1.1 MEANING OF CAPITALISED WORDS AND PHRASES
Capitalised words and phrases used in these terms and conditions have the meaning given:
(a) to that word or phrase in the Key Details;
(b) by the words immediately preceding any bolded and bracketed word(s) or phrase(s); or
(c) in the definitions in clause 19 of this agreement.
1.2 ORDER OF PRECEDENCE
(a) Subject to clause 1.2(b) and unless otherwise expressly stated, in the event of any inconsistency between these terms and conditions and the Key Details, these terms and conditions will prevail to the extent of such inconsistency.
(a) This agreement commences on the Commencement Date and will continue for the Initial Term, and any Renewal Term applicable per clause 2(b), unless terminated earlier in accordance with clause 14 (Term).
(b) Subject to clause 2(c), upon expiration of the Initial Term, this agreement will automatically and indefinitely renew on an ongoing basis for a period equal to the Initial Term (Renewal Term).
(d) At least 3 months prior to the expiry of the Initial Term or a Renewal Term, the Provider will provide the Client with advanced written notice of the agreement renewing and any applicable changes to the Fees or the terms of this agreement (Renewal Notice).
3.1 SCOPE OF SOLUTION
(a)
The Solution includes the Software, Services and Support set out in the
Key Details (Solution).
(b)
The Provider will provide the Solution in accordance with all
applicable laws and industry standards.
(a) (Enhancements and Customisations) The Provider may from time to time in its absolute discretion install enhancements to the Solution, where enhancements mean any upgraded, improved, modified or new versions of the Solution (including any customisations made at the Client’s request).
(b) (Additional users under the licence) If additional users are required to the Number of Licensed Users set out in the Key Details, the following process will apply:
(i) the Client must notify the Provider of the number of additional users required; and
(ii) the Provider will invoice the Client the Additional Licensed User Fee for each additional user for the remaining months of the ongoing year.
During the Term, the Provider grants to the Client a non-exclusive, non-transferable licence to use the Solution and Documentation and to provide access to the Software for the Number of Licensed Users set out in a Key Details in accordance with this agreement.
The Provider may store Client Data using a third-party hosting service selected by the Provider (Hosting Service), subject to the following terms:
(a) (hosting location) The Client acknowledges and agrees that the Provider may host the Software via cloud-based services which use storage servers located in and potentially outside England and Wales.
(b) (service quality) While the Provider will use its best efforts to select an appropriate hosting provider, the Provider does not guarantee that the Hosting Service will be free from errors or defects or that Client Data will be accessible or available at all times.
(c) (security) The Provider will use its best efforts to ensure that Client Data is stored securely. However, the Provider does not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to Client Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(d) (backups and disaster recovery) In the event that Client Data is lost due to a system failure (e.g., a database or webserver crash), the Provider cannot guarantee that any backup will be available, or if available that such a backup will be free from errors or defects.
3.5 SUPPORT SERVICES
(a) Where the Key Details include Support, the Provider will provide the Support to the Client during the Term in accordance with Schedule 1.
(b) The Client acknowledges and agrees:
(i) the Provider will take reasonable steps to provide Support where necessary during the Term;
(ii) the Client must first endeavour to resolve any issues with the Software internally and the Provider will not assist with issues that are beyond its reasonable control; and
(iii) the Client is responsible for all internal administration and managing access, including storing back-up passwords and assisting its Personnel to access and use the Software.
The Provider may subcontract any aspect of providing the Solution and the Client hereby consents to such subcontracting.
4.1 GENERAL
The Client:
(a) must provide the Provider with all documentation, information and assistance reasonably required by the Provider to provide the Solution.
(b) must provide the Provider with access to the Client’s premises or IT systems and Personnel, to the extent required to install/give access the Software and perform the Support; and
(c) agrees that it will not, by receiving or requesting the Solution:
(i) breach any applicable laws, rules or regulations (including any applicable privacy laws); or
(ii) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.
4.2 USERS
(a)
The Client must, and must ensure that all Users:
(i)
comply with this agreement at all times; and
(ii)
notify the Provider without delay whenever it becomes aware of any
case of a breach of this clause 4 or otherwise any illegal or
unauthorised use of the Solution.
(b) The Client acknowledges and agrees that the Provider will have no liability for any act of a User or for damage, loss or expense suffered by a User in connection with the use of the Solution and will indemnify the Provider for any such damage, loss or expense.
4.3 USE OF SOLUTION
The Client must not, and must not encourage or permit any User or
any third party to, without the Provider’s prior written approval:
(a) upload sensitive information or commercial secrets to the Software;
(b) upload any harmful, discriminatory, defamatory, maliciously false implications, offensive, explicit, inappropriate, offensive, illicit, illegal, pornographic, sexist, homophobic or racist material to the Software;
(c) upload any material that is owned or copyrighted by a third party;
(d) make copies of the Documentation or the Solution;
(e) adapt, modify or tamper in any way with the Solution;
(f) remove or alter any copyright, trade mark or other notice on or forming part of the Solution or Documentation;
(g) create derivative works from, translate or reproduce the Solution or Documentation;
(h) publish or otherwise communicate the Solution or Documentation to the public, including by making it available online or sharing it with third parties;
(i) sell, loan, transfer, sub-licence, hire or otherwise dispose of the Solution or Documentation to any third party, other than sub-licensing to a Licensed User for the Number of Licensed Users;
(j) decompile or reverse engineer the Solution or any part of it, or otherwise attempt to derive its source code;
(k) attempt to circumvent any technological protection mechanism or other security feature of the Solution;
(l) permit any person other than Licensed Users to use or access the Solution or Documentation;
(m) intimidate, harass, impersonate, stalk, threaten, bully or endanger any other user of the Solution or distribute unsolicited commercial content, junk mail, spam, bulk content or harassment in connection with the Solution;
(n) share its Software account information with any other person and that any use of its account by any other person is strictly prohibited. The Client, must immediately notify the Provider of any unauthorised use of it or its User’s account, password or email, or any other breach or potential breach of the Software’s security;
(o) use the Solution for any purpose other than for the purpose for which it was designed, such as not using the Solution in a manner that is illegal or fraudulent or facilitates illegal or fraudulent activity; nor
(p) act in any way that may harm the Provider’s reputation or that of associated or interested parties or do anything at all contrary to the interests of the Provider or the Solution.
4.4 CLIENT DATA
By providing or posting Client Data, the Client represents and warrants that, and must ensure that all Users make equivalent representations and warranties:
(a) the Client is authorised to provide the Client Data;
(b) the Client Data is accurate and true at the time it is provided;
(c) the Client Data is free from any harmful, discriminatory, defamatory or maliciously false implications and does not contain any offensive or explicit material;
(d) the Client Data does not infringe any Intellectual Property Rights, including copyright, trademarks, business names, patents, Confidential Information or any other similar proprietary rights, whether registered or unregistered, anywhere in the world;
(e) the Client Data does not contain any viruses or other harmful code, or otherwise compromise the security or integrity of the Solution or any network or system; and
(f) the Client Data does not breach or infringe any applicable laws.
(c) The Provider will only be required to perform Changes, if:
(i) both parties agree in writing for the Provider to perform the Changes; and
(ii) the Client confirms in writing that they accept the relevant Change Fee and the Change Fee Terms.
(d) The same standards, warranties, and indemnities apply to the Changes as apply to the original Key Details.
(e) For the avoidance of doubt, any change to the Key Details that is reasonably considered by the Provider to be a change in the scope of the Key Details, will be considered a Change.
6 THIRD PARTY SOFTWARE AND TERMS
(a) The Client acknowledges and agrees that third party terms and conditions (Third Party Terms) may apply to use of the Solution including for provision of any Additional Services.
(b) The Client agrees to any Third Party Terms applicable to any third party goods and services that are used in providing the Solution and the Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(c) The Provider will endeavour to notify the Client of Third Party Terms that apply to the Solution, in which case:
(i) the Client must immediately notify the Provider if it does not agree to such Third Party Terms; and
(ii) if the Provider does not receive a notice in accordance with clause 6(c)(i), the Client will be taken to have accepted those Third Party Terms, and the Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
(d) The Client acknowledges and agrees that if it does not agree to any Third Party Terms, this may affect the Provider’s ability to meet any agreed schedules for delivering the Solution.
6.2 THIRD PARTY SOFTWARE
(a) The Client acknowledges and agrees that issues can arise when data is uploaded to software, when data is transferred between different software programs, and when different software programs are integrated together. The Provider cannot guarantee that integration processes between the Software and other software programs or IT systems will be free from errors, defects or delay.
(b) The Client agrees that the Provider will not be liable for the functionality of any third party goods or services, including any third party software, or for the functionality of the Software if the Client integrates it with third party software, or changes or augments the Software, including by making additions or changes to the Software code or by incorporating APIs into the Software.
(c) If the Client adds third party software or software code to the Software, integrates the Software with third party software, or make any other changes to the Software, including the Software code (User Software Changes), then:
(i) the Client acknowledges and agrees that Client Solution Changes can have adverse effects on the Solution, including the Software;
(ii) the Client indemnifies the Provider in relation to any loss or damage that arises in connection with the Client Solution Changes;
(iii) the Provider will not be liable for any failure in the Solution, to the extent such failure is caused or contributed to by a User Software Change;
(iv) the Provider may require the Client to change or remove Client Solution Changes, at the Provider’s discretion, and if the Provider does so, the Client must act promptly;
(v) the Provider may suspend the Client’s access to the Solution until the Client has changed or removed Client Solution Changes; and/or
(vi) the Provider may change or remove any Client Solution Changes, in its absolute discretion. the Provider will not be liable for loss of data or any other loss or damage the Client may suffer in relation to the Provider’s amendment to, or removal of, any User Software Change.
(b)
All Fees are paid in advance and non-refundable for change of mind.
7.2 TIME FOR PAYMENT
Unless otherwise agreed in writing:
(a)
if the Provider issues an invoice to the Client, payment must be
made by the time(s) specified on such invoice; and
(b)
in all other circumstances, the Client must pay for all goods and
services within 2 weeks of receiving an invoice for amounts payable.
7.3
ONLINE PAYMENT PARTNER
(a) The Company may use third-party online payment partner, currently Stripe (Online Payment Partner) to collect payments through the Website, for the Services.
(b) The processing of payments by the Online Payment Partner will be, in addition to this Agreement, subject to the terms, conditions and privacy policies of the Online Payment Partner. The Client can find these https://stripe.com/gb/legal/consumer .
(c) The Client agrees to release the Provider and its employees and agents in respect of all liability for loss, damage or injury which may be suffered by any person arising from any act or omission of the Online Payment Partner, including any issue with security or performance of the Online Payment Partner’s platform or any error or mistake in processing your payment.
(d) The Company reserves the right to correct, or to instruct its Online Payment Partner to correct, any errors or mistakes in collecting your payment.
7.4
FAILURE TO PAY
Unless otherwise agreed, the Provider may, in its absolute
discretion:
(a) not provide any part of the Solution until the Client has paid any fees or deposit payable in respect of such Services; and
(b) withhold delivery of any part of or all of the Solution until the Client has paid the invoice in respect of the Solution.
7.5 VAT
Unless otherwise indicated, the Fees do not include VAT. In relation to any VAT payable for a taxable supply by the Provider, the Client must pay the VAT subject to the Provider providing a tax invoice.
(a)
The Client grants to the Provider (and its Personnel) a
non-exclusive, royalty free, non-transferable, worldwide and irrevocable
licence to use the Client Data to the extent reasonably required to provide the
Solution.
(b)
The Client:
(i) warrants that the Provider’s use of Client Data as contemplated by this agreement will not infringe any third-party Intellectual Property Rights; and
(ii) indemnifies the Provider from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
8.2 PROVIDER IP
(a)
Unless otherwise expressly agreed in a Key Details, the Client will
not under this agreement acquire Intellectual Property Rights in any the Provider
IP or Developed IP.
(b)
Any Developed IP will be solely and exclusively owned by the Provider
and vest in the Provider immediately upon creation.
8.3 DEFINITIONS
For the purposes of this clause 8:
(a)
“Developed IP” means any materials
produced by the Provider in the course of providing the Solution including
documentation, reports, data, designs, concepts, know-how, information, advice,
opinions, emails, notes whether in draft or final form, in writing, provided
orally, either alone or in conjunction with the Client or others, and any
Intellectual Property Rights attaching to those materials.
(b)
“Provider IP” means all materials owned
or licensed by the Provider that is not Developed IP and any Intellectual
Property Rights attaching to those materials.
9 CONFIDENTIALITY and RESTRAINT
9.1 CONFIDENTIALITY
(a)
Except as contemplated by this agreement, a party must not and must
not permit any of its officers, employees, agents, contractors or related
companies to use or to disclose to any person any Confidential Information
disclosed to it by the other party without its prior written consent.
(b)
This clause does not apply to:
(i) information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence);
(ii) information required to be disclosed by any law; or
(iii) information disclosed by a party to its subcontractors, employees or agents for the purposes of fulfilling its obligations under this agreement (Additional Disclosees).
9.2 RESTRAINT
For the duration of the Term and 6 months thereafter, the Client must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of the Provider with which the Client had contact during the course of this agreement.
9.3 BREACH
If either party becomes aware of a suspected or actual breach of this clause 9 by that party or an Additional Disclosee, that party will immediately notify the other party and take reasonable steps required to prevent, stop or mitigate the suspected or actual breach.
10 PRIVACY and DATA PROTECTION
10.1
CLIENT DATA
(a) Words and phrases in this section shall have the meaning given to them by applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder); the General Data Protection Regulation ((EU) 2016/679) to the extent applicable in the UK and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and which are applicable to a party (Data Protection Legislation) and the terms “controller”, “processor”, “process” and “personal data” shall have the meanings given to those terms in such Data Protection Legislation.
(b) During and after the delivery of the Services, the Client agrees that the Provider will be processing personal data for its own purposes and as such will be a controller under the Data Protection Legislation and this includes (but is not limited to) the following purposes:
(i) the Provider providing Services;
(ii) the Provider and/or its subcontractors and third party suppliers use the contact details of the Client and the Client’s representatives to send marketing materials or other publications;
(iii) the Provider may process personal data concerning its other clients and contacts in other ways for its own business purposes;
(iv) the Provider may process and transfer personal data as necessary to effect a re-organisation of its business; and
(v) the Provider may share personal data with other legal or professional advisers used by us to provide the Client with legal or professional services.
(c) The Client’s instructions are taken to include the use by the Provider, where appropriate, of independent contractors and third party suppliers appointed by us for functions such as data and file storage, back-up, destruction, billing, debt collection, legal processing and the like, in accordance with the foregoing.
(d)
By accepting this agreement the Client gives positive consent for the Provider
to obtain, store and process information about the Client as described in this
clause 10.
(e) Each party shall comply with the terms of the Data Protection Legislation.
(b)
The Client agrees that where
necessary the Client will have satisfied relevant statutory ground under the Data Protection Legislation as
also undertaken necessary compliances, in connection with the processing,
before providing the Provider with personal data.
(c) The Client warrants, in relation to the personal information and all other data that it provides to Provider in connection with this agreement (Third Party Data), that:
(i) the Client has all necessary rights in relation to Third Party Data, such that the Services can be performed in respect of that data;
(ii) the Client is not breaching any Law by providing Provider with Third Party Data;
(iii) the Client has the requisite consent of its customers/patients and ensures compliance with the Data Protection Legislation where the Client is collecting and storing any sensitive data which may include:
· medical history and medical information, including past surgeries, past treatments etc.;
· records and details of prescriptions given and/or refused;
· past consultations, dates, doctors providing treatment;
· information such as weight, height, age, gender etc.; and
· history of drug consumption, medical or recreational.
(iv) Provider will not breach any Law by performing the Services in relation to any Third Party Data;
(v) there are no restrictions placed on the use of the Third Party Data (including by any Third Party Terms) and if there are any such restrictions, the Client has notified Provider of this, and Provider has agreed to perform the Services in respect of that data (being under no obligation to do so); and
(vi) Provider will not breach any Third Party Terms by performing the Services in relation to any Third Party Data.
(d) The Client agrees at all times to indemnify and hold harmless Provider and its officers, employees and agents from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those parties, where such loss or liability was caused or contributed to a breach of a warranty in clause 10.2(a).
(e)
The Client and the Provider acknowledge that in respect of any Third Party Data and for the purposes of the Data Protection
Legislation, the Client is the controller and the Provider is the processor.
(f)
The Client and the Provider will comply with the Data Protection
Legislation.
(g)
The Provider shall, in relation to any Personal Data processed in
connection with this clause 10.2
(i)
process that Personal Data only on written instructions of the Client
as detailed in Schedule 2, as updated from time to time;
(ii)
keep the Personal Data confidential;
(iii)
comply with the Client’s reasonable instructions with respect to
processing Personal Data;
(iv)
in case of transfer of any Personal Data outside of the UK the
transfer will be in accordance with the Data Protection Legislation, which
includes:
(A)
the transfer is to a country approved as providing an adequate level
of protection for Personal Data; or
(B)
there are appropriate safeguards in place for the transfer of
Personal Data; or
(C)
binding corporate rules are in place; or
(D)
one of the derogations for specific situations applies to the
transfer;
(v)
assist the Client at the Client’s cost in responding to any data
subject access request and to ensure compliance with its obligations under the
Data Protection Legislation with respect to security, breach notifications,
privacy impact assessments and consultations with supervisory authorities or
regulators;
(vi)
notify the Client without undue delay on becoming aware of a
Personal Data breach or communication which relates to the Provider’s or
Client’s compliance with the Data Protection Legislation;
(vii)
at the written request of the Client, delete or return Personal Data
(and any copies of the same) to the Client on termination of this agreement
unless required by the Data Protection Legislation to store the Personal Data;
and
(viii)
maintain complete and accurate records and information to
demonstrate compliance with this clause 10.2 and allow for audits by the Client
or the Client’s designated auditor.
(h)
The Provider shall ensure that they have in place appropriate
technical or organisational measures, to protect against unauthorised or
unlawful processing of Personal Data and against accidental loss or destruction
of, or damage to, Personal Data, appropriate to the harm that might result from
the unauthorised or unlawful processing or accidental loss, destruction or
damage and the nature of the data to be protected, having regard to the state
of technological development and the cost of implementing any measures. Such
measures may include, where appropriate:
(i)
pseudonymising and encrypting Personal Data;
(ii)
ensuring confidentiality, integrity, availability and resilience of
its systems and services;
(iii)
ensuring that availability of and access to Personal Data can be
restored, to the best extent possible, after an incident; and
(iv)
regularly assessing and evaluating the effectiveness of the
technical and organisational measures adopted by it.
(i)
The Client agrees that any subcontractor appointed under clause 3.6 is a third-party processor
of Personal Data under this agreement.
The Solution is made available to the Client strictly on an ‘as is’ basis. Without limitation, the Client acknowledges and agrees that the Provider cannot guarantee that:
(a) the Solution will be free from errors or defects;
(b) the Solution will be accessible at all times;
(c) messages sent through the Solution will be delivered promptly, or delivered at all;
(d) information received or supplied through the Solution will be secure or confidential; or
(e) any information provided through the Solution is accurate or true.
11.2 CORRECTION OF DEFECTS
(a)
The Provider will correct any errors, bugs or defects in the
Solution which arise during the Term, and which are notified to the Provider by
the Client unless the errors, bugs or defects:
(i) result from the interaction of the Solution with any other solution or any computer hardware or services not approved in writing by the Provider;
(ii) result from any misuse of the Solution; or
(iii) result from the use of the Solution by the Client other than in accordance with this agreement or the Documentation.
(b)
The Client agrees to provide the Provider and its Personnel
reasonable access to its premises, Personnel and IT systems to assist the Provider
in correcting any defects in the Solution.
11.3 EXCLUSION OF OTHER WARRANTIES
(a)
To the maximum extent permitted by applicable law, all express or
implied representations and warranties (whether relating to fitness for purpose
or performance, or otherwise) not expressly stated in this agreement are
excluded.
(a) (Liability) To the maximum extent permitted by applicable law, the Provider limits all liability in aggregate of all claims to the Client (and any third parties who encounter the services or goods through the Client’s business) for loss or damage of any kind, however arising whether in contract, tort, statute, equity, indemnity or otherwise, arising from or relating in any way to this agreement or any goods or services provided by the Provider to the amount paid by the Client to the Provider in or for 3 months preceding the date of the event giving rise to the relevant liability.
(b) (Indemnity) The Client indemnifies the Provider and its employees, contractors and agents in respect of all liability for any claim(s) by any person (including any third party who encounter the services or goods through the Client’s business) arising from the Client’s or the Client’s employee’s, client’s, contractor’s or agent’s:
(i) breach of any third party intellectual property rights;
(ii) breach of any term of this agreement;
(iii) negligent, wilful, fraudulent or criminal act or omission; or
(iv) use of the Solution.
(c) (Consequential loss) To the maximum extent permitted by law, under no circumstances will the Provider be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with this agreement or any goods or services provided by the Provider.
(d) (Unfair Contract Terms) To the extent that the provisions of any applicable law shall impose restrictions on the extent to which liability can be excluded under these T&Cs or a Scope of Work including, for the avoidance of doubt, the provisions of sections 3, 6 and 11 of the Unfair Contract Terms Act 1977 in the UK (and its equivalent in any other jurisdiction) relating to the requirement of reasonableness, the exclusions set out in this clause shall be limited in accordance with such restrictions. However, any exclusions of liability that are not affected by such restrictions shall remain in full force and effect.
(e) Nothing in this agreement shall exclude or limit a party’s liability for fraud or intentional unlawful conduct by a party, or death or personal injury resulting from a party’s negligence.
(a) The Client may notify the Provider that it would like to upgrade or downgrade its Subscription Tier at any time, and the Client must do so if the number of Licensed Users changes such that the Client’s use of the Solution falls into a new Subscription Tier.
(b) If the Client provides a notice under clause 13(a), or the Provider otherwise becomes aware that the Client’s use of the Solution has changed such that it falls into a new Subscription Tier, the Provider will:
(i) take reasonable steps to promptly provide the Client with access to the new Subscription Tier; and
(ii) in the monthly billing cycle immediately following the month in which the Client’s access to the new Subscription Tier was provided (First Access Month):
(A) charge the Client the new, relevant Subscription Fee for that subsequent month (Second Access Month), and each subsequent month (subject to another notice or change under this clause 13); and
(B) if the Subscription Fee for the Second Access Month is higher than in the First Access Month, then the Provider will charge the Client the new, relevant Subscription Fee for the proportion of the First Access Month that the Client had access to the new Subscription Tier, on a pro rata basis.
(c) For the avoidance of doubt, if the Client chooses to downgrade its Subscription Tier, the new Subscription Fees will kick in at the start of the next billing cycle, unless the Provider notifies the Client otherwise. the Provider generally does not pro-rate downgrades in between billing cycles, however the Provider reserves the right to from time to time.
(d) These Terms will be taken to be amended in accordance with any changes agreed in accordance with this clause 13.
14.1 TERMINATION by PROVIDER
(a) The Provider may end this agreement by providing notice to the Client.
(b)
This agreement will end 2 months after the day the notice is sent (the End
Date).
(c)
On the End Date, the Provider will provide an invoice to the Client
for:
(i)
any Fees for the Solution up to the End Date; and
(ii)
any pre-approved third party costs the Provider has incurred on the
Client’s behalf up to the End Date.
(together, the Outstanding
Amounts)
(d)
The Client will pay the Outstanding Amounts to the Provider within a
further 10 Business Days after the End Date, unless otherwise agreed in a
written payment plan between the parties.
(a)
If a party (the Notifying Party) considers that the other party
is in breach of this agreement (the Breach), the Notifying Party may
provide a notice to the other party.
(b)
The notice must include the nature and details of the Breach, with
reference to the relevant clause/s of this agreement. The Notifying Party may,
if it wishes to do so, make suggestions for resolving the Breach.
(c)
The other party will have 10 Business Days (or longer, in the Notifying Party’s
discretion) to rectify the Breach (the Rectification Period).
(d)
After the Rectification Period, the Notifying Party will:
(i)
if the Breach has been successfully rectified, notify the other party
that the agreement will continue; or
(ii)
if the Breach has not been successfully rectified, notify the other
party that this agreement is terminated (Termination for Breach Notice).
(e)
Following a Termination for Breach Notice, the parties will stop all
work under this agreement unless otherwise agreed.
(f)
Any disputes regarding termination under this clause must be dealt with
in accordance with clause 15. The indemnities, warranties and
liability caps in clause 12 will apply to any disputes and
resulting claims.
(g)
Where the Notifying Party is the Provider and the Provider provides a
Termination for Breach Notice, the Provider will provide along with such
notice, an invoice for any Outstanding Amounts. The Client will pay the Outstanding
Amounts to the Provider within 10 Business Days after the Termination for
Breach Notice is provided, unless the parties otherwise agree in writing to a
payment plan.
14.3 other consequences for termination
If this
agreement ends, in addition to the specific consequences set out in clause 14.1 or 14.2 (as applicable), the parties
will:
(a)
return all property and Confidential Information to the other party;
(b)
where applicable, the Client must remove the Software from all its
computer systems;
(c)
comply with all obligations that are by their nature intended to survive
the end of this agreement, including without limitation clauses 12 and 8; and
(d)
stop using any materials that are no longer owned by, or licensed to,
them under clause 3.3 and 8.
14.4
DATA BACKUP
(a)
Upon termination or expiry of this agreement, the Provider may delete
data and material associated with the Client, including Client Data, within 14
calendar days after
the end of the Term.
(b)
The Provider will not be able to recover any such data or content more
than 14 calendar days after the end of the Term, so it is recommended that the Client
backs up anything important to it.
(c)
The Provider will not be responsible to the Client, or any user, for,
and The Provider expressly disclaims any liability for, any cost, loss, damages
or expenses arising out the cancellation, termination or expiry of this
agreement and any loss of data.
15 if the parties have a dispute
(a) A party claiming that a dispute has arisen under or in connection with this agreement must not commence court proceedings arising from or relating to the dispute, other than a claim for urgent interlocutory injunction, unless that party has complied with the requirements of this clause.
(b) A party that requires resolution of a dispute which arises under or in connection with this agreement must give the other party or parties to the dispute written notice containing reasonable details of the dispute and requiring its resolution under this clause.
(c) Once the dispute notice has been given, each party to the dispute must then use its best efforts to resolve the dispute in good faith. If the dispute is not resolved within a period of 14 days (or such other period as agreed by the parties in writing) after the date of the notice, any party to the dispute may take legal proceedings to resolve the dispute.
(a)
Any notices required to be sent under this agreement must be sent via
email using the party’s email addresses set out in the Key Details and the email’s
subject heading must refer to the name and date of this agreement.
(b)
If no email address is stated in this agreement, the notice may be sent
to the email address most commonly used by the parties to correspond in
relation to this agreement at the time the notice is sent.
(c)
The notice will be considered to be delivered 24 hours after it was
sent, unless the sender has reason to believe the email failed to send or was
otherwise not delivered or received.
(i) act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
(ii) strike or other industrial action;
(iii) war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
(iv) decision of a government authority in relation to COVID-19, or other epidemic or pandemic,
to the extent the occurrence affects the Affected Party’s ability to perform the obligation.
(i) reasonable details of the Force Majeure Event; and
(ii) so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
(c) Subject to compliance with clause 17(b), the relevant obligation will be suspended during the Force Majeure Event to the extent that the obligation is affected by the Force Majeure Event.
(d) The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible and resume performing the relevant obligation.
18.1 GOVERNING LAW AND JURISDICTION
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
18.2 THIRD PARTY RIGHTS
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
18.3 AMENDMENTS
This agreement may only be amended in accordance with a written agreement between the parties.
18.4 WAIVER
No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
18.5 SEVERANCE
Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.
18.6 JOINT AND SEVERAL LIABILITY
An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.
18.7 ASSIGNMENT
A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.
18.8 COUNTERPARTS
This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
18.9 COSTS
Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.
18.10 ENTIRE AGREEMENT
This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.
18.11 INTERPRETATION
(a)
(singular and plural) words in the singular includes the
plural (and vice versa);
(b)
(gender) words indicating a gender includes the corresponding
words of any other gender;
(c)
(defined terms) if a word or phrase is given a defined
meaning, any other part of speech or grammatical form of that word or phrase
has a corresponding meaning;
(d)
(person) a reference to “person” or “you” includes an
individual, the estate of an individual, a corporation, an authority, an
association, consortium or joint venture (whether incorporated or
unincorporated), a partnership, a trust and any other entity;
(e)
(party) a reference to a party includes that party’s
executors, administrators, successors and permitted assigns, including persons
taking by way of novation and, in the case of a trustee, includes any
substituted or additional trustee;
(f)
(this agreement) a reference to a party, clause, paragraph,
schedule, exhibit, attachment or annexure is a reference to a party, clause,
paragraph, schedule, exhibit, attachment or annexure to or of this agreement,
and a reference to this agreement includes all schedules, exhibits, attachments
and annexures to it;
(g)
(document) a reference to a document (including this
agreement) is to that document as varied, novated, ratified or replaced from
time to time;
(h)
(headings) headings and words in bold type are for
convenience only and do not affect interpretation;
(i)
(includes) the word “includes” and similar words in any form
is not a word of limitation;
(j)
(adverse interpretation) no provision of this agreement will
be interpreted adversely to a party because that party was responsible for the
preparation of this agreement or that provision; and
(k) (currency) a reference to £, or “GBP”, is to pound sterling currency of Great Britain and reference to $, or “USD” is to dollar currency of the United States of America, unless otherwise agreed in writing.
In this agreement, capitalised terms have the meaning given to them in a Key Details, and the following phrases have the meaning set out below.
|
Term |
Definition |
|
Additional Services |
means the services listed in Schedule 3 of these Terms and Conditions. |
|
Business Day |
means a day, other than a Saturday, Sunday or Public Holiday in London, England. |
|
Confidential Information |
means information of or provided by a party that is by its nature is confidential information, is designated by that party as confidential, or that the other party knows or ought to know is confidential, but does not include information which is or becomes, without a breach of confidentiality, public knowledge. |
|
Client Data |
means files, data, information or any other materials, which is uploaded or inserted to the Software, or otherwise provided to the Provider, by the Client or its Licensed Users, and includes any Intellectual Property Rights attaching to such materials. |
|
Documentation |
means all manuals, help files and other documents supplied by the Provider to the Client relating to the Solution, whether in electronic or hardcopy form. |
|
Fees |
has the meaning given in clause 7.1(a) and includes the Setup Fee and Annual Fee set out in a Key Details. |
|
Intellectual Property Rights |
means any and all present and future intellectual and industrial property rights throughout the world (whether registered or unregistered), including copyright, trade marks, designs, patents, moral rights, semiconductor and circuit layout rights, trade, business, company and domain names, and other proprietary rights, trade secrets, know-how, technical data, confidential information and the right to have information kept confidential, or any rights to registration of such rights (including renewal), whether created before or after the date of this agreement. |
|
Key Details |
Means the table at the beginning of this agreement titled “Key Details”. |
|
Licensed User |
means a user of the Solution and Documentation who has been validly granted access to the Software and Documentation by the Client in accordance with clause 3.2. |
|
Personnel |
means, in respect of a party, its officers, employees, contractors (including subcontractors) and agents. |
|
Solution |
has the meaning given in clause 3.1(a). |
|
User |
means the Client’s Licensed Users, its Personnel, and any other third party who are granted access to the Software or Documentation by the Client, its Licensed Users or its Personnel. |
Schedule 1 Service Level Agreement
1 SUPPORT SERVICES
(a)
The Provider will use its best endeavours to provide the Support in
accordance with the Service Levels in Table 1 (Service Levels).
Table 1: Service Levels
|
Priority |
Response Target |
Resolution Target |
|
Critical |
4 business hours |
24 hours |
|
High |
6 business hours |
48 hours |
|
Medium |
8 business hours |
72 hours |
|
Low |
24 business hours |
120 hours |
(b)
The severity and priority of calls are classified as follows:
(i) Critical – business critical issues only, which prevent the majority of users from accessing the Services or where the module functionality is materially restricted with no feasible workaround
(ii) High –Solution issues affecting multiple users and issues affecting business operation, which prevents a small group of users from accessing the Services or where the module functionality is restricted but a feasible workaround exists
(iii) Medium – notification of image/data capture issues/trends; non-critical general, operation and technical enquiries
(iv) Low – feedback; non-essential system set-up changes, no compliance or cash flow impact.
2 Client acknowledgments
The Client acknowledges and agrees that:
(a) Service Levels do not apply to any performance or availability issues arising from:
(i) factors outside our reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to our data centres, including at your site or between your site and our data centre);
(ii) any information technology systems, hardware or software not provided by the Provider;
(iii) the Client failing to implement and maintain the Dependencies;
(iv) the Client utilising the Solution contrary to the Provider’s advice on utilisation of the Solution (including any policies or guidelines provided to the Client by the Provider or a Third Party Service);
(v) during or with respect to a preview, pre-release, beta test or trial versions of the Solution (including any particular feature);
(vi) the Client or a User’s action or inaction to a reasonable request from the Provider in relation to an issue; or
(vii) the Client or a User’s failure to maintain and following appropriate security practices,
(b) the Provider cannot guarantee that all issues, problems or security threats will be identified;
(c) final solution may differ from initial diagnosis;
(d) priority levels are determined at the Provider’s sole discretion;
3 DOWNTIME
(a) Service Levels are indicative and if the Provider is not able to meet a Service Level set out in this clause, for any reason, the Client will not have any claim for delay and the Provider will use its best endeavours to respond to or resolve the relevant issue as soon as possible; and
(b)
The Provider will use its best endeavours to provide the Client with
8 hours prior notice of any downtime.
Table 2: Unscheduled
Downtime Credits
|
Unscheduled Downtime |
Credit |
|
Less than 4 hours |
Nil |
|
Between 4 and 24 hours |
5% of one twelfth of the Annual Fee |
|
More than 24 hours |
10% of one twelfth of the Annual Fee |
4
SUPPORT SERVICE HOURS AND CONTACT METHODS
(a) Unless otherwise set out in this Schedule 1, the Support Services will be available from 9am – 6pm on Business Days (Business Hours).
(b) All Response Times and Resolutions Targets do not include any time that falls outside a Business Hours.
(c) Support Services can be accessed via the following methods:
|
Assistance Method |
Details |
|
Support Portal |
app.leadignition.io (sign in and use the “help” section. |
|
Email |
Schedule 2
Processing of Personal Data by
the Provider
1 SCOPE
Personal data may be collected, stored and analysed on the Provider’s systems or the Client’s systems only and not within the sole control of the Provider at any time.
2 NATURE
Electronically, automatically through the Solution.
3 PURPOSE OF PROCESSING
To provide the Services as contracted between the Provider and the Client and in accordance with this agreement.
4 DURATION OF PROCESSING
The duration of this agreement only.
5 CATEGORIES OF PERSONAL DATA
Name, email address, date of birth, web session activity, transactional data, campaign (e.g. Email) activity, health related information of the Client’s customers such as medical history and medical information, including past surgeries, past treatments etc., records and details of prescriptions given and/or refused, past consultations, dates, doctors providing treatment, information such as weight, height, age, gender etc.; and history of drug consumption, medical or recreational.
6 CATEGORIES OF DATA SUBJECT
Employees and contractors of the Client, , customers of the Client, employees and contractors of the Client’s customers.
Schedule 3 Additional Services
The Client may anytime
during the Term, opt into any of the additional services outlined below (such
as Phone and Email), and when the Client opts in for any additional service,
you activate a “Wallet”. Wallet holds credits that are deducted from when you
use any additional service listed below (such as Phone and Email). To load
credits into your wallet, the Provider charges your business card on file.
Wallet charges occur when wallet balances drop below a minimum amount.
|
Item
# |
Description |
Price
(in
USD) |
|
|
|
|
|
1 |
Emails |
$0.675
for 1000 emails |
|
2 |
Email Validation |
$2.5
for 1000 Email Validations |
|
3 |
Texts |
≈$0.005 |
|
4 |
Outbound Calls |
$0.0140
/ minute (From local and toll-free numbers) |
|
5 |
Inbound Calls |
$0.0085
/ minute (To local numbers, $0.0220 to toll-free numbers) |
|
6 |
Local Phone Number |
$1.15
/ month |
|
7 |
Toll Free Phone
Number |
$2.15
/ month |
|
8 |
Website hosting |
$10
Per Month |
|
9 |
Domain Associated
Email Account via Outlook or Gmail |
≈
£6 per month |
|
10 |
Stripe Transaction
Fees (Website & Invoice Transactions via CRM) |
≈
1.5% + 20p |
|
11 |
Domain Costs |
TBC
Depending on name |
Why do we use a “Wallet”?
Unlike
other companies, the Provider only charges you for the amount equivalent to the
additional services you use. Most companies will charge you based on a number
of SMS or Emails, like say 500 SMS per month for £40/mo. But what if you don't
send any SMS or only 100 SMS? You just paid for the SMS you did use.
This is why the Provider uses a
Wallet and charges are based on your usage only. You pay low prices and only
for what you use.
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