Living With Ltd Terms & Conditions

(Updated 19th July 2018)

Schedule

Parties

(1)    Living With Limited, a company incorporated and registered in England and Wales with company number 10818605 whose registered office is at 10 Queen Street Place, London, EC4R 1AG (“the Supplier”)

(2)    You (“the Customer”)

Background

(a)    The Supplier has developed certain software applications and platforms which it makes available to customers via the internet on a subscription basis for the purpose of enabling customers to provide patients with access to mobile apps to help them manage their conditions and enable them to monitor these patients.

(b)    The Customer wishes to use the Supplier’s services to provide these condition management tools to patients.

(c)    The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier’s services subject to the terms and conditions of this Agreement.

Medical Device Statement

In line with MHRA guidance, and health sector best practice, this platform has been classified in the lesser e-health system (NHS SCCI 0129) category and is not classified as a medical device (ISO14971).

Agreed Terms

1. Interpretation

1.1    The definitions and rules of interpretation in this clause apply in this Agreement.

Customer Account: the right to use the Services in accordance with the terms of this Agreement.

Aggregated Data: the aggregated data, information and content entered or provided by the Patient and the aggregated data, information and content entered or provided by the Customer from a patient’s records

Authorised User(s): the Customer, and in the case of a corporate Customer, its duly authorised officers, and officers and/or employees of the Customer appointed, authorised and/or identified pursuant to clause 2.4 as administrator(s), and/or moderator(s), and/or observer(s) for the purposes of an Account.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Billing Cycle: in the case of services paid for by subscription, a recurring period of one year in duration (depending on the subscription plan selected).

Change of Control: shall be defined as a change in the beneficial ownership of more than 70% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of a company, and controls, controlled and the expression change of control shall be construed accordingly.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.

Copyright shall mean the exclusive right to do the acts specified by the Copyright, Designs and Patents Act 1988 (as amended) in respect of any original literary, dramatic, musical and artistic works, sound recordings, films or broadcasts, as well as any equivalent right subsisting in any other territory worldwide.

Customer Data: the data, information and content entered or provided by the Customer for the purpose of using the Services or the Supplier on the Customer’s behalf for the purpose of facilitating the Customer’s use of the Services.

Customer’s Trade Mark(s) shall mean the trade mark or trade marks used by customers for customising and/or branding the Services.

Database shall mean a collection of independent works, data or other materials which are arranged by either party or their employees in a systematic or methodical way, and are individually accessible by electronic or other means.

Database rights shall mean the right of the maker of a database to prevent extraction and/or re-utilisation of the whole or of a substantial part, of the contents of that database.

Documentation: the document entitled ‘Living With User Guide’ made available to the Customer by the Supplier online via http://www.livingwith.health /or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date of commencement of this Agreement.

Initial Subscription Term: the initial term of this Agreement.

Intellectual property rights shall include but shall not be limited to Trade Marks, Trade Names, Passing off rights, Goodwill, Copyright, Designs, Patents, Confidential information, and Database rights, or any one or more of the foregoing rights.

Normal Business Hours: 9.00 am to 6.00 pm local UK time, each Business Day.

Renewal Period: the period described in clause 14.1.

Patient(s): participant(s) (including guest users/users referred to in Schedule 1) making use of the mobile apps or software (as described in Schedule 1 to this Agreement, or added by the Supplier at a future date) as part of the Services.

Patient data: the data, information and content entered or provided by the Customer’s patients in the course the Customer’s use of the Services.

Services: the subscription services provided by the Supplier to the Customer under this Agreement via http://www.livingwith.health or any other website notified to the Customer by the Supplier from time to time, as more particularly described in the Documentation.

Software: the online software applications provided by the Supplier as part of the Services.

Subscriptions and Subscription Fee(s): the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as specified by the Supplier at http://www.livingwith.health and/or in separate communications with the Customer from time to time.

Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Policy: the Supplier’s policy for providing support in relation to the Services as made available at http://www.livingwith.health or such other website address as may be notified to the Customer from time to time.

User Subscription: the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle the Customer to access and use the Services and the Documentation in accordance with this Agreement, with their patients.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

1.2    Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3    A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.

1.4    A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5    Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6    Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7    A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

1.8    A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

1.9    A reference to writing or written includes faxes and e-mail.

1.10    References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

2. Accounts and Subscriptions

2.1    Subject to the Customer purchasing the Customer Account in accordance with this clause 2 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to use the Services and the Documentation during the Subscription Term solely for the purposes of the Customer’s management of the patient’s condition.

2.2    The Customer will use a Customer Account (for which payment of a Subscription Fee is a binding and enforceable condition of this Agreement) terms, conditions, features and other particulars of which are set out in Schedule 1 to this Agreement; which terms, conditions, features and particulars constitute binding and enforceable terms of this Agreement;

2.3    The Customer may use only one Customer Account at any given time.

2.4    The Customer shall have the right (subject to the features specified by the type of account acquired or subscribed to by the Customer as described in Schedule 1) to appoint, authorise and identify officers and/or employees of the Customer as administrator(s), and clinician(s) for the purposes of the Account in any numbers permitted and/or subject to any limits specified by the account.

2.5    Any officers and/or employees appointed, authorised and identified by the Customer as administrator(s), and/or clinician(s) for the purposes of the account shall have the right to use the account as administrator(s), and/or clinician(s), but not otherwise.

2.6    The Customer may upgrade its account in accordance with the terms and conditions set out in Schedule 1.

2.7    The Customer undertakes that:

(a)    The Customer shall keep a secure password for his/her use of the Services and Documentation, that such password shall be changed no less frequently than every twelve months and shall keep his/her password confidential at all times;

(b)    The Customer shall permit the Supplier to audit the Services in order to establish the name and password of the Customer. Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;

(c)    if any of the audits referred to in clause 2.7(b) reveal that a password has been provided to an unauthorised third party, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such password and the Supplier shall not issue any passwords to any such third-party; and

(d)    if any of the audits referred to in clause 2.7(b) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the Subscription Fee levels specified by the Supplier within 10 Business Days of the date of the relevant audit.

2.8    The Customer shall not access, store, introduce any links to, distribute or transmit any Viruses during the course of its use of the Services, or any material during the course of its use of the Services that:

(a)    is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b)    facilitates illegal activity;

(c)    depicts sexually explicit images;

(d)    promotes unlawful violence;

(e)    is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f)    in a manner that is otherwise illegal or causes damage or injury to any person or property;

(g)    is otherwise inappropriate;

(h)    assists, incites or encourages any of the foregoing;

and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

2.9    The Customer shall not:

(a)    attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) and/or any Supplier content/data in any form or media or by any means; or

(b)    attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

(c)    access all or any part of the Services and Documentation and/or Supplier content/data in order to build a product or service which competes with the Services and/or the Documentation; or

(d)    subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation and/or Supplier content/data available to any third party except the Authorised Users and Patients, or

(e)    attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; and

2.10    The Customer shall use its best endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and/or Supplier content/data and, in the event of any such unauthorised access or use, promptly notify the Supplier.

2.11    The Customer shall not use its Account or the Services for the purposes of “spamming” and shall use its best endeavours to prevent any use by third parties for the purposes of “spamming”.

2.12    The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any employee, agent, subsidiary or holding company of the Customer.

3. Services

3.1    The Supplier shall, during the continuation of this Agreement, provide the Services appropriate to the type of Customer Account (as specified in Clause 2.2 and Schedule 1 of this Agreement) and make available the Documentation to the Customer on and subject to the terms of this Agreement.

3.2    The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a)    planned maintenance carried out during the maintenance window of 6.00 am to 8.00 am UK time on Saturdays and Sundays; and

(b)    unscheduled maintenance performed outside the hours stated in this Clause 3.2 paragraph (a), provided that the Supplier has used reasonable endeavours to give the Customer as much advance notice as is reasonably practicable.

3.3    The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours, insofar as is reasonably practicable in accordance with the Supplier’s Support Policy in effect at the time that the Services are provided. The Supplier may amend the Support Policy in its sole and absolute discretion from time to time. Given the speed of change in technology and other circumstances the Supplier’s Support Policy is intended solely to be a guide, and has no contractual force. The Customer may purchase enhanced support services separately at the Supplier’s then current rates.

4. Customer Data

4.1    The Customer shall own all right, title and interest in and to all of the Customer Data, but not the directly inputted Patient data or the Aggregated Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

4.2    The Supplier shall follow its archiving procedures for Customer Data and Patient Data as set out in its Back-Up Policy available at http://www.livingwith.health or such other website address as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).

4.3    The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data, Patient Data and Aggregated Data available at http://www.livingwith.health or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.

4.4    Subject to clause 4.2 the Supplier shall use reasonable commercial endeavours to ensure that no Customer Data, Patient Data or Aggregated Data is inadvertently or accidentally accessed by any third party, but the Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data resulting from the inadvertent or accidental access by such third parties.

4.5    The Customer undertakes to use its best endeavours to ensure that all rights and permissions needed to use the Services to communicate with any third parties in order to obtain any Data in connection with the Services have been obtained, and that the said communications are otherwise compliant with national laws and regulations. The Supplier is not responsible for any actions the Customer may take with respect to the said communications.

4.6    The Customer undertakes to use its best endeavours to ensure that all rights and permissions needed to use that Data in connection with the Services have been obtained, and that use of the Data is otherwise compliant with national laws and regulations. The Supplier is not responsible for any actions the Customer may take with respect to the Customer Data, including sharing it publicly.

4.7    The Customer acknowledges that, in order to ensure compliance with legal obligations, the Supplier may be required to review certain Customer data submitted to the Services to determine whether it is illegal or whether it violates the provisions of this Agreement (such as when unlawful content is reported to the Supplier). The Supplier may also modify, prevent access to, delete, or refuse to display data that it believes violates local law or the provisions of this Agreement. However, the Supplier otherwise has no obligation to monitor or review any data submitted to the Services.

4.8    If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

(a)    the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the Services and the Supplier’s other obligations under this Agreement;

(b)    the Customer shall ensure that the Customer is entitled to use and/or transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer’s behalf;

(c)    the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(d)    the Supplier shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and

(e)    each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

5. Third Party Providers

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier exercises no control over the said third parties or their websites, and makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier. The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available or accessible via the Services.

6. Supplier’s Obligations

6.1    The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

6.2    The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, the Supplier:

(a)    does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and

(b)    is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.3    This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

6.4    The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

7. Customer’s Obligations

7.1    Where the Customer is an incorporated entity, the Customer hereby warrants that it is validly formed and existing under the laws of its jurisdiction of formation, and in the case of officers or agents acting on behalf of the Customer, the officer or agent hereby represents that he/she is duly authorised to bind the Customer in this Agreement.

7.2    Where the Customer is a private individual, the Customer hereby warrants that he/she is a minimum of 18 years of age and has legal capacity to enter into this Agreement.

7.3    Where a Patient is under 18 years of age the Customer is solely responsible for ensuring that any consents (including but not limited to the consent of a parent, guardian or recognised supervising adult, as well as the consent of the owner of any computer/other telecommunications device used, and/or the consent of the owner/subscriber of the telecommunications connection used) which may be necessary, have been obtained. The Customer also bears a special responsibility for ensuring that a respondent under 18 years of age is not exposed to inappropriate material including, in particular, material of the types described in clause 2.8.

7.4    Customer Accounts may only be used by one individual or incorporated entity acting through one or more of its authorised officers or employees. A Customer Account is particular to the Customer who may not share his/her account with any third party who is not an authorised officer or employee of the Customer.

7.5    The Customer shall ensure that any officer(s) or employee(s) authorised to use a Customer Account is/are identified either as administrator(s), clinician(s) for the purposes of the Account (and therefore is/are respectively duly authorised to act in the identified capacity), and that the said officer(s) or employee(s) is/are made fully aware of the Customer’s obligations and the terms of this Agreement.

7.6    The Customer has sole responsibility for safeguarding its password and any other credentials and data used by the Customer to access the Customer Account, the Services and any data used in the services. This obligation and responsibility is maintained irrespective of any access exercised by the Customer in a public Wi-Fi area. The Customer is reminded of the inherent risks in such public areas to the security of any password/other credentials, as well as any data used in accessing the Account and the Services.

7.7    The Customer shall ensure that its password is changed frequently and in any event not less than every twelve months, and shall use a unique password of suitable strength that the Customer does not use anywhere else or for any other purpose.

7.8    The Customer has sole responsibility for any activity occurring in the Customer’s account, whether or not the Customer authorised that activity.

7.9    The Customer undertakes to notify the Supplier immediately on being made aware of any unauthorised access to the Customer’s Account

7.10    The Customer shall use its best endeavours to keep its own credentials, details and data (including e-mail addresses, contact details and payment details) accurate and up-to-date.

7.11    The Customer shall also:

(a)    provide the Supplier with:

(i)    all necessary co-operation in relation to this Agreement; and

(ii)    all necessary access to such information/data as may be required by the Supplier;

in order to provide the Services, including but not limited to Customer Data and Patient Data, security access information and configuration services;

(b)    comply with all applicable laws and regulations with respect to its activities under this Agreement;

(c)    carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d)    use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any misuse which is in breach of this Agreement;

(e)    obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;

(f)    ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;

(g)    operate and maintain suitable anti-virus software on all equipment and systems used by the Customer;

(h)    carry out its own regular virus checks and firewall protection;

(i)    make its own contingency arrangements to cover system or operational failures or suspension;

(j)    be solely responsible for procuring and maintaining its computer systems, all network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet or caused by, arising from or relating to any malfunctioning or misuse of the Customer’s computer systems;

(k)    comply generally with the provisions of this Agreement.

8. Intellectual Property and Licenses

8.1    The Supplier acknowledges and agrees that the Customer owns or has the right to grant licences in, all intellectual property rights in the Customer Data, and in the trade marks and/or branding and/or any design features and any other Intellectual Property rights which may be used by the Customer in respect of the customisation of the services.

8.2    The Customer acknowledges and agrees that the Supplier owns all intellectual property rights in the Services, any content/data provided by the Supplier and the Documentation and the Aggregated Data.

8.3    The Supplier and The Customer both acknowledge and agree that the Patient owns their own individual inputted data.

8.4    The Supplier hereby grants to the Customer a limited copyright and other intellectual property licence to view, access and save to the customer’s individual storage medium, retrieve, display on a computer screen, print and use via the Internet or other electronic means of communication any images, text, information or data displayed or supplied by the Supplier in the course of the provision of the Services, provided the Customer’s viewing, access, retrieval, display, printing and use is necessary for the Customer’s use of the Services and is otherwise in accordance with the terms of this Agreement.

8.5    The Customer shall not use any of the images, text, information or data referred to in clause 8.3 or any part thereof for any purpose other than for the Customer’s use of the Services, nor shall the Customer have any right to grant any sub-licences in respect of the said material.

8.6    Insofar as it may be necessary to download or access any software for the purposes of providing/accessing any of the services, the Supplier hereby grants to the Customer on and subject to the terms and conditions of this Agreement a non-exclusive, non-transferable licence to access the Software through the Living With website and to use the Software solely for the purposes of accessing and using the Services.

8.7    The Customer shall not use the software referred to in clause 8.3 or any part or feature thereof for any purpose other than for the Customer’s use of the Services, nor shall the Customer have any right to grant any sub-licences in respect of the said software.

8.8    The Customer hereby grants to the Supplier an exclusive, worldwide, perpetual, royalty free licence in respect of the Copyright and other intellectual property rights to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit the Customer’s Data provided the said actions are necessary for the Supplier’s provision of the Services.

8.9    The licence referred to in clause 8.7 above includes a right enabling the Supplier to grant sub-licences in respect of the various rights referred to in clause 8.7 in favour of third parties selected by the Supplier, provided the said sub-licences are necessary to enable the Supplier to provide the Services.

8.10    The Customer hereby grants to the Supplier a worldwide, perpetual, royalty free licence to use the Customer’s Data in aggregate for marketing purposes.

8.11    The licences and rights to sub-license referred to in clause 8.7, 8.8, 8.9 and 8.10 shall continue after the termination of this Agreement.

8.12    The Customer hereby warrants to the Supplier that:

(a)    the Customer is the owner of the trade marks and/or branding and/or any design features and any other Intellectual Property rights used by the Customer in respect of the customisation of the Services, or has the legal right as a licensee to use and grant a licence in respect of the said trade marks and/or branding and/or any design features and any other Intellectual Property rights;

(b)    the Customer has not granted, and will not during the continuance of this Agreement grant, to any third party any rights which are inconsistent with the rights granted under this Agreement;

(c)    the Customer is not aware of any third party rights in respect of the said trade marks and/or branding and/or any design features and any other Intellectual Property rights which would prevent the exercise by the Supplier of any of the rights granted under this Agreement;

(d)    the exercise by the Supplier of the rights under this clause require no governmental approvals.

8.13    Each party to this Agreement shall from time to time do all such acts and execute all such documents as may reasonably be necessary in order to give effect to the provisions of this clause 8.

9. Charges and Payment

9.1    The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 9.

9.2    The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:

(a)    its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:

(i)    on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii)    subject to clause 14.1, on each anniversary of the Effective Date or next scheduled payment due date for the Subscription Fees payable in respect of the next Renewal Period;

(b)    its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:

(i)    on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(ii)    subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date or next scheduled payment due date for the Subscription Fees payable in respect of the next Renewal Period,

and the Customer shall pay each invoice within 30 days after the date of such invoice.

9.3    If the Supplier has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Supplier:

(a)    the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b)    interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.4    All amounts and fees stated or referred to in this Agreement:

(a)    shall be payable in pounds sterling;

(b)    are, subject to clause 13.4(b), non-cancellable and non-refundable;

(c)    are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.

9.5    The Supplier shall be entitled to increase the Subscription Fees payable at the start of each Renewal Period upon prior notice to the Customer in accordance with the notice periods in clauses 9.7 and 9.8.

9.6    In the case of Annual subscriptions/Billing cycles, the Supplier shall give not less than 60 days’ notice prior to the end of the Billing cycle of any increase in Subscription Fees.

9.7    Local taxes: the Customer shall have responsibility for the payment of all local taxes incurred and which may be payable as a result of the Customer’s subscription.

10. Proprietary Rights

10.1    Subject to the provisions of clause 8 the Customer acknowledges and agrees that the Supplier owns all intellectual property rights in the Services, any content/data provided by the Supplier and the Documentation and the Aggregated Data. Except as expressly stated herein and in clause 8, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, content/data provided by the Supplier or the Documentation.

10.2    The Supplier confirms that it has all the rights in relation to the Services, any content/data provided by the Supplier and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

10.3    Subject to the provisions of clause 8 the Supplier acknowledges and agrees that the Customer owns all intellectual property rights in the Customer Data and the trade marks and/or branding and/or any design features and any other Intellectual Property rights used by the Customer in respect of the customisation of the services, or has the legal right as a licensee to use and grant a licence in respect of the said trade marks and/or branding and/or any design features and any other Intellectual Property rights relating to the aforesaid.

11. Confidentiality

11.1    Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:

(a)    is or becomes publicly known other than through any act or omission of the receiving party;

(b)    is Customer Data which is publicly disclosed in the course of the use or provision of the Services;

(c)    was in the other party’s lawful possession before the disclosure;

(d)    is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

(e)    is independently developed by the receiving party, which independent development can be shown by written evidence; or

(f)    is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

11.2    Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.

11.3    Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

11.4    Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

11.5    The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.

11.6    The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7    This clause 11 shall survive termination of this Agreement, however arising.

11.8    No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

12. Indemnity

12.1    The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:

(a)    the Customer is given prompt notice of any such claim;

(b)    the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

(c)    the Customer is given sole authority to defend or settle the claim.

12.2    The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, any United Kingdom copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:

(a)    the Supplier is given prompt notice of any such claim;

(b)    the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and

(c)    the Supplier is given sole authority to defend or settle the claim.

12.3    In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.4    In no event shall the Supplier, its officers, employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

(a)    a modification of the Services or Documentation by anyone other than the Supplier; or

(b) .   the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

(c)    the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

12.5    The foregoing and clause 13.4(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s officers’, employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

13. Limitation of Liability

13.1    This clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

(a)    arising under or in connection with this Agreement;

(b)    in respect of any use made by the Customer of the Services and Documentation or any part of them; and

(c)    in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

13.2    Except as expressly and specifically provided in this Agreement:

(a)    the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, its officers and/or employees, and for conclusions drawn from such use or from any decisions made as a result of any conclusions drawn. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer or its officers/employees or the Customer’s respondents in connection with the Services, or any actions taken by the Supplier at the Customer’s direction or at the direction of the Customer’s officers/employees;

(b)    all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and

(c)    the Services and the Documentation are provided to the Customer on an “as is” basis.

13.3    Nothing in this Agreement excludes the liability of the Supplier:

(a)    for death or personal injury caused by the Supplier’s negligence; or

(b)    for fraud or fraudulent misrepresentation.

13.4    Subject to clause 13.2 and clause 13.3:

(a)    the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or inaccessibility or corruption of data or information, any damage to systems, software or equipment, or pure economic loss, howsoever any of the aforesaid is caused, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

(b)    the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.

13.5    The Supplier shall not be liable for any viruses or corrupted/infected software, data or information that may be inadvertently transmitted in the course of the provision of the Services, or any loss or damage arising therefrom.

14. Term and Termination

14.1    This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed at the end of each Billing cycle (each a Renewal Period), unless:

(a)    The Customer notifies the Supplier by way of the Customer’s online account management page, or by contacting the Supplier’s customer support team of the termination of its account, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period during which the notification was issued; or

(b)    either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(c)    otherwise terminated in accordance with the provisions of this Agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

14.2    Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if one of the following events occurs:

(a)    the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

(b)    the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(c)    the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

(d)    the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(e)    the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f)    a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(g)    an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

(h)    the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

(i)    a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j)    a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 30 days;

(k)    any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2(d) to clause 14.2(j) (inclusive);

(l)    the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;

(m)    there is a change of control of the other party.

14.3    The Supplier may further terminate this Agreement or temporarily suspend the provision of the services on the occurrence of any of the following events:

(a)    The Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

(b)    the Customer uses the Services in a way that causes legal liability to the Supplier; or

(c)    the Customer uses the Services in a way that disrupts others’ use of the Services; or

(d)    the Supplier is compelled to conduct investigations into suspected misconduct on the part of the Customer.

14.4    On Termination of this Agreement for any reason:

(a)    all licences, except for the licences and rights to sub-license referred to in clause 8.7, 8.8, 8.9, 8.10 and 8.11, granted under this Agreement shall immediately terminate;

(b)    subject to the provisions of clause 8.7, 8.8, 8.9, 8.10 and 8.11, both parties shall cease use of any and all intellectual property and related rights licensed by the other party to this Agreement;

(c)    subject to the provisions of clause 8 and this clause 14.4, each party shall return and/or make no further use of any services, data, information, content, equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

(d)    subject to the provisions of clause 8 the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and

(e)    any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.

15. Force Majeure

The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

16. Conflict

If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedule, the provisions in the main body of this Agreement shall prevail.

17. Variation

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

18. Waiver

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

19. Rights and Remedies

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

20. Severance

20.1    If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

20.2    If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

21. Entire Agreement

21.1    This Agreement, and any documents referred to in it, constitute the whole Agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover.

21.2    Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

22. Assignment

22.1    The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

22.2    The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

23. No Partnership or Agency

Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

24. Third Party Rights

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

25. Notices

25.1    Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number, or sent by e-mail to other party’s principal e-mail address, as set out in this Agreement.

25.2    A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). A notice sent by e-mail shall be deemed to have been received at the time of acknowledgement/response by the recipient.

26. Governing Law

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

27. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims), and accordingly submits to that jurisdiction.

 

This Agreement has been entered into and commences on the date on which the Supplier notifies the Customer of the commencement of the Customer’s Account. .