or future directors, officers, employees, subcontractors, agents, consultants or customers, or any third person or party engages in any of the activities described in this clause.
2. CP Retains Title to CP Materials.
  
  As between the Parties, the CP will retain all right, title and interest in and to any data, techniques, trade secrets software, documentation, updates, upgrades, modifications, technical notes, licenses, revisions or other information or materials or other Intellectual Property over the Services created by CP and its platform, RADAR and all data generated by CP through the provision of Services, including all Non-Identifiable Patient Information (“CP Materials”). Intellectual Property of CP shall include CP Materials and Smart-ICU Services. The Client agrees that by virtue of use of the Intellectual Property of CP under the Agreement, the Client shall not, at any time acquire any rights in the Intellectual Property of CP.
3. Subject to the restrictions on the disclosure of Confidential Information set forth in this Agreement, CP (i) will retain all right, title and interest in and to all know-how, Intellectual Property, methodologies, processes, technologies, algorithms, software, development tools or forms, inventions, templates or output used in providing the Services which are based on trade secrets or proprietary information of CP or are otherwise owned or licensed by CP and (ii) will be free to use the ideas, concepts, methodologies, processes and know-how that are used, developed or created in the course of providing the Services and may be retained by CP’s employees (including physicians) in intangible form, all of which constitute substantial rights on the part of CP in the Services performed under this Agreement.
4. Nothing in this Agreement will impair CP’s right to market, perform or otherwise provide the Services to or with respect to any third party. This provision of this clause will survive the expiration or termination of this Agreement for any reason.
5. The Parties agree that notwithstanding the termination or expiration of this Agreement, the Client shall be entitled to retain all Patient Information and CP shall retain the right to use all Non-Identifiable Patient Information, whether developed by CP or otherwise acquired by it during the term of this Agreement. The Client and its doctors will need to comply with existing requirements for patient privacy which includes universal consent for Tele-ICU monitoring, data protection laws and guidelines issued by Government of India or Medical Council of India from time to time including but not limited to Guidelines for Telemedicine issued by Medical Council of India in partnership with Niti Aayog on March 25, 2020.
CONSEQUENCES OF TERMINATION OR EXPIRATION OF THIS AGREEMENT
1. In the event of expiration or termination of this Agreement:
  1. The Client shall forthwith cease to use CP name and logo and shall ensure that it shall not be used in any manner whatsoever.
  2. The Client shall uninstall and return the equipment of CP installed at the Client’s Premises.
  3. The Client shall immediately uninstall and cease using the ICU management platform, RADAR.
  4. The Client shall return all Confidential Information pertaining to and/or owned by CP and provide a certificate evidencing that the Client does not possess any Confidential Information of the CP.
  5. The Client shall forthwith make payments towards all the outstanding dues payable by the Client to CP till the date of termination of this Agreement.

CONFIDENTIALITY
1. Limited Use
  
  Each Party (“Receiving Party”) hereby acknowledges that it may have access to or be provided with certain Confidential Information of the other Party (“Disclosing Party”) during the Term of the Agreement. The Receiving Party shall use all Confidential Information of the other Party, which is obtained by it or is disclosed to it, only for the purposes of this Agreement and shall not disclose such Confidential Information to any third party, without the prior written consent of the Disclosing Party. The Receiving Party shall take all measures to protect the confidentiality of the Confidential Information with the same or greater degree of care as it accords to its own confidential information of the highest category.
2. Limited Disclosure
  
  The Receiving Party agrees that it may disclose Confidential Information to its employees, affiliates, group companies or representatives strictly on a ‘need to know’ basis and only to the extent required under this Agreement. The Receiving Party shall ensure that the personnel, who have access to the Confidential Information in accordance with this clause, are bound by confidentiality obligations similar to the obligations contained under this Agreement.
3. No Transfer of Title
  
  The Receiving Party recognises and acknowledges that all Confidential Information shall remain the exclusive property of the Disclosing Party and the Receiving Party shall not have any rights of ownership of any kind to such Confidential Information, and only has a right to use such Confidential Information as expressly stated in this Agreement.
4. Injunctive Relief and Monetary Damages
  
  The Receiving Party agrees that any unauthorized use or disclosure of Confidential Information by the Receiving Party, or its personnel may cause immediate and irreparable harm to the Disclosing Party for which monetary damages may not constitute an adequate remedy. In such an event, the Receiving Party agrees that the Disclosing Party may seek appropriate injunctive relief against the disclosure of the Confidential Information.
5. Terms and Conditions of this Agreement
  
  The Receiving Party agrees that the existence, terms and conditions of this Agreement will be deemed to be Confidential Information and will not be disclosed by the Receiving Party to any third party without the express written consent of the Disclosing Party. The use of the name of the other Party to mention factually the collaboration is however authorized.
6. Exceptions
  
  The confidentiality obligations specified under this clause shall not be applicable to any information which, to the extent proved by supporting evidence, (a) was known to the Receiving Party before receipt from the Disclosing Party; (b) is or becomes publicly available through no fault of the Receiving Party; (c) is rightfully received by the Receiving Party from a third party who does not have a duty of confidentiality in relation to the information; or (d) is independently developed by the Receiving Party without any reference to the Confidential Information of the Disclosing Party or any breach of this Agreement. The Receiving Party agrees that, where the Receiving Party is directed to disclose the Confidential Information under any law or by a court having jurisdiction, government or quasi-government authority, the Receiving Party shall immediately give notice to Disclosing Party of any such direction, in order to enable the Disclosing Party to use reasonable efforts to limit such disclosure by means of a protective order or a request for confidential treatment of such Confidential Information. Provided further that, if such protective order or other appropriate remedy is denied or otherwise not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that is legally required.
7. Return/Destroy Confidential Information upon Expiration or Termination
  1. Upon expiration or termination of this Agreement, the Receiving Party shall return to the Disclosing Party or destroy all documents, papers, and other matters in the Receiving Party’s or its personnel’s possession or under the Receiving Party’s control that contain or relate to such Confidential Information. Notwithstanding the generality of the foregoing statement, and subject to Clause 5.2 and Clause 5.3, upon the expiration or termination of this Agreement, CP shall retain the right to all CP Materials, and shall be required to only destroy the Patient Information except Non-Identifiable Patient Information received from the Client during the Term of this Agreement.
  2. Upon expiration or termination of this Agreement, the Client and CP shall return to the other Party any and all Proprietary/Confidential Information (including any copies or reproductions thereof) in their possession or control and shall cease to use any such Confidential Information.
8. Unauthorized Disclosure
  
  In the event of any unauthorized possession, use, knowledge, disclosure or attempt thereof with respect to any Confidential Information, or loss of, or inability to account for such Confidential Information, the Receiving Party shall promptly notify the Disclosing Party of the same and use all reasonable efforts to prevent a recurrence of such disclosure.
9. Survival of Confidentiality Obligations
  
  This clause shall survive the expiry or termination of this Agreement.
INDEMNITY AND LIMITATION OF LIABILITY
1. Subject to the other provisions of this Clause 8, each Party (“Indemnifying Party”) shall defend, protect, indemnify and hold the other Party and their respective affiliates, employees, officers, agents, successors and representatives of the other Party (“Indemnified Parties”) harmless from and against any and all against any direct and actual losses, damages, actions, claims (including any Third Party Claims), proceedings, demands, suits, penalties, interest, consequences, judicial pronouncements, orders/decrees relating to temporary and permanent injunctions, contempt of court proceedings, and other charges and expenses, including reasonable attorney fees (collectively, the “Indemnified Liabilities”), incurred by the Indemnified Parties as a result of, arising out of or relating to: (i) any failure by the Indemnifying Party to comply with guidelines or applicable law including but not limited to the Information Technology Act, 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 and/or the Guidelines for Telemedicine issued by Medical Council of India in partnership with Niti Aayog on March 25, 2020. ; (ii) any fraudulent, unlawful, grossly negligent act or omission committed by the Indemnifying Party; (iii) any breach by the Indemnifying Party of the representations and warranties of this Agreement; or (iv) any breach by the Indemnifying Party of the obligations or covenants under this Agreement. Notwithstanding the above, CP shall not be liable, and neither the Client nor the patient will be entitled to a refund from CP or make claims against CP, for services provided or not provided by CP as a result of, arising out of or relating to (a) any breach by the Client of its obligations under this Agreement ; and/or (b) any deficiency in Services directly or indirectly attributable to the Client; and/or (c) service outages, including, but not limited to those caused by or related to maintenance issues, servers, the technology that underlies the CP Smart ICU Service, failures of CP’s direct or indirect service (including, but not limited to, telecommunications, hosting and power), computer viruses, natural disasters or other destruction or damage to CP facilities, acts of nature, war, civil disturbance, court order, legislative or regulatory action, catastrophic weather condition, third party interference or other causes beyond CP’s reasonable control.
2. In case of any claim brought by a third party in relation to the Indemnified Liabilities (each, a “Third Party Claim”), after the Indemnifying Party has provided each Indemnified Party with a written notice of its acceptance of liability under this clause, as between such Indemnified Party, on the one hand, and the Indemnifying Party, on the other hand, the Indemnifying Party may elect to assume the investigation, defense, settlement or other disposition of, with the aforesaid cooperation in such manner as the Indemnifying Party may in their reasonable discretion deem appropriate; provided, that (i) the counsel retained by the Indemnifying Party is reasonably satisfactory to the Indemnified Party, (ii) the Indemnifying Party will not consent to any settlement or entry of judgment imposing any obligations on any Indemnified Party other than financial obligations for which such Indemnified Party will be indemnified hereunder, unless such Indemnified Party has consented in writing to such obligation; and (iii) the Indemnifying Party will not consent to any settlement or entry of judgment unless, in connection therewith, the Indemnifying Party obtains a full and unconditional release of the Indemnified Party from all liability with respect to such suit, action, investigation, claim or proceeding and provided, further, that the Indemnifying Party shall not be entitled to assume the investigation, defense, settlement or other disposition of any Third Party Claim and shall pay the fees and expenses of counsel retained by the Indemnified Party with respect to such Third Party Claim if (a) such Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation; or (b) the Indemnified Party reasonably believes an adverse determination with respect to the Third Party Claim would be detrimental to or injure the Indemnified Party’s reputation or future business prospects. Notwithstanding the election by the Indemnifying Party to assume the defense or investigation of such Third Party Claim, each Indemnified Party shall have the right to employ separate counsel and to participate in the defense or investigation of such Third Party Claim; provided, that in no event shall the Indemnifying Party be required to pay reasonable fees and expenses under the preceding sentence for more than one firm of attorneys for each Indemnified Party in any jurisdiction in any one legal action or group of related legal actions. Provided that, CP shall not be liable to defend or make payment towards any claims from patients of the Client or any Third Party Claim in relation to the Services provided hereunder to the Client.
3. The indemnification rights of the Indemnified Party under this Agreement are independent of, and in addition to, such other rights and remedies as the Indemnified Party may have under this Agreement or at law or in equity or otherwise, including the right to seek specific performance, rescission, restitution or other injunctive relief, none of which rights or remedies shall be affected or diminished thereby. Provided that the indemnity shall be sole monetary remedy available to the Indemnified Party.
4. Neither Party shall be liable to the other Party or any third party for any indirect, incidental, special or consequential losses arising out of or in connection with this Agreement. Notwithstanding anything contained in this Agreement, CP’s liability under this Agreement shall in no event exceed the consideration paid by the Client to CP in the 3 (three) months immediately preceding the date on which the claim arises.
DEFINITIONS
1. Assignment: Except with the prior written consent of the other Party, neither the benefit nor any obligation or liability of this Agreement shall be assignable by either Party.
2. Governing Law and Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of India. Subject to clause 9.3 below, the Parties submit any dispute to the exclusive jurisdiction of the courts in Bangalore, India.
3. Arbitration: Every dispute which may at any time arise between the Parties hereto arising out of or in respect of this Agreement shall be referred to the arbitration of a sole arbitrator to be mutually appointed by both the Parties. The seat, place and venue of the arbitration shall be at Bangalore and shall be conducted in the English language, and in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and the rules made thereunder. The decision of the arbitrator shall be final and binding on the Parties.
4. Relationship: Neither Party shall, for any purpose, be deemed to be an agent of the other Party. The relationship between the Parties shall only be that of independent contractors. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other Party, whether express or implied, or to bind the other Party in any respect whatsoever. Each Party shall be responsible for their respective Personnel engaged by them. Nothing in this Agreement confers any right upon one Party to use the other Party’s trademarks, trade names, service marks, brand names or other intellectual property rights.
5. Entire Agreement: The Agreement shall constitute the entire agreement between the Parties hereto relating to the subject matter thereof, and there are no oral statements, representations, warranties, undertakings or agreements between the Parties except as provided in the Agreement. To the extent any provision in an Order clearly conflicts with a provision of this Master Agreement or a provision of an earlier Order, the provision in the new Order will be binding and the conflicting provision in this Master Agreement or in the earlier Order will be deemed modified solely to the extent reasonably necessary to eliminate the conflict and solely with respect to the new Order (unless expressly intended to permanently amend the Agreement.
6. Amendment: Cloudphysician may modify this Master Agreement from time to time, and any such changes will (i) be reflected on the website, and (ii) be effective immediately upon the changes being reflected on the website. Client agrees to be bound to any such changes or modifications and understands and accepts the importance of regularly reviewing this Master Agreement. If the Client continues to use the Services offered by Cloudphysician following any amendment or modification to this Master Agreement, it shall constitute Client’s acceptance of such modifications.
7. Headings: The headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement
8. Notices: Any notice or other communication to be given hereunder will be in writing and given by facsimile, post-paid registered or certified mail return receipt requested or electronic mail (with a copy concurrently mailed as set forth above). The date of receipt shall be deemed the date on which such notice is given. The point of communication between the Parties under this Agreement shall be detailed in the Order.
9. Waiver: Either Party may exercise a right, power or remedy at its discretion and separately or concurrently with another right, power or remedy. No failure or delay on the part of any Party hereto exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other rights, powers or privileges by such Party.
10. Non-Solicitation: The Client agrees that during the Term and for 1 (one) year thereafter, the Client will not (i) directly or indirectly encourage or solicit any medical practitioner, nurses, employee or consultant of CP to leave CP for any reason; (ii) assist any other person or organization in competing or in preparing to solicit any employees or consultant.
11. Severability: Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
12. Assumption of Responsibility: Each Party hereto at all times assume all responsibility for the acts and omissions of its personnel and ensure that their respective personnel comply with all applicable terms of this Agreement.

The Parties have caused this Agreement to be executed by their respective duly authorized representatives on the Effective Date.

ANNEXURE A

BASIC FACILITIES

Hardware specifications of the Basic Facilities to be provided by the Hospital in the ICU at the Premises (All costs of hardware below and bandwidth/networking installed at the ICU will be borne by the Hospital).

Cloudphysician can assist the Client in the acquisition of the required hardware that is not already available at the Hospital. Maintenance, upkeep and all associated expenses associated with non Cloudphysician software and hardware related to tele-ICU including internet connectivity and backup power, located at the Client’s premises, is solely the responsibility of the Client.

The list of hardware required includes:

Technology/Hardware
Internet Connection	Dedicated dual internet fiber-based link with static public IP block of /30. Bandwidth capacity of the link to be based on the cameras required at the hospital. Recommendations for internet link, in order of preferences: Two dedicated internet leased lines One leased line with broadband link (unlimited data volume) or equivalent as a backup Two dedicated broadband links (unlimited data volume)
Laptop/Desktop (1 per nursing station)	8 GB RAM i5 processor (9th/10th generation) or above SSD storage preferred Attached webcam with microphone Headset with mic 2 Channel stereo speakers (L/R)
Power Supply	24/7 power with UPS for routers, desktop, and cameras
Wifi Routers	One per nurse station
Printer and Scanner	1 printer and scanner per unit
Phone Lines	Dedicated phone lines and handsets present in the ICU which staff can use and move within the ICU
Access to Medical Records	Access to medical records including LIS, PACS, and EMR if applicable

Personnel Requirements
Intubation Specialist	One person who can intubate on call per shift
IT Coordinator	On call 24/7
Tele-ICU Coordinator	One senior nurse PER SHIFT must be the Tele-ICU coordinator

Dedicated software will be installed by Cloudphysician.

Please note that CP will not be liable to the Client or Patient or any third party for any default, liability, loss, claims or damages which is caused due to specification, or any equipment provided or used by the Client. The specification requirements, list of hardware and personnel requirements as provided under this Annexure A is subject to change and in case of any changes, CP will communicate the same to the Client, which the Client needs to adhere to for receiving smooth and efficient services from CP.

ANNEXURE B

SERVICES

Cloudphysician shall provide the following Services to Client in accordance with the terms of the Agreement:

SERVICES

24/7 Intensive Care Unit (ICU) telemonitoring by our multidisciplinary team of Critical Care Nurses, Physicians and Paramedical staff based at our Care Center on remote basis.

Real-time patient data review, medical treatment recommendations, response to medical emergencies for all ICU patients, assessment and recommendations for new patient admissions at the Premises remotely.

Detailed admission review with an admission note and daily tele-rounding and standard of care ICU protocol deployment as per international society guidelines.

Monitoring vitals, laboratory results, imaging for early detection and treatment protocols.

Access to RADAR web application for authorized personnel.

RADAR mobile application for bedside team, where all data can be viewed and for real time communication with Cloudphysician.

Advance life support services which mean and include [•] ("Advance Life Support”) Cardiopulmonary resuscitation support service which can be provided by way of telemonitoring by CP's Critical Care Nurses, Physicians and Paramedical staff based at its Care Center (“Basic Life Support”).

24/7 ICU tele-monitoring by CP’s team of critical care nurses and Physicians based at CP’s premises; real time Patient data review, medical treatment recommendations to the Client and their representatives, ICU management services through the platform, RADAR, response to medical emergencies for all Patients, assessment and recommendations for new Patient admissions; daily tele-rounding and standard of care ICU protocol deployment as per international society guidelines and monitoring vitals, laboratory results, imaging for early detection and treatment protocols, which shall include the software, processes necessary to provide such Smart ICU Services (“Smart-ICU Services”).

Critical care services provided by CP to the medical practitioner or health practitioner located at Client’s Premises in relation to the Patients admitted at emergency department, ICU, high dependency unit and wards of the Basic Facilities (“Critical Care Services”).

It is being clarified that the abovementioned Services shall be provided by CP to the Client only on remote basis and in no event CP shall provide any in-person diagnosis, consultation or recommendations to the patients admitted at the premises of the Client.

SET UP

Cloudphysician will install high-definition PTZ cameras, equipment and software at hospital ICU. It will also be responsible for the licenses associated with these devices and software for the duration of the contract. The high-definition PTZ cameras and other equipment installed by Cloudphysician on the site are the property of Cloudphysician and Cloudphysician is responsible for the replacement, maintenance and repair of the cameras and the equipment. In the case of theft or damage on site, the hospital will be responsible for the replacement cost of any of the devices. Should the contract with the client hospital expire or cease to exist, Cloudphysician will take possession of the cameras, equipment and uninstall its software from any devices that were used.

POST INSTALLATION

The Cloudphysician team will provide training to the bedside nurses and doctors. This will include both clinical training and operational training:

how to use the software and any routine updates in the software (to the exclusion of any major update or upgradation of the software containing any additional features to RADAR)

workflow and coordination with the Care Center

Cloudphysician will discuss the workflow and coordination with the bedside doctors who will be admitting patients to the ICU and the consultants who will be seeing these patients in the ICU.

ANNEXURE C

“Consent for Treatment”

I hereby voluntarily provide my express consent that XXXXX Hospital doctor(s) and such associates, residents, technical assistants and other health care providers (including any registered medical practitioners through tele-medicine) as they may deem, can participate in my medical care through the use of telemedicine. I acknowledge and understand that the health care service providers participating in my medical care:

may practice in and from a different location than where I’m present for medical care,

may not have the opportunity to perform an in-person physical examination, and

rely on information provided by me.

I consent that the health care service provider may advise or recommend medicine for me directly to Hospital doctor(s) or registered medical practitioners. I acknowledge that the health care service provider’s advice, recommendations, and/or decision may be based on factors not within their control, such as incomplete or inaccurate data provided by me or distortions of diagnostic images or specimens that may result from electronic transmissions. I understand that the practice of medicine is not an exact science and that no warranties or guarantees are made to me by the health care service provider as to the result or cure or the outcome of the care/treatment/procedure that I may receive.

In the event the telemedicine session is interrupted due to some unexpected including but not limited to technological problem or equipment failure, power failure, alternative means of communication may be implemented, or an in-person medical evaluation may be necessary. I further agree that the health care service provider associated with my medical care will not be held responsible, even in the event of death while receiving tele-medicine services.

Release of Information - To facilitate the provision of care and/or treatment through telemedicine, I voluntarily request, consent and authorize the disclosure of all and any part of my information like age, sex, previous and existing health conditions, symptoms, past medical history, including medical record (including oral information). I further voluntarily request, consent and authorize health care providers to analyze/process my medical data and share such data, report or result with the Hospital. I agree to provide correct and accurate information. Although precautions are taken to protect the confidentiality of this information by preventing unauthorized review, I understand that electronic transmission of data, video images, and audio is new and developing technology and that confidentiality may be compromised by failures of security safeguards or illegal and improper tampering.

I understand and acknowledge that my information including the medical data gathered during my treatment may be used for diagnosis, treatment, follow-up, internal benchmarking, quality control purposes, learning, research, education or any other purpose without violating privacy and confidentiality.

The Privacy Policy of tele-medicine service provider can be accessed here: https://www.cloudphysician.net/privacy-policy/

This Master service agreement was last updated on 19/02/2025.

DEFINITIONS

“Agreement” shall mean and include this Master Agreement, the referenced or attached Annexures and any accompanying Order or future Order that may be executed by the Parties;

“Basic Facilities” shall mean the list of facilities at the Hospital Premises as set out in Annexure A of this Agreement;

“Effective Date” means the effective date as mentioned in the relevant Order.

“ICU” shall mean the Intensive Care Unit at the Client’s Premises;

"Physician” means the registered medical practitioners virtually provided and/or deputed by CP for providing Services under this Agreement;

“Non-Identifiable Patient Information” shall mean all Patient Information remaining after the removal of all data that may, whether directly or indirectly in conjunction with any other data, be used to identify the data subject or Patient;

“Patients” shall mean the patients of the Client admitted to the ICU and any other patient at the Premises requiring the Critical Care Services;

“Premises” shall mean the hospital premises of the Client’s Hospital, as communicated by the Client to CP in writing;

SERVICES THAT CLOUDPHYSICIAN WILL PROVIDE:

The Client appoints CP and CP accepts the appointment as service provider with effect from the Effective Date for providing the Services (more particularly set out in Annexure B attached herein) to the Client, in consideration of the fees as set out in the Order and under terms of this Agreement.

CONSIDERATION:

OBLIGATION OF THE CLIENT

Collection

Client shall be responsible for collecting and inputting the Patient Information in the RADAR platform. CP shall have the right to collect in its system, store and retain data of the Patients while providing the Services to the Client.

While collecting the data or information of the Patients, the Client is obligated to comply with the Information Technology Act, 2000 and the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.

The Client shall appoint a contact person, who will be Client’s representative and its primary contact for purposes of this Agreement.

A failure by the Client to provide CP within a reasonable time with any information or items which are reasonably requested by CP for the performance of the Services; or

Any material or any materially inaccurate, incorrect or misleading information supplied by the Client to CP and upon which CP relies in agreeing to the functional/technical specification; or

Failure of Client to maintain the Basic Facilities in working condition at the Premises; or

For any error of judgment or deficiency in services on the part of the medical practitioners or nurses of the Client causing losses to the Patients.

CP is required to disclose any outcome, results of the medical treatment or medical record of the patient, to comply with applicable laws or court orders, decrees or proceedings or governmental, or is required by rules or regulations.

If the patient directly requests CP to share its personal information and/ or medical data, provided that CP shall provide reasonable intimation to the Client, regarding such request.

The Client shall be responsible for the set-up and maintenance and upkeep of the Basic Facilities and such other medical equipment, devices and machines required at Hospital and ICU facilities.

The Client shall ensure that its medical practitioners, nurses and health practitioners are well trained and qualified and authorized as per the applicable laws.

The Client shall procure, maintain, upkeep and incur all associated expenses associated with additional software and hardware required for using the platform RADAR including internet connectivity and backup power, located at the Client’s premises.

The Client shall be under an obligation at all times to intimate the Patient about the details of CP’s Physicians who will provide consultation, prescription or telemedicine services to the Patients in compliance with the provisions of applicable laws.

It is hereby agreed and acknowledged by the Client that CP shall not be providing any in-person consultation or any medical advice or any medical prescription to Patients directly.

INTELLECTUAL PROPERTY

Restricted Use:

Notwithstanding Clause 5.1 (a), the Client shall provide a suitable place of agreeable dimensions in its premises for CP and its employees, agent, consultant to carry out its branding activities.

The parties hereby agree that CP is permitted to use the Client’s or its affiliates’ name or logo in any label, press release, or advertising, or for any other promotional purpose.

CP Retains Title to CP Materials.

Nothing in this Agreement will impair CP’s right to market, perform or otherwise provide the Services to or with respect to any third party. This provision of this clause will survive the expiration or termination of this Agreement for any reason.

CONSEQUENCES OF TERMINATION OR EXPIRATION OF THIS AGREEMENT

In the event of expiration or termination of this Agreement:

The Client shall forthwith cease to use CP name and logo and shall ensure that it shall not be used in any manner whatsoever.

The Client shall uninstall and return the equipment of CP installed at the Client’s Premises.

The Client shall immediately uninstall and cease using the ICU management platform, RADAR.

The Client shall return all Confidential Information pertaining to and/or owned by CP and provide a certificate evidencing that the Client does not possess any Confidential Information of the CP.

The Client shall forthwith make payments towards all the outstanding dues payable by the Client to CP till the date of termination of this Agreement.

CONFIDENTIALITY

Return/Destroy Confidential Information upon Expiration or Termination

Upon expiration or termination of this Agreement, the Client and CP shall return to the other Party any and all Proprietary/Confidential Information (including any copies or reproductions thereof) in their possession or control and shall cease to use any such Confidential Information.

Survival of Confidentiality ObligationsThis clause shall survive the expiry or termination of this Agreement.

INDEMNITY AND LIMITATION OF LIABILITY

DEFINITIONS

Assignment: Except with the prior written consent of the other Party, neither the benefit nor any obligation or liability of this Agreement shall be assignable by either Party.

Governing Law and Jurisdiction: This Agreement shall be governed and construed in accordance with the laws of India. Subject to clause 9.3 below, the Parties submit any dispute to the exclusive jurisdiction of the courts in Bangalore, India.

Headings: The headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement

Assumption of Responsibility: Each Party hereto at all times assume all responsibility for the acts and omissions of its personnel and ensure that their respective personnel comply with all applicable terms of this Agreement.

Survival of Confidentiality Obligations

This clause shall survive the expiry or termination of this Agreement.