Terms and Conditions of Use

These Terms and Conditions of Use (the “Terms of Use”) apply to the use of “SHINE OS+”, an online (web and mobile application) electronic medical record, reminder, referral and reporting system. It is important that you, the Subscriber, take the time to read them carefully. The Terms of Use, together with your use of the System, form a legally binding agreement between you, Smart Communications, Inc. (“SMART”), and the Ateneo Java Wireless Competency Center (“AJWCC”) in relation to your use of the System. BY COMPLETING AND SIGNING THE SERVICE ACTIVATION FORM (SAF), YOU SIGNIFY YOUR AGREEMENT TO THESE TERMS OF USE; IF YOU DO NOT AGREE TO ANY OF THESE TERMS, PLEASE DO NOT CLICK “REGISTER” OR USE THE SYSTEM.

 

SMART and AJWCC reserve the right, at their sole discretion, to change, modify, add or remove portions of these Terms of Use, at any time. Such modified Terms of Use shall be effective when posted at the SHINE OS+ Website. It is your responsibility to check these Terms of Use periodically for changes. Your continued use of the System following the posting of changes will mean that you accept and agree to the changes. As long as you, the Subscriber, comply with these Terms of Use, SMART and AJWCC grant you a personal, non-exclusive, non-transferable, limited privilege to enter and use the System.

 

A. DEFINITION OF TERMS

The following words will have these meaning in these Terms and Conditions unless the context otherwise specifies.

 

  1. SYSTEM – This term shall be used herein to collectively describe SHINE OS+.
  2. SERVICE/S – This term shall be used herein to collectively describe SHINE OS+ electronic medical records (EMR) system as the Service.
  3. SUBSCRIBER – This term shall be used herein to collectively refer to the healthcare facility/institution/organization you represent, as a Subscriber availing of SHINE OS+ EMR system as a Service.
  4. WEBSITE – This term shall be used herein to refer to the SHINE OS+ Website located at http://www.shine.ph/emr/login, and all associated sites linked to SHINE OS+ through shine.ph, including all content and functionality available.
  5. HEALTH RECORDS – This term shall be used herein to refer to health records of patients, consultation records, referral records, and reports that you create on the System.
  6. CONTENT – The term shall be used herein to collectively describe all data, information, messages, statements and all forms of content that pass through AJWCC by virtue of the Services availed of by you, as a Subscriber.

 

B. TERMS AND CONDITION

The following Terms and Conditions shall govern the use of the Service by the Subscriber.

 

  1. SUBSCRIBER

The Subscriber (represented by the undersigned who has been duly designated and authorized by the Subscriber) has read the Terms and Conditions of this Service (also referred to herein as “Agreement”).  After having read the contents hereof, the Subscriber agrees to the supply of the Service under the conditions stipulated herein.

 

  1. VERIFICATION AND PERMITTED USE OF THE SYSTEM

The Subscriber agrees that their use of the System is subject to verification by other users of the System or SMART or AJWCC of the Subscriber’s identity, credentials, and qualifications as a healthcare professional.  The Subscriber agrees that SMART and/or AJWCC may use and disclose the Subscriber’s personal information for such purposes including, but not limited to, making inquiry of third parties concerning the Subscriber’s identity and professional and practice credentials.  The Subscriber authorizes such third parties to disclose to SMART and AJWCC such information as we may request for such purposes, and the Subscriber agrees to hold them and both SMART and AJWCC harmless from any claim or liability arising from the request for or disclosure of such information.  The Subscriber agrees that SMART and/or AJWCC may terminate the Subscriber’s access to or use of the System at any time if SMART and/or AJWCC is unable at any time to determine or verify the Subscriber’s qualifications or credentials.

 

The purpose of the System is to allow the Subscriber to update profile, create, update, generate and share Health Records and to facilitate the sharing of individuals’ health information among users of the System.  The Subscriber may make the Health Record accessible to other users through the System for these purposes.

 

Subject to the terms of this Agreement, SMART and AJWCC authorize the Subscriber to access the System and to use the Services for recording the Subscriber’s patient’s health information and consultations, sending of email and SMS notifications and reminders to the Subscriber’s patients, completing and sending referral forms and case records to other users of the System, generating of reports, and for other purposes expressly authorized in SMART and AJWCC’s policies and procedures; provided that the Subscriber may access only information pertaining to individuals with whom the Subscriber has a treatment relationship or for whom a provider who has a treatment relationship with has requested a professional consultation from the Subscriber, or from whom the Subscriber has received authorization to use their health information.

 

The Subscriber will obtain the necessary consents, authorizations or releases from individuals required for making their health information available through the System.  Further, the Subscriber will not place in the System any information that the Subscriber knows or have reason to believe is false or materially inaccurate.  Under no circumstances shall SMART and/or AJWCC be liable for third party claims for the Subscriber’s violation of the foregoing, nor shall SMART and/or AJWCC be liable for any direct, incidental, special, consequential, indirect or punitive damages that result from the same.

 

With the Subscriber’s consent, SMART and AJWCC will make the Health Record for any patient the Subscriber designates accessible to any other user of the System whom the Subscriber approves.  The Subscriber may revoke their consent with respect to any other user at any time.  While their consent is in effect, an approved user may view and edit the Health Record.  If the Subscriber revokes their consent, the approved user will continue to have the ability to view the Health Record in the form in which it existed at the time the Subscriber revoked their consent, but will not be able to view changes made to the same thereafter, and will not be able to edit the same. The same rules apply to a Subscriber’s use of another user’s record who approves access for that Subscriber. The Subscriber and their Workforce are fully responsible for the information in any Health Record that they share. The Subscriber and/or their Workforce should not share patient information that violates any state laws, such as a positive HIV test result. In the future, SMART and AJWCC may allow the Subscriber to share only subsections of a Health Record or may allow a referee to share the Health Record with others, in either case, SMART and AJWCC will obtain the Subscriber’s consent before allowing the use of such features. In any event, but especially in cases of potential fraud, misuse and/or abuse of the System, SMART and AJWCC reserve the right, in their sole judgment, to revoke, remove, cancel or deny continued access to any Health Record or any share request to such Health Record.

 

The Subscriber will be solely responsible for the use of the System by them and their authorized representatives, and shall indemnify SMART and/or AJWCC and hold SMART and/or AJWCC harmless from any claim, cost or liability arising from such use, including reasonable attorneys’ fees.

 

The Subscriber will comply with all applicable laws, including laws relating to maintenance of privacy, security, and confidentiality of patient and other health information that they provide in the Health Records.

 

The Subscriber may permit access to the Health Record by health care providers and their business associates for treatment through the Health Record Sharing and/or Referral feature of the System.  The Subscriber’s consent will be obtained before the Health Record is made available to other providers. The Subscriber acknowledge that once they have granted access rights to another provider, SMART and AJWCC have no control over the uses and disclosures that the provider makes of the Health Record.

 

  1. RESTRICTIONS ON THE USE OF THE WEBSITE AND/OR SYSTEM

The Subscriber agrees not to alter or modify any part of the Website and/or System.

 

The Subscriber agrees that they will not incorporate any word in their name, Message ID or custom user title that is defamatory, obscene or profane, or which violates any trademark, System mark, or other proprietary/intellectual property rights of any third party, including, without limitation, that of SMART and AJWCC.

 

The Subscriber agrees not to use the Website and/or System for any commercial use, without the prior written authorization of SMART and AJWCC. Prohibited commercial uses include, but are not limited to, the sale of access to the Website or System and the use of the Website or System for the primary purpose of gaining advertising or subscription revenue.

 

The Subscriber agrees not to use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Website or System or in any way reproduce or circumvent the navigational structure or presentation of the Website or System, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Website. SMART and AJWCC reserve the right to bar any such activity.

 

The Subscriber agrees not to attempt to gain unauthorized access to any portion or feature of the Website and/or System, or any other systems or networks connected to the System or to any SMART or AJWCC server by hacking, password “mining” or any other legitimate or illegitimate means.

 

The Subscriber agrees not to probe, scan or test the vulnerability of the Website or any network connected to the Website and/or System, nor breach the security or authentication measures on the Website, the System or any network connected to the System. The Subscriber may not reverse look-up, trace or seek to trace any information on any other user of or visitor to the Website to its source, or exploit the Website or System or information made available or offered by or through the Website, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than your own information, as provided for by the Website.

 

The Subscriber agrees that they will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Website, the System, or any systems or networks connected to the System, to SMART, or to AJWCC.

 

The Subscriber agrees not to use any device or routine to interfere or attempt to interfere with the proper working of the System or any transaction being conducted on the Website, or with any other person’s use of the Website. The Subscriber agrees that they will not engage in any activity that interferes with or disrupts the System (or the servers and networks which are connected to the System).

 

The Subscriber agrees not to forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal they send to SMART and/or AJWCC on or through the Website or the System offered on or through the Website. The Subscriber may not pretend that they are, or that they represent, someone else, or impersonate any other individual or entity.

 

The Subscriber agrees not to use the Website and/or System for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of SMART, AJWCC or others.

 

  1. SUBCRIBER’S HEALTH RECORD/S AND CONDUCT

The Subscribers agrees that they are solely responsible for (and that SMART and AJWCC have no responsibility to the Subscriber or to any third party for) any Health Record that the Subscriber creates, transmits or displays while using the System and for the consequences of their actions (including any loss or damage which SMART and/or AJWCC may suffer) by doing so.

 

In connection with the Subscriber’s Health Records, the Subscriber affirms, represents, and/or warrants that: the Subscriber owns or has the necessary licenses, rights, consents, and permissions to use and authorize SMART and AJWCC to use all patent, trademark, copyright or other proprietary rights in and to any and all Health Records to enable inclusion and use of the Health Records in the manner contemplated by the Website and/or System and these Terms of Use.

 

SMART and AJWCC acknowledge and agree that they obtain no right, title or interest from the Subscriber under these Terms of Use in or to any content that the Subscriber submits, posts, transmits or displays on, or through, the System, including any intellectual property rights which subsist in that content. The Subscriber agrees that they are responsible for protecting and enforcing those rights and that SMART and AJWCC has no obligation to do so on their behalf.

 

The Subscriber agrees not to provide any Health Record that infringes any third-party intellectual property or publicity/privacy rights; is knowingly false, and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, threatening, invasive of a person’s privacy, or otherwise violative of any law or regulation.

 

The Subscriber agrees to ensure that the computer/s they use to access the System:

  • do not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
  • are regularly updated with software updates, patches, or service packs;
  • are installed with an antivirus software which is always active and is regularly updated with virus updates;
  • do not promote piracy.

 

SMART and AJWCC do not endorse any Health Record or any opinion, recommendation, or advice expressed therein, and SMART AND AJWCC expressly disclaim any and all liability in connection with the Health Records. SMART and AJWCC do not permit copyright infringing activities and infringement of intellectual property rights on its Website, and SMART and AJWCC will remove all Health Records if properly notified that such Health Records infringe on another’s intellectual property rights or violates the Terms of Use. SMART and AJWCC reserve the right to remove Health Records without prior notice.

 

SMART and AJWCC are not responsible for any and all Health Records and for any inaccuracies in these Health Records. Therefore, the Subscriber bears the risk associated with, the accuracy, completeness or usefulness of the Health Records.

 

The Subscriber will be solely responsible for the professional and technical services they provide.

 

SMART and AJWCC make no representations concerning the completeness, accuracy or utility of any information in the System, or concerning the qualifications or competence of individuals who placed it there.  SMART and AJWCC have no liability for the consequences to the Subscriber or their patients of their use of the System.

 

Please keep in mind that whenever the Subscriber voluntarily discloses personal information on this Website and/or System, for example on profile, through e-mail – that information can be collected and used by others. In short, by posting personal information on the Website and/or System that is publicly accessible, the Subscriber may receive unsolicited messages from other parties in return.

 

The Subscriber acknowledges that in granting access to the System, SMART and AJWCC will rely on the assurances of the recipients of the information as to (i) their identity and credentials, (ii) the purposes for which they are accessing the System, and (iii) the nature and extent of the information to which they will have access.  The Subscriber acknowledges that, while the System will contain certain technical safeguards against misuse of the System, it will rely to a substantial extent on the representations and undertakings of users.  The Subscriber agrees that SMART and AJWCC will not be responsible for any unlawful access to or use of the Health Records by any user resulting from the user’s misrepresentation to SMART and AJWCC, or breach of the user’s Terms of Use or SMART and AJWCC’s policies and procedures.

 

  1. ACCOUNTS, PASSWORDS AND SECURITY

In order to access the System, the Subscriber may be required to provide information about themselves (such as identification or contact details including setting up a System ID and password) as part of the registration process for the System, or as part of their continued use of the System. The Subscriber agrees that any registration information they give to SMART and AJWCC will always be accurate, correct and up to date.

 

The Subscriber is entirely responsible for maintaining the confidentiality of their account information, including their password, and for any and all activity that occurs under their account. The Subscriber will maintain appropriate security with regard to all personnel, systems, and administrative processes used by them or their authorized representatives to transmit, store and process Health Records through the use of the System.

 

The Subscriber agrees to notify SMART and AJWCC immediately of any unauthorized use of their account or password, or any other breach of security. However, the Subscriber may be held liable for losses incurred and damages suffered by SMART, AJWCC and/or any other user of or visitor to the Website and/or user of the System due to someone else using their System ID, password or account.

 

The Subscriber may not use anyone else’s System ID, password or account at any time without permission. SMART and/or AJWCC cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.

 

Accordingly, the Subscriber agrees that they will be solely responsible to SMART and AJWCC for all activities that occur under their account. If the Subscriber becomes aware of any unauthorized use of their password or of their account, the Subscriber agrees to notify SMART and AJWCC immediately at admin@shine.ph.

 

Although SMART and/or AJWCC will not be liable for their losses caused by any unauthorized use of their account, the Subscriber may be liable for the losses of SMART, AJWCC or others due to such unauthorized use.

  1. PROPRIETARY RIGHTS

SMART and AJWCC own and retain all proprietary rights in the Website and System (except Health Records which the Subscriber creates, updates, generates and shares in the System). The Website and System contain copyrighted material, including links and compilations of individual data, trademarks, and other proprietary information owned, controlled or licensed to SMART and AJWCC, and is protected by copyright, patent and trademark laws, and various other intellectual property rights and unfair competition laws. The Subscriber further acknowledges that the System may contain information which is designated confidential by SMART and AJWCC and that the Subscriber shall not disclose such information without SMART and AJWCC’s prior written consent.

 

Content on the Website and/or System is provided to the Subscriber AS IS for their information and/or professional use only. Except as expressly provided in these Terms of Use, no part of the Website and/or System may be copied, reproduced, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted or distributed in any way (including “mirroring”) to any other computer, server, website or other medium for publication or distribution or for any commercial enterprise, without SMART and/or AJWCC’s express prior written consent. Unless the Subscriber has agreed otherwise in writing with SMART and AJWCC, nothing in the Terms of Use gives the Subscriber a right to use any of SMART and AJWCC’s trade names, trademarks, System marks, logos, domain names, and other distinctive brand features.

 

  1. SUBSCRIBER’S RELATIONSHIP WITH SMART AND AJWCC

There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between SMART, AJWCC and any user of the Website and/or System, unless otherwise provided in a written agreement between SMART, AJWCC and such user.

 

  1. LICENSE FROM SMART AND AJWCC

SMART and AJWCC give the Subscriber a personal, worldwide, limited, non-assignable and non-exclusive license to use the System. This license is for the sole purpose of enabling the Subscriber to use the System in the manner permitted by the Terms of Use.

 

The Subscriber may not (and the Subscriber may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the System or any part thereof, unless this is expressly permitted or required by law, or unless the Subscriber have been specifically told that they may do so by SMART and AJWCC, in writing.

 

Unless SMART and AJWCC have given the Subscriber specific written permission to do so, the Subscriber may not assign (or grant a sub-license of) their rights to use the System, grant a security interest in or over their rights to use the System, or otherwise transfer or make available any part of their rights to use the System.

 

  1. PROVISION OF THE SYSTEM BY SMART AND AJWCC

SMART and AJWCC are constantly innovating in order to provide the best possible experience for its users. The Subscriber acknowledges and agrees that the form and nature of the System which SMART and AJWCC provide may change from time to time without prior notice to the Subscriber.

 

As part of this continuing innovation, the Subscriber acknowledges and agrees that SMART and AJWCC may stop (permanently or temporarily) providing the System (or any features within the System) to the Subscriber or to users generally at SMART and AJWCC’s sole discretion. The Subscriber may stop using the System at any time. The Subscriber does not need to specifically inform SMART and/or AJWCC when they stop using the System.

 

The Subscriber acknowledges and agrees that if SMART and AJWCC disable access to their account, they may be prevented from accessing the System, their account details or any files or other content which is contained in their account.

 

The Subscriber acknowledges and agrees that while SMART and AJWCC may not currently have set a fixed upper limit on the number of transmissions the Subscriber may send or receive through the System or on the amount of storage space used for the provision of any System, such fixed upper limits may be set by SMART and AJWCC at any time, at SMART and AJWCC’s discretion.

 

  1. SYSTEM UPDATES

The System which the Subscriber uses may automatically download and install updates from time to time from the Website. These updates are designed to improve, enhance and further develop the System and may take the form of bug fixes, enhanced functions, new modules, additional security features and completely new versions. The Subscriber permits SMART and AJWCC to deliver and install these as part of their use of the System.

 

  1. OTHER USES OF INFORMATION

SMART and/or AJWCC may use the Subscriber’s server information, IP address, and browser-type related information only for the general administration of our Website and/or System.

 

Once we obtain the Subscriber’s information, it is added to a database used only by SMART and AJWCC. SMART and AJWCC may disclose the Subscriber’s information if SMART and/or AJWCC is required to do so by law or SMART/AJWCC in good faith believe that such action is necessary to (1) comply with the law or with legal process; (2) protect and defend our rights and property; (3) protect against misuse or unauthorized use of our Website and/or System; or (4) protect the personal safety or property of our users or the public (among other things, this means that if the Subscriber provides false information or attempt to pose as someone else, information about the Subscriber may be disclosed as part of any investigation into their actions).

 

SMART and AJWCC collect user-submitted account information such as name, mobile number and email address to identify users and send notifications related to the use of the Website and/or System. SMART and AJWCC also collect user-submitted profile information such as gender, age, occupation, location, etc.

 

SMART and AJWCC may use the Subscriber’s Health Records for the proper management and administration of the System and SMART/AJWCC’s business, and to carry out SMART and AJWCC’s legal responsibilities. SMART and/or AJWCC may also disclose these Health Records for such purposes if the disclosure is required by law, or SMART and/or AJWCC obtain reasonable assurances from the recipient that it will be held confidentially and used or further disclosed only as required by law or for the purpose for which it was disclosed to the recipient, and the recipient notifies SMART/AJWCC of any instances of which it is aware in which the confidentiality of the information has been breached.  Without limiting the foregoing, SMART and/or AJWCC may permit access to the System by SMART and AJWCC’s contracted system developers under appropriate confidentiality agreements.

 

SMART and AJWCC may share profile information and aggregate data concerning the Subscriber’s patients, diagnoses, procedures, orders and the like in a non-personally identifiable manner to the Department of Health, any medical group, independent practice association of physicians, health plan or other organization with which the Subscriber has a contract to provide medical services, or to whose members or enrollees the Subscriber provides medical services, and advertisers. Such aggregate data may be made available to the said parties for purposes of health oversight activities and research. In such situations SMART and AJWCC will never disclose information that will be used to personally identify the Subscriber.

 

  1. ENDING THE SUBSCRIBER’S RELATIONSHIP WITH SMART AND AJWCC

The Terms of Use will continue to apply until terminated by either you or SMART/AJWCC as set out below.

 

If the Subscriber wants to terminate their legal agreement with SMART and AJWCC, they may do so by notifying SMART and/or AJWCC at any time. Your notice should be sent, in writing, to AJWCC’s address which is set out at the end of these Terms of Use.

 

SMART and/or AJWCC may at any time, terminate its legal agreement with the Subscriber, without need of notice or approval from them if:

  • the Subscriber has breached any provision of the Terms (or have acted in manner which clearly shows that the they do not intend to, or are unable to comply with the provisions of the Terms); or
  • SMART and/or AJWCC are required to do so by law or government regulation (for example, where the provision of the System to the Subscriber is, or becomes, unlawful); or
  • the partner with whom SMART and AJWCC offered the System to the Subscriber has terminated its relationship with SMART and AJWCC or ceased to offer the System to the Subscriber; or
  • the provision of the System to the Subscriber by SMART/AJWCC is, in SMART and AJWCC’s opinion, no longer commercially viable or having unexpected technical issues or problems.

 

SMART and/or AJWCC may terminate this Agreement anytime without cause upon thirty (30) days prior notice to you.

 

Nothing in this Section shall affect SMART and AJWCC’s rights regarding provision of System.

 

At the termination of this Agreement SMART and AJWCC will, if feasible, return, upon the Subscriber’s written request, or destroy all the Health Records; or, if such return or destruction is not feasible, extend the protections of this Agreement to such Health Records and limit further uses and disclosures.  The Subscriber acknowledges that it will likely be infeasible to segregate their Health Records for removal from the System, and that if the Subscriber has approved another user to have access to any of their Health Records through Health Record Sharing and Referral, SMART and AJWCC will maintain a version of those records through the time the Subscriber withdraws their approval, and SMART and AJWCC will continue to make those records available to the approved (or formerly approved) user.

 

  1. DISCLAIMERS

SMART and AJWCC DO NOT PROMISE THAT THE WEBSITE, THE SYSTEM OR ANY CONTENT, OR FEATURE OF THE WEBSITE AND THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SUBSCRIBER’S USE OF THE WEBSITE AND/OR SYSTEM WILL PROVIDE SPECIFIC RESULTS. THE WEBSITE, THE SYSTEM AND ITS CONTENTS ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. ALL INFORMATION PROVIDED ON THE WEBSITE AND THE SYSTEM IS SUBJECT TO CHANGE WITHOUT NOTICE. SMART AND AJWCC CANNOT ENSURE THAT ANY FILES OR OTHER DATA FROM THE WEBSITE AND THE SYSTEM WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. SMART AND AJWCC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SMART AND AJWCC DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO THE SUBSCRIBER’S USE OF THE WEBSITE AND/OR SYSTEM. THE SUBSCRIBER ASSUMES TOTAL RESPONSIBILITY FOR THEIR USE OF THE WEBSITE AND/OR SYSTEM. THE SUBSCRIBER’S SOLE REMEDY AGAINST SMART AND AJWCC FOR DISSATISFACTION WITH THE WEBSITE AND/OR SYSTEM IS TO STOP USING THE WEBSITE AND/OR SYSTEM OR ANY HEALTH RECORDS. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES. THE SUBSCRIBER AGREES THAT THEIR USE OF THE WEBSITE AND/OR SYSTEM SHALL BE AT THEIR SOLE RISK.

 

The above disclaimer applies to any damages, liability or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction of or unauthorized access to, alteration of, or use, whether for breach of contract, tort, negligence or any other cause of action.

 

SMART and AJWCC reserve the right to do any of the following, at any time, without notice: (1) to modify, suspend or terminate operation of or access to the Website and/or System, or any portion of the Website and/or System, for any reason; (2) to modify or change the Website and/or System, or any portion of the Website and/or System, and any applicable policies or terms; and (3) to interrupt the operation of the Website and/or System, or any portion of the Website and/or System, as necessary to perform routine or non-routine maintenance, error correction, or other changes.

 

  1. INDEMNIFICATION

The Subscriber agrees to indemnify, defend, and hold harmless SMART, AJWCC and other users, and SMART’s, AJWCC’s  and their affiliates, officers, directors, and agents, from and against any claim, cost or liability, including reasonable attorneys’ fees, arising out of:  (a) the Subscriber’s use of the System; (b) the Subscriber’s breach of any representations, warranties or agreements contained in this Agreement; (c) the Subscriber’s failure to obtain the necessary consents, authorizations or releases from individuals required for making their health information available through the System; (d) the Subscriber’s placing in the System any information that they know or have reason to believe is false or materially inaccurate; (e) the actions of any person gaining access to the System under a User ID created by the Subscriber; (f) the actions of anyone using a User ID, password or other unique identifier created by the Subscriber that adversely affects the System or any information accessed through the System; and (g) the Subscriber’s  negligent or willful misconduct, or of their authorized representatives.

 

  1. LIMITATION OF LIABILITY

IN NO EVENT SHALL SMART AND AJWCC, THEIR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO THE SUBSCRIBER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF HEALTH RECORDS, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE SUBSCRIBER’S ACCESS TO AND USE OF OUR WEBSITE AND/OR SYSTEM, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE AND/OR SYSTEM, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE AND/OR SYSTEM BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY HEALTH RECORD OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE SUBSCRIBER’S USE OF ANY HEALTH RECORD POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE AND/OR SYSTEM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

 

THE SUBSCRIBER SPECIFICALLY ACKNOWLEDGES THAT SMART AND AJWCC SHALL NOT BE LIABLE FOR HEALTH RECORDS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH THE SUBSCRIBER.

 

  1. VIOLATION OF THESE TERMS OF USE

SMART and/or AJWCC may disclose any information we have about the Subscriber (including their identity) if we determine that such disclosure is necessary in connection with any investigation or complaint regarding the Subscriber’s use of the Website and/or System, or to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) SMART and/or AJWCC’s rights or property, or the rights or property of visitors to or users of the Website and/or System. SMART and AJWCC reserve the right at all times to disclose any information that SMART and AJWCC deem necessary to comply with any applicable law, regulation, legal process or governmental request. SMART and AJWCC also may disclose the Subscriber’s  information when SMART and AJWCC determine that applicable law requires or permits such disclosure, including exchanging information with other companies and organizations for fraud protection purposes.

 

The Subscriber acknowledges and agrees that SMART and AJWCC may preserve any transmittal or communication by the SUbscriber with SMART and/or AJWCC through the Website or System, and may also disclose such data if required to do so by law or SMART/AJWCC determines that such preservation or disclosure is reasonably necessary to (1) comply with legal process, (2) enforce these Terms of Use, (3) respond to claims that any such data violates the rights of others, or (4) protect the rights, property or personal safety of SMART and AJWCC, their employees, users of or visitors to the Website and/or System, and the public.

 

The Subscriber agrees that if SMART and/or AJWCC determine that they have violated these Terms of Use or other agreements or guidelines which may be associated with their use of the Website and/or System, SMART and/or AJWCC may, in their sole discretion, suspend (if the violation can be cured) or terminate their access to the Website and/or System and/or block their future access to the Website and/or System. The Subscriber also agrees that any violation by them of these Terms of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to SMART and AJWCC, for which monetary damages would be inadequate, and the Subscriber consents to SMART and AJWCC obtaining any injunctive or equitable relief that SMART and AJWCC deem necessary or appropriate in such circumstances. These remedies are in addition to any other remedies SMART and AJWCC may have at law or in equity.

 

If SMART and AJWCC do take any legal action against the Subscriber as a result of their violation of these Terms of Use, SMART and AJWCC will be entitled to recover from the Subscriber, and the Subscriber agrees to pay all reasonable attorneys’ fees and costs of such action in addition to any other relief granted to SMART and AJWCC. The Subscriber agrees that SMART and AJWCC will not be liable to them or to any third party for termination of their access to the Website and/or System as a result of any violation of these Terms of Use.

 

  1. GOVERNING LAW; DISPUTE RESOLUTION

The Subscriber agrees that all matters relating to their access to or use of the Website and/or System, including all disputes, will be governed by the laws of the Republic of the Philippines without regard to its conflicts of laws, and provisions. The Subscriber agrees to the personal jurisdiction by and venue in the appropriate courts of Quezon City, Philippines, and waive any objection to such jurisdiction or venue. Any claim under these Terms of Use must be brought within one (1) year after the cause of action arises otherwise such claim or cause of action is barred. No recovery may be sought or received for damages other than out-of-pocket expenses, except that the prevailing party will be entitled to costs and attorneys’ fees. In the event of any controversy or dispute between SMART, AJWCC and the Subscriber arising out of or in connection with the Subscriber’s use of the Website and/or System, the parties shall attempt, promptly and in good faith, to resolve any such dispute. If we are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), then either party may submit such controversy or dispute to mediation. If the dispute cannot be resolved through mediation, then the parties shall be free to pursue any right or remedy available to them under applicable law.

 

  1. VOID WHERE PROHIBITED

AJWCC administers and operates the http://www.shine.ph Website from its location in Ateneo de Manila University, Quezon City, Philippines; other System sites may be administered and operated from various locations outside the Republic of the Philippines. Although the Website and/or System is accessible worldwide, not all features, products or System discussed, referenced, provided or offered through or on the Website and/or System are available to all persons or in all geographic locations, or appropriate or available for use outside the Republic of the Philippines. SMART and AJWCC reserve the right to limit, in its sole discretion, the provision and quantity of any feature, product or System to any person or geographic area. Any offer for any feature, product or System made on the Website and/or System is void where prohibited. If the Subscriber chooses to access the Website and/or System from outside the territory of the Republic of the Philippines, they do so on their own initiative and they are solely responsible for complying with applicable local laws.

 

  1. MISCELLANEOUS

If any of the provisions of these Terms of Use are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms of Use, so that these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire agreement between the Subscriber, SMART and AJWCC with regard to the Subscriber’s use of the Website and/or System, and any and all other written or oral agreements or understandings previously existing between the Subscriber, SMART and AJWCC with respect to such use are hereby superseded and cancelled. SMART and AJWCC will not accept any counter-offers to these Terms of Use, and all such offers are hereby categorically rejected. SMART and AJWCC’s failure to insist on or enforce strict performance of these Terms of Use shall not be construed as a waiver by SMART and/or AJWCC of any provision or any right it has to enforce these Terms of Use, nor shall any course of conduct between SMART, AJWCC and the Subscriber or any other party be deemed to modify any provision of these Terms of Use. These Terms of Use shall not be interpreted or construed to confer any rights or remedies on any third parties.

 

  1. FEEDBACK AND INFORMATION

Any feedback the Subscriber provides at this Website shall be deemed to be non-confidential. SMART and AJWCC shall be free to use such information on an unrestricted basis.