TIBU CONSULTATION TERMS & CONDITIONS
1. NATURE AND APPLICABILITY OF TERMS
The Agreement applies to: A health care worker providing the services on the Consult platform as the case may be (“Practitioner(s)”, “you” or “User”); or A patient (“End-User”, “you” or “User”); or Otherwise a user of the Mobile Application (“you” or “User”).
The Services may change from time to time, at the sole discretion of MCA, and the Agreement will apply to you providing the Service. MCA reserves the right to modify or terminate any portion of the Agreement for any reason and at any time, and such modifications shall be informed to you in writing. You should read the Agreement at regular intervals. Your providing of Services following any such modification constitutes your agreement to follow and be bound by the Agreement so modified. You acknowledge that you will be bound by this Agreement for providing any of the Services offered by us. If you do not agree with any part of the Agreement, please do not use the Mobile Application or avail any Services.
2. TIBU CONSULTATION
TIBU Consultation is a Service on the TIBU platform, which TIBU is a product of MCA Ltd that allows Users & Practitioners to communicate, on paid mode. Further, Users may access this feature on the Mobile platform to get assigned, for the purposes of consultation, to a Practitioner whereby such Practitioners are inter alia assigned through the system’s algorithm/software-program that finds the most available and accepting Practitioner. The scope of this feature as detailed herein is collectively referred to as "Consultation".
b). Terms for Users
The Users expressly understand, acknowledge and agree to the following set forth herein below:
- The system uses an algorithm/software-program to find the most available and accepting Practitioner.
- In case any prescription is being provided to User by the Practitioner, the same is being provided at the consultation, however, in no event shall the prescription provided by Practitioners be relied upon as a final and conclusive solution.
- The Users agree to use the advice from a Practitioner pursuant to: a condition which does not require emergency treatment, physical examination or medical attention; medical history available as records with them for reference; a record of physical examination and report thereof with them; a consultation with their medical practitioner before abandoning or modifying their ongoing treatment.
- The User understands that the advice provided by the Practitioner is based on general medical conditions and practices prevalent in Kenya, to the best of his knowledge and ability, and not for conditions which are territory specific for regions other than Kenya, irrespective of where the User is procuring medical services or engaging in communication with the Practitioner.
- During the consultation and thereafter, the Practitioner may upload the prescription/health records of the User on the account of the User on the Application for access of the User.
- Notwithstanding anything contained herein, TIBU is not in any manner responsible for any drug/medicines prescribed or the therapy prescribed by the Practitioner.
- If Practitioner responds to the User’s query, the system could trigger communications to the User, in the form of notification/text/email/others. The User further understands that TIBU may send such communications like text messages/email/calls before and/or after Practitioner’s consultation to User’s mobile number, based on the Practitioner’s settings (through the Application). However, and notwithstanding anything to the contrary in this Agreement, TIBU does not take responsibility for timeliness of such communications.
- Consultation is merely a consulting model, any interactions and associated issues with the Practitioner on Consultation including but not limited to the User’s health issues and/or the User’s experiences is strictly between the User and the Practitioner.
- Any conversations that the Users have had with the Practitioner will be subject to doctor patient confidentiality and treated as such as per the applicable laws, TIBU policies, including the TIBU guidelines and subject to confidentiality.
- The User hereby agrees to and grants consent to TIBU’s medical team with the right to audit his/her consultations on the platform for the purpose of improving treatment quality and other related processes.
- User shall refrain from raising any personal queries or advice on the TIBU platform which are not related to a specific disease / medicine.
- Users shall not use abusive language during the Consultation. In the event of an abuse from the User is reported by a Practitioner, TIBU reserves the right to block such Users from the platform and TIBU is not responsible for honouring any refund request towards his/her consultation on the platform.
- Users may share images or videos of the affected areas of their body parts with the Practitioner only if it is absolutely necessary for diagnosing his/her condition and if he/she is personally comfortable in sharing such images or videos. TIBU shall not be responsible for any such images or videos shared by the Users with the Practitioners.
- Users shall be prepared and agree to share all previous and/or current relevant documents or reports to the Practitioner promptly upon request.
- For every paid consultation on the TIBU platform, the Users shall not obtain consultation for more than one User. In the event, the Users attempt to obtain consultation for more than one User through a single paid consultation on the TIBU platform, such consultations will not be addressed by the relevant Practitioner.
- Users shall not persuade Practitioners to prescribe drugs (including higher dose strength) that do not conform to the prescription and/or are not relevant to the diagnosis/condition under consideration/review.
- User understands and agrees to provide accurate information and will not use the Consultation for any acts that are considered to be illegal in nature.
- If User decides to engage with a Practitioner to procure medical services or engages in communication, exchange of money for services outside of the TIBU platform, the User shall do so at their own risk. TIBU shall not be responsible for any breach of Service or Service deficiency by any Practitioner.
- The User agrees and understands that the transaction with the Practitioner are subject to jurisdiction of Kenyan laws and that any claim, dispute or difference arising from it shall be subject to the jurisdiction provision as contained in the Terms and Conditions hereunder, at all times. The User further agrees and understands that the Practitioner is a Healthcare worker/medical practitioner who is licensed to practice medicine in Kenya and the onus is on the User to determine if he/she is eligible to consult with the Practitioners via the Application.
- The User shall indemnify and hold harmless MCA and its affiliates, subsidiaries, directors, officers, employees and agents from and against any and all claims, proceedings, penalties, damages, loss, liability, actions, costs and expenses (including but not limited to court fees and attorney fees) arising due to or in relation to the use of Website by the User, by breach of the Terms or violation of any law, rules or regulations by the User, or due to such other actions, omissions or commissions of the User that gave rise to the claim.
- The User shall make payment using the payment gateway to make payments online, solely at User's discretion. Should there be any issues with regard to the payment not reaching the TIBU account, the User may contact TIBU's support team via email@example.com
3. TERMS FOR PRACTITIONERS
- The Practitioner shall promptly reply to the User after receiving User’s communication. In case of non-compliance with regard to adhering to the applicable laws/rules/regulations/guidelines by the Practitioner, TIBU shall have the right to replace such Practitioners for the purpose of consultation to the User.
- The Practitioner has the discretion to cancel any consultation at any point in time in the event the Practitioner feels, it is beyond his/her expertise or his/her capacity to treat the User. However, it is strongly recommended that the Practitioner advise the User and appropriately explain additional steps which may include referring the User to additional or specialized care for further evaluation.
- The Practitioner is and shall be duly registered, licensed and qualified to practice medicine/ provide health care, wellness services, as per applicable laws/regulations/guidelines set out by competent authorities and the Practitioner shall not be part of any arrangement which will prohibit him/her from practicing medicine within the territory of Kenya. The Practitioner shall at all times ensure that all the applicable laws that govern the Practitioner shall be followed and utmost care shall be taken in terms of the consultation/ services being rendered.
- Practitioner shall ensure that the consultation is treated as an in-clinic consultation and provide advice to the best of the Practitioners’ knowledge.
- For a Practitioner to complete a consult, it is mandatory to provide a consultation summary. The recommended contents (at least one) of the said consultation summary are as follows: Summary of presenting illness; Provisional diagnosis; Medicine posology including side effects if any; Diagnostics/investigation results; Lifestyle changes and recommendations; Any other relevant instructions applicable; Detailed invoice and receipt for the services rendered
- If Practitioner needs to change his/her status to 'unavailable', the same could be changed after having completed all the open consultations. In case the Practitioner leaves a consultation open and changes the status to 'unavailable', the Practitioner understands that he shall be liable to pay such penalty as may be imposed by TIBU.
- The Practitioner is not allowed to use any other platform other than the Consult platform for the purpose of interacting/communicating with the User and any attempt by the Practitioner to interact with the Users through any other external means of communication will amount to violation of this Agreement by the Practitioner and can result in the Practitioner being removed from the TIBU platform.
- If the Practitioner’s performance on the TIBU platform is not compliant with the expected guidelines of TIBU or the Practitioner is found to be misusing the TIBU platform, the Practitioner may result in being removed from the TIBU platform all together.
- The Practitioner acknowledges that should TIBU find the Practitioner to be in violation of any of the applicable laws/rules/ regulations/guidelines set out by the authorities then TIBU shall immediately take internal action/ such other legal action as may be required.
- In case of there being any technical failure, at the time of transaction and there is a problem in making payment, User may contact TIBU's support team via firstname.lastname@example.org OR +254 702 303 956
- It is further understood by the Practitioner that the information that is disclosed by the User at the time of consultation is personal information and is subject to all applicable privacy laws, shall be confidential in nature and subject to User and Practitioner privilege.
- The Practitioner understands that TIBU makes no promise or guarantee for any uninterrupted communication and the Practitioner shall not hold TIBU liable, if for any reason the communication is not delivered to the User(s), or are delivered late or not accessed, despite the efforts undertaken by TIBU.
- The Practitioner understands that TIBU makes no promise or guarantee for the number of consultations that will be allocated to a Practitioner on the TIBU platform. The consultations allocated to a Practitioner will depend upon various factors, which inter-alia includes, Consult response time, patient feedback and number of practitioners available, etc., It is the responsibility of the Practitioner to keep a track of their overall performance using the TIBU application.
- It shall be the responsibility of the Practitioner to ensure that the information provided by User is accurate and not incomplete and understand that TIBU shall not be liable for any errors in the information included in any communication between the Practitioner and User.
- The Practitioner shall indemnify and hold harmless MCA and its affiliates, subsidiaries, directors, officers, employees and agents from and against any and all claims, proceedings, penalties, damages, loss, liability, actions, costs and expenses (including but not limited to court fees and attorney fees) arising due to the Services provided by Practitioner, violation of any law, rules or regulations by the Practitioner or due to such other actions, omissions or commissions of the Practitioner that gave rise to the claim.
4. REFUND POLICY FOR PATIENTS
- In the event it is proved that the Practitioners have acted in contravention of any applicable laws, TIBU shall provide a complete refund to the User, subject to investigation undertaken by TIBU.
- If the cancellation is due to the abusive nature of the User, such User shall not be eligible for any refund and TIBU/Practitioner shall be entitled to take any legal action, depending upon the gravity of the matter.
- User shall refrain from raising any personal queries or advice on the TIBU platform which are not related to a specific disease / medicine. In the event the User raises any such personal queries or advice on the TIBU platform, TIBU reserves the right to terminate the consultation of such Users and further, such Users will not be entitled to any refund.
- In case a Practitioner does not respond to a paid consultation within ten (10) minutes from the time of a request consultation on the TIBU platform the User shall have the right to request for a refund and any amounts paid by the User with respect to the such consultations will be refunded.
- TIBU reserves the right to permanently block Users from the TIBU platform in the event TIBU receives multiple cancellation request from such Users for reasons which do not form part of the cancellation policy of TIBU.
- Users are allowed a period of three (3) days to flag any consultation as inadequate, and request for a refund. No refund requests shall be considered thereafter.
- Users can request a refund by contacting TIBU’s support: email@example.com
- TIBU shall verify the details and process the refund where applicable, solely at its discretion. After a refund request is processed, the money will be refunded to the User in seven (7) working days from the day refund has been approved from TIBU.
- In the event a User raises any concerns regarding the inappropriateness of a particular consultation on the TIBU platform, the User agrees that the refund or any other outcome for any such concerns raised by the User will be subject to a detailed review of the said concerns by TIBU as per TIBU’s internal policies.
- In all matters related to refund and settlement under this Agreement, TIBU shall decide so at its sole and absolute discretion after detailed review of the matter and taking into account all the involved parties’ information. The decision of TIBU shall be final in this regard.
5. EXPRESS DISCLAIMERS
TIBU consultation is intended for general purposes only and is not meant to be used in emergencies. Further, if the Practitioner adjudges that a more in depth examination would be required and advises so, it is the sole responsibility of the User to book an appointment for the same. In case of any negligence on the part of the User in acting on the same and the condition of the User deteriorates, TIBU shall not be held liable.
TIBU Consultation is a platform being made available to Users to assist them to obtain consultations from Practitioners.
The Practitioner using the TIBU Consultation platform shall have the following confidentiality obligations:
- Practitioner agrees to keep confidential all deliverables and all data, technical, product, business, financial, and other information regarding the business and software programs of TIBU, its affiliates, customers, employees, investors, contractors, vendors and suppliers (the “Confidential Information”), including but not limited to programming techniques and methods, research and development, computer programs, documentation, marketing plans, customer identity, user engagement models and business methods. Without limiting the generality of the foregoing, Confidential Information includes all information and materials disclosed orally or in any other form, regarding TIBU’s and/or its affiliates’ software products or software product development including, but not limited to, the configuration techniques, data classification techniques, user interface, applications programming interfaces, data modelling and management techniques, data structures, and other information of or relating to TIBU’s and/or its affiliates’ software products or derived from testing or other use thereof.
- Practitioner shall at all times protect and safeguard the Confidential Information and agrees not to disclose, give, transmit or otherwise convey any Confidential Information, in whole or in part, to any other person.
- Practitioner agrees that it will not use any Confidential Information for its own purpose or for the benefit of any third party and shall honour the copyrights and other intellectual property rights of TIBU and will not copy, duplicate, or in any manner reproduce any such copyrighted materials.
- Upon request of TIBU or upon termination of the Agreement, the Practitioner shall promptly deliver to TIBU any and all documents, notes, or other physical embodiments of or reflecting the Confidential Information (including copies thereof), if any that are in possession or control of the Practitioner.
- Nothing in the Agreement will be construed as conveying to the Practitioner any right, title or interests or copyright in or to any Confidential Information of TIBU; or to convey any license as to use, sell, exploit, copy or further develop any such Confidential Information.
- The confidentiality obligations of the Practitioner as mentioned herein will survive termination or expiration of the Agreement. TIBU has the right to take such action it deems necessary to protect its rights hereunder, including, without limitation, injunctive relief and any other remedies as may be available at law or equity.
- Any non-disclosure agreement signed between TIBU and the Practitioner will remain effective, provided that its duration shall be extended coterminous with the Agreement. If there is a conflict between the confidentiality obligations of the Agreement and any non-disclosure agreement, the most restrictive obligation will prevail.
7. RIGHT TO USE LOGOS AND TRADEMARKS
TIBU is entitled to use the Practitioner’s name and logo, including trademarks (collectively, “Marks”) on the Website and TIBU’s marketing materials. TIBU will be permitted to issue press releases of any kind referencing the Practitioner and the Marks. However, the Practitioner shall seek a written permission from TIBU to participate in any press releases or for using trade names, trademarks, or service marks of TIBU in any of its advertisement, publicity, or promotion.
TIBU/MCA (as the context warrants) reserves the right to suspend or terminate services provided through the Application and under this Agreement, with or without notice and to exercise any other remedy available under law, in case of the occurrence of the following events: Practitioner breaches any terms and conditions of the Agreement or contravenes applicable laws; and A third-party reports violation of any of its right as a result of your use of the Services
9. LIMITATION OF LIABILITY
In no event, including but not limited to negligence, shall MCA, or any of its directors, officers, employees, agents or content or service providers, affiliates and group companies (collectively, the “Protected Entities”) be liable for any direct, indirect, special, incidental, consequential, exemplary or punitive damages arising from, or directly or indirectly related to, the use of, or the inability to use, the Application or the content, materials and functions related thereto, the Services, User’s provision of information via the Website, lost business or lost End-Users, even if such Protected Entity has been advised of the possibility of such damages. In no event shall the Protected Entities be liable for: provision of or failure to provide all or any Service by Practitioners to End- Users contacted or managed through the Application; any content posted, transmitted, exchanged or received by or on behalf of any User or other person on or through the Application; any unauthorized access to or alteration of your transmissions or data; or any other matter relating to the Application.
If any provision of this Agreement is found to be void or unenforceable, that provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect and the Parties shall use their respective reasonable endeavours to procure that any such provision is replaced by a provision which is valid and enforceable, and which gives effect to the spirit and intent of this Agreement.
No provision of this Agreement shall be deemed to be waived and no breach excused, unless such waiver or consent shall be in writing and signed by TIBU. Any consent by TIBU to, or a waiver by TIBU of any breach by you, whether expressed or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach.
12. NO DISPARAGEMENT
Notwithstanding anything herein, neither party will make any claims, representations or warranties on behalf of the other party or bind the other party, and neither party is authorized to do so by this Agreement. The relationship between the parties will be that of independent contractors. Nothing contained herein will be construed to imply a joint venture, principal or agent relationship, or other joint relationship, and neither party will have the right, power or authority to bind or create any obligation, express or implied, on behalf of the other party. Practitioner shall not make any public statement disparaging the other party’s brand, marks, products or services. Each party will retain all right, title and interest in and to its products, services, marks, and all content, information and other materials, and nothing contained in this Agreement will be construed as conferring upon such party, by implication, operation of law or otherwise, any other license or other right.
Any notice or other communication to be given under, or pursuant to, this Agreement must be in writing and must be given only by posting or delivering such notice or communication to the address set out in this clause with a copy sent to the receiving party’s solicitors. Notice is deemed received when the receiving party acknowledges receipt by stamping the same.
Mobile Consultations Africa Limited
14. RIGHTS OF THIRD PARTIES
Save for the purposes of enforcing clause 8 the Parties agree that the terms of this Agreement are not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999.
15. APPLICABLE LAW AND DISPUTE SETTLEMENT
This Agreement shall be governed by and construed in accordance with Kenyan law. Any dispute arising out of or in connection with, or concerning the carrying into effect of, this Agreement shall be subject to the exclusive jurisdiction of the courts of Kenya, and the Parties hereby submit to the exclusive jurisdiction of that court for these purposes