Acceptance

Welcome to the Banda Health Solutions website (the Site), an online service owned and operated by Banda Health (Banda Health) for healthcare facilities. Banda Health also develops, operates and distributes software applications (Apps) which include hosted applications and applications for mobile devices. The Site and the Apps are collectively referred to as the Service. These Terms of Service are intended to explain our obligations as a service provider and your obligations as a user (User). By using our Services, you are agreeing to these terms. Please read them carefully. The Service is offered and provided subject to acceptance, without modification, of all these terms and conditions (Terms of Service). The Terms of Service also include all other operating rules, conditions, policies and procedures that may be published by Banda Health, from time to time, at the Site or via any App (collectively, Policies), including without limitation, the Privacy Policy. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO ENTER INTO THIS AGREEMENT, OR IF THE USE OF THIS SERVICE IS NOT PERMITTED BY THE LAWS OF THE COUNTRY IN WHICH IT WILL BE USED, THEN DO NOT REGISTER FOR, DOWNLOAD, ACCESS OR USE THE SERVICE. DOWNLOADING ANY APP, COMPLETING OUR REGISTRATION PROCESS OR OTHERWISE ACCESSING OR USING ALL OR ANY PART OF THE SERVICE WILL CONSTITUTE ACCEPTANCE OF, AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH YOU AGREE TO BE BOUND BY ALL OF THESE TERMS OF SERVICE, WITHOUT MODIFICATION.

Updates

Banda Health reserves the right, at its sole discretion, to update, modify or replace the Terms of Service (including any Policy), in whole or in part, at any time. Banda Health will notify you of any material change. Change notices may be communicated by postings at the Site, via the Apps, email or otherwise, as solely determined by Banda Health. In any case, you should periodically check the Policies and other Terms of Service for changes. Continued access or use of the Service following any change to the Terms of Service constitutes your acceptance of those changes. The Terms of Service may not be amended by You or a party other than Banda Health. Banda Health may modify, suspend or terminate the Service (including without limitation, the Site or any App), in whole or in part, at any time.

Eligibility

You must be at least 18 years of age to enter into this binding agreement. If you are not at least 18 years old or you do not agree to each of these Terms of Service, you are prohibited from and must not access or use any of our Services. Under no circumstances may our Services be used by a child under 13 years of age.

Registration

To establish an account, register for and use the Service, certain information about the healthcare facility or provider and the User may be required. Such information may include name, address, telephone number, email address, username, password. You may also be prompted to elect certain preferences and permissions. Banda Health may refuse to accept your application to register for the Service, in its sole discretion. Upon acceptance, Banda Health will activate the access credentials for your account. You are solely responsible for maintaining the confidentiality of your access credentials and other account information, and you will be solely liable for any and all activities under your account. You agree to notify Banda Health immediately of any unauthorized use of your User account or any other breach of security related to the Service. 

Fees and Payments

Banda Health offers a choice of subscription plans for Services (Plan). Users must select a Plan and pay for Services in advance. Payment is for service and content subscriptions purchased and not based on actual usage. Plan fees may change from time to time with new fees applying to a user when a new subscription period commences. Payments are not cancelable and fees paid are non-refundable. Subscription periods differ based on the plan selected at the time of payment (e.g. annually, quarterly, monthly). At the end of a subscription period, Plans will automatically renew for a subscription period equal to the prior subscription period, with fees assessed according to the fee schedule active at the time of renewal.  You will be notified of such at your email address on file. Payment may be made via MPesa +254-746-730-094 (under name Faith Mungai). Subscription renewal fees are due within 7 calendar days of renewal or Banda Health may suspend User’s access to Services.  If payment is not made with 30 calendar days, Banda Health reserves the right to close the account. User will not have access to data in suspended or closed accounts.   User will retain access to their data during the subscription period in question in the event of a payment dispute as long as the User is cooperating diligently in good faith to resolve the dispute. 

Taxes

Banda Health’s fees do not include any taxes, levies, duties or other governmental assessments such as value-added, sales, use or withholding taxes assessable by any jurisdiction whatsoever (collectively Taxes). User is responsible for paying all Taxes associated with its use of Services. If Banda Health is found to have a  legal obligation to pay or collect Taxes for which User is responsible, Banda Health will send User an invoice for the Taxes due and User must pay the amount unless User provides Banda Health with a valid tax exemption certificate authorized by the appropriate taxing authority,

Not Healthcare Services

The Service is only intended as an information tool to aid healthcare providers and must not be used as a substitute for professional healthcare Services. Banda Health does not provide professional healthcare services, and has no control over how a healthcare provider uses the Service. User agrees to release Banda Health from any and all claims, demands, damages and liabilities of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the Service (including any injuries or disability arising therefrom). 

Service Data and Analytics

The Service collects, stores, processes and analyzes Service Data and produces Analytics. Whenever Users interact with the Service, a variety of technologies are employed to automatically or passively collect Service Data which may be analyzed to produce Analytics. Service Data means all data and information that are provided by you during registration and your subsequent use of the Service and all other data and information about you that are otherwise discerned or collected by Banda Health based on your access and use of the Service. Service Data may include browser or device type; operating system; time of day; identification of Site or App page views; geographic location. The term Analytics means deidentified and aggregated User profiles and statistics, metrics, abstractions and other analyses that are based on or derived from the Service Data or your use of the Service.

You agree that Banda Health can use your Service Data and Analytics in the manner and for the purposes described in these Terms of Service, including without limitation: to access, record, collect, copy, store, process, analyze and use Service Data to provide the Service; to design, develop and produce Analytics; to market and promote Banda Health and the Service. When you upload, submit, store, send or receive content to or through our Services, you grant  Banda Health (and those we work with) a perpetual, non-exclusive license to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display and distribute such content. The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Service, and to develop new ones. This license continues even if you stop using our Service. Make sure you have the necessary rights to grant us this license for any content that you provide to us before you do so. You can find more information about how Banda Health uses and stores content in the privacy policy. 

User Rules and Conduct

Unauthorized use of the Service, including without limitation, accessing any aspect of the Service for which you are not authorized, or any commercial use by you, such as, for example, reselling or marketing any App, collecting money, or advertising or promoting any product, service, pyramid scheme or other venture is expressly prohibited. You are solely responsible for all acts or omissions that occur under your account, username or password, including messaging conducted via the Service. You agree to abide by all applicable local, state, national and international laws, regulations and rules. You represent and warrant that you have obtained all required consents and will comply with all applicable laws, including without limitation privacy laws, in connection with any use and disclosure of information relating to the Service. Do not provide Banda Health with identifiable or personal information about a third party unless you are authorized to do so. It is your obligation to obtain the individual’s consent. You agree not to use the Service to take any action that:

• is unlawful, deceptive, misleading, fraudulent, threatening, abusive, harassing, libelous, invasive of another’s privacy, tortious, obscene, pornographic, profane or which otherwise violates the Terms of Service;
• is prohibited by the Terms of Service, or for any other purpose not authorized by Banda Health
• infringes any patent, trademark, trade secret, copyright, right of publicity, privacy right or other right of any person or entity;
• reveals any confidential, proprietary or other information that you are required to keep secret, including without limitation, non-public Personal Data about another individual;
• discovers or reveals any personal information about another individual, including another person’s Personal Data or any other information that could be used to track, contact or impersonate that person, unless you have obtained that individual’s informed consent to do so or such information has been provided by that person in any public communication or forum;
• constitutes unauthorized or unsolicited advertising, junk or bulk email (“spamming”), chain letters or any form of lottery or gambling;
• imposes an unreasonable or disproportionately large load on Banda Health’s computing, storage or communications systems and networks, or attempts to gain unauthorized access to the Site, any App or other aspect of the Service (including the underlying technology platform), someone else’s Service Data, accounts, computer systems or networks connected to the Service, through password mining or otherwise;
• contains software viruses or any other computer codes, files or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware or network system or to damage or obtain unauthorized access to any system, data or other information of Banda Health, a User or other third party;
• registers for or creates User accounts by any automated means or under false or misleading pretenses, including the use of a false, misleading or disguised email address;
• harvests, scrapes or collects any information from the Service;
• uses any script, bot or other automated means that only simulates compliance with the Terms of Service or other requirement applicable to the Service;
• disguises the source of Service Data; or
• impersonates any person or entity, including any User or any employee or representative of Banda Health or a Banda Health business partner.

Banda Health may, at its sole discretion, immediately suspend or terminate your access to the Service should your conduct fail (or appear to fail) to strictly conform to any provision of this section. Banda Health has no obligation to monitor the Service or any User’s use thereof. However, Banda Health reserves the right at any time and without notice to monitor, review, copy, retain or disclose any information as may reasonably be necessary to satisfy any applicable law, regulation, legal process or governmental request or investigation (including any inquiry from law enforcement).

You are responsible for managing the User accounts of your employees to ensure that only current employees have access and that the access privileges of departing employees are terminated.

Connections

You may be able to obtain an App, access the Service and/or communicate with the Service, and you may be able to link or communicate from the Service to: applications, devices, distribution platforms and websites not owned and operated by Banda Health. These other applications, devices, platforms and websites are not operated or controlled by Banda Health, and you agree that Banda Health is not responsible for the availability, accuracy, legality, appropriateness or any other aspect of the content or function of such applications, devices, platforms and websites. Any such connection to or from the Service does not constitute or imply any guarantee or endorsement by Banda Health of that application, device, platform or website or any association with its operators. Additional or different terms and conditions (including without limitation, privacy and security practices) apply when you access and use such other applications, devices, platforms and websites.

Advertising and Promotions

Currently, the Service does not include advertisements or promotions for or offers from Banda Health or other third parties.

Proprietary Rights

The Service and all content, materials, data and other information created by or for Banda Health (or its affiliates or licensors) and made available via the Service (collectively, Content), are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, and Banda Health (and its applicable affiliates and licensors) own and shall retain all rights, title and interests (including all intellectual property and proprietary rights) to the Content. Banda Health and its licensors and suppliers own both the proprietary rights as well as the intellectual property rights to all URLs, materials, products, web content, web page designs, web page layouts, images, text, tools, utilities and software that make up the Services, excluding your data and information which you provide to us or input using Banda Health Solutions and the Service. The technical procedures, processes, concepts and methods of operation that are inherent within Banda Health Solutions constitute trade secrets. The usage of our Services does not constitute a sale or transfer of any intellectual property rights to the users. You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any part of the Service or Content. Your systematic retrieval of data or other Content from the Service to create or compile, directly or indirectly, a collection, database or directory is strictly prohibited. Reproducing, copying or distributing any App, or any Content, or any design elements from the Site or any App, for any other purpose is strictly prohibited. Attempting to access or use the Service or Content for any purpose not expressly permitted in the Terms of Service is prohibited. 

Feedback License

If you provide Banda Health with any idea, recommendation or other suggestion regarding possible corrections, changes, improvements or extensions related to the Service or Content (collectively, Feedback), in any form or by any means (whether through the Service, or by direct communication (e.g. email) with Banda Health or any of its officers, directors, employees, representatives, agents or business partners), then you:

• represent and warrant that the Feedback does not include your own or any third party’s confidential or proprietary information; and
• acknowledge and agree that Banda Health is under no obligation of confidentiality, express or implied, with respect to the Feedback; and
• agree to grant and do hereby grant to Banda Health and its affiliates and licensees a non-exclusive, transferable, perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and make derivative works of the Feedback, in any manner, in any media and for any purpose, and to permit third parties to do the same.

Termination

Banda Health may immediately terminate your access to all or any part of the Service (including without limitation, any App) at any time, with or without cause, with or without notice. You may terminate its account by sending an email to info@bandahealth.org using “Entity Account Termination Request” in the subject line. Upon termination, all rights and obligations of the parties under the Terms of Service shall cease, and you shall immediately stop accessing and using the Service and Content, except that (a) all obligations that accrued prior to the effective date of termination (including payment obligations, if applicable) and all remedies for breach of the Terms of Service shall survive, (b) Banda Health may retain and use the data you provide in the manner described herein.

No Warranties

THE SITE, APPS, CONTENT AND ALL OTHER ASPECTS OF THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE SITE, APPS, CONTENT AND ALL OTHER ASPECTS OF THE SERVICE ARE PROVIDED WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF ACCURACY, INTEGRATION, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. BANDA HEALTH AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS DO NOT WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY SERVICE DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) ANY RESULT OR OUTCOME CAN BE ACHIEVED. USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.

Limitation of Liability

You agree that Banda Health (and its affiliates, licensors and business partners) shall not be responsible or liable for any unauthorized access to, alteration or use of your account, transmissions or data, or for any material or data sent or received or not sent or received through the Service. You agree that Banda Health (and its affiliates, licensors and business partners) shall not be responsible or liable for any Users of the Service including threatening, defamatory, obscene, offensive, illegal or other content or conduct or for any User’s violation of another person’s rights, including rights of publicity or privacy rights.

IN NO EVENT SHALL BANDA HEALTH (OR ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS) BE LIABLE CONCERNING ANY SUBJECT MATTER RELATED TO THE SITE, APPS, CONTENT OR OTHER ASPECTS OF THE SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF AMOUNTS YOU PAID TO BANDA HEALTH FOR THE SERVICE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. 

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnification

You agree to defend, indemnify and hold harmless Banda Health, its officers, directors, employees, suppliers, and affiliates, from and against any and all claims, demands, actions, proceedings, suits, liabilities, losses, damages, penalties, fines and expenses (including attorney’s fees and costs) arising out of or relating to your use of the Service, including without limitation any claims that you have used the Service in violation of another party’s rights, in violation of any law, or in violation of any provisions of the Terms of Service.

Governing Law and Arbitration

The laws of North Carolina, USA, excluding North Carolina’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Service. All claims arising out of or relating to these terms or the Service will be litigated exclusively in the federal or state courts of  North Carolina, USA, and you and Banda Health consent to personal jurisdiction in those courts.

Integration

The Terms of Service are the entire agreement between you and Banda Health with respect to access, use and operation of the Service, and supersede all prior or contemporaneous communications, proposals and agreements (whether oral, written or electronic) between you and Banda Health with respect to the Service. If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable.

General Provisions

Your rights and obligations under the Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with Banda Health’s prior written consent. Banda Health may subcontract, delegate, assign or otherwise transfer any or all of its rights, licenses and obligations hereunder without your consent. All waivers, consents and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of the Service or Terms of Service, and neither party has any authority of any kind to bind the other in any respect. All notices under these Terms of Service will be in writing, in English and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail or express courier, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or email.

Copyright and Trademark Notices

BANDA HEALTH and all logos, icons, pictures and illustrations used on this website are, unless where the contrary is expressly stated, the trademark of Banda Health. The names and logos of companies, products or services mentioned at the Site and in any App may be the trademarks or service marks of their respective owners and shall not be deemed to create any endorsement or association between Banda Health and such owners.

All rights not expressly granted herein are reserved.