TERMS AND CONDITIONS OF IMPLEMENTATION AND SOFTWARE SERVICES
- User Subscriptions.
- Additional User Subscriptions.
- Customer data.
- Third party providers.
- Supplier’s obligations.
- Customer’s obligations.
- Charges and payment.
- Proprietary rights.
- Limitation of liability.
- Term and termination.
- Force majeure.
- Entire agreement.
- No partnership or agency.
- Third party rights.
- Governing law and jurisdiction.
THE DATE OF THIS AGREEMENT is the earlier of either the date the agreement is signed or the date the customer acknowledges and accepts the contractual arrangements via GP Access’s online order form.
(1) GP Access Limited, a company incorporated and registered in England and Wales with company number 07814069 whose registered office is The Manor House, 70 Main Street Cossington, Leicester, LE7 4UW (the Supplier); and
(2) [The contracting organisation] a registered body in England and Wales with registration number or assigned code on file [as applicable] whose registered office is at [address on file] (the Customer).
(A) The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet for the purpose of allowing health professionals to access and view information input by patients.
(B) The Customer wishes to use the Supplier’s service in its business operations.
(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier’s service subject to the terms and conditions of this agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
|“Authorised Users”||employees of the Customer who are authorised under this agreement by the Customer and/or Supplier to use the Services and the Documentation.|
|“Business Day”||any day which is not a Saturday, Sunday or public holiday in the UK.|
|“Confidential Information”||information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.4.|
|“Customer Data”||any data input by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of or in the course of using the Services or facilitating the Customer’s use of the Services.|
|“Data Drop”||any data input by the Patient which is then accessible to the Authorised Users from time to time.|
|“Documentation”||the documents made available to the Customer by the Supplier which sets out a description of the Services and the user instructions for the Services.|
|“Effective Date”||the date of this agreement.|
|“Patients”||the patients of the Customer and/or other members of the public who are authorised under a separate agreement with the Supplier to use the Services.|
|“Intellectual Property Rights”||patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|“Initial Subscription Term”||Has the meaning given on the front sheet.|
|“Implementation Service”||Services detailed on the front sheet.|
|“Normal Business Hours”||9.00 am to 5.00 pm local UK time, each Business Day.|
|“Renewal Period”||the period described in clause 14.1.|
|“Services”||the subscription services provided by the Supplier to the Customer under this agreement.|
|“Software”||all the online software applications provided by the Supplier as part of the Services from time to time.|
|“Subscription Fee”||the fees payable by the Customer to the Supplier for the User Subscriptions, as set out in Schedule 1.|
|“Subscription Term”||has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).|
|“User Rank”||the level to which an Authorised User has access to the Services is dictated by the Supplier, a full breakdown and description of which can be found at Schedule 2.|
|“User Subscriptions”||the user subscriptions purchased by the Customer pursuant to clause 9.1 which entitle Patients to access and use the Services and the Documentation in accordance with this agreement.|
|“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 Words in the singular shall include the plural and vice versa.
1.6 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 for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.8 A reference to writing or written includes email and fax.
1.9 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.
- USER SUBSCRIPTIONS
2.1 The Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations (including the provision of healthcare services).
2.2 Authorised Users will have varying levels of access to the Services. Access will be decided by User Rank as detailed in Schedule 2.
2.3 The Customer undertakes that:
2.3.1 the maximum number of Patients that it directs to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
2.3.2 the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of Authorised Users detailed in Schedule 1 or as agreed from time to time;
2.3.3 it will not allow or suffer any Authorised User login to be used by more than one individual Authorised User unless such Authorised User login has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
2.3.4 each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than every 6 months and that each Authorised User shall keep his password confidential;
2.3.5 it shall maintain an up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier’s written request at any time or times;
2.3.6 no Authorised User shall exceed their allocated permissions associated with their User Rank by using the details of another Authorised User.
2.3.7 It shall put in place measures to ensure that Authorised Users effectively monitor communications delivered via the Services and process the same in a timely fashion to ensure the Patient receives the best possible healthcare services.
2.3.8 It shall make it clear to the Patients that the Services are not intended to provide medical advice.
2.3.9 It shall have in place and shall maintain such IT systems as are necessary for it to enjoy access to the Services.
2.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.4.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.4.2 facilitates illegal activity;
2.4.3 depicts sexually explicit images;
2.4.4 promotes unlawful violence;
2.4.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.4.6 is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to the Services where it finds any material that breaches the provisions of this clause.
2.5 The Customer shall not:
2.5.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) and except to the extent expressly permitted under this agreement, 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) 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
2.5.2 access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
2.5.3 use the Services and/or Documentation to provide services to third parties; or
2.5.4 subject to clause 1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
2.5.5 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause.
2.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
2.7 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2.8 The User Subscription must be paid in clear funds on the Effective Date.
3.1 Subject to clause 1 and clause 3.2, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing, by post or email to the addresses provided in this agreement or as otherwise notified from time to time. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request.If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in Schedule 1 and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1 planned maintenance; and
4.2.2 unscheduled maintenance performed outside Normal Business Hours, advance notice of which will only be given where reasonably practicable.
4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with access to a telephone helpline and online assistance during Normal Business Hours.
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. The Customer hereby grants an irrevocable, royalty free licence to the Supplier to enable the Supplier to use, for any purposes, the Customer Data in a patient anonymised form.
5.2 The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy. 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).
5.3 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:
5.3.1 the Customer acknowledges and agrees that the personal data will not be transferred or stored outside the EEA.
5.3.2 the Customer acknowledges and agrees that personal data may be transferred to third parties as part of the Provision of the Services (for example, if the Supplier sub-contracts all or part of the Services and/or if the Services are provided from a server owned by a third party).
5.3.3 the Customer shall ensure that it is entitled to 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;
5.3.4 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; and
5.3.5 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.
7.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation, and with reasonable skill and care.
7.2 The undertaking at clause 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, the 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 7.1. Notwithstanding the foregoing, the Supplier:
7.2.1 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
7.2.2 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.
7.3 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.
7.4 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.
7.5 The Supplier warrants that it will not Drop Data in a format which can identify Patients other than for the provision of the Services and that it will not store the same in a format which can identify Patients for longer than is needed to provide the Services.
7.6 For the avoidance of doubt, the Supplier shall store and use material in anonymised form, such that it cannot identify Patients for its own purposes, including without limitation, research and/or materials.
7.7 It is agreed that the Supplier shall provide the Implementation Services, as detailed on the front sheet, then the Supplier shall supply such Implementation Services as described at the link given on the front sheet and to the service level described at the link.
8.1 The Customer shall:
8.1.1 provide the Supplier with:
(a) all necessary co-operation in relation to this agreement; and
(b) all necessary access to such information, including any recent NHS Policy Documents, as may be required by the Supplier;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
8.1.2 to the fullest extent possible use its best endeavours to offer the Services to Patients and use the Services through its Authorised Users;
8.1.3 ensure that each Data Drop is reviewed by a clinically qualified Authorised User, or other clinically qualified member of staff where a clinically qualified Authorised User is not available, before any clinical decisions are made;
8.1.4 comply with all applicable laws and regulations with respect to its activities under this agreement;
8.1.5 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;
8.1.6 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
8.1.7 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;
8.1.8 ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
8.1.9 be solely responsible for procuring and maintaining its 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;
8.1.10 ensure that all Authorised Users are trained on use of the Software and are competent in its use; and
8.1.11 the Customer warrants that all Authorised Users will only use the Software as an aid, and not as a replacement for their own knowledge and expertise, and further warrant that all Authorised Users shall be competent in their respective field before making use of the Software and acknowledges that the software and/or services do not constitute medical advice.
9.1 The Customer shall pay the Subscription Fee to the Supplier for the User Subscriptions in accordance with this clause 9 and Schedule 1.
9.2 The Customer shall on the Effective Date provide to the Supplier, and ensure that at all times the Supplier has up-to-date and complete payment details and/or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details. The Supplier accepts payment by direct debit, BACs or any other kind of telegraphic transfer at the Supplier’s discretion. Where payment is made following approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
9.2.1 on the Effective Date (or if an Initial Trial has been agreed as per Schedule 1 at the end of the Initial Trial) for the Subscription Fees payable in respect of the Initial Subscription Term; and
9.2.2 subject to clause 1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 21 days of the final business day in the month following the month in which such invoice is issued.
9.3 If the Supplier has not received payment within 15 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
9.3.1 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
9.3.2 interest shall accrue on such due amounts at an annual rate equal to 5% over the then current base lending rate of Barclays Bank Plc at the date the relevant invoice was issued, 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:
9.4.1 shall be payable in pounds sterling;
9.4.2 are, subject to clause 4.2, non-cancellable and non-refundable;
9.4.3 are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
9.5 If, at any time whilst using the Services, the Customer exceeds any amount of disk storage space specified in the Documentation, the Supplier shall notify the Customer of the same within 5 Business Days and the Customer shall have 3 Business Days from the receipt of such notification to reduce the data stored through the Services. If the Customer exceeds any amount of storage space as specified by the Supplier in the Documentation after this time the Supplier may, at its own discretion, charge the Customer, and the Customer shall pay, the Supplier’s then current excess data storage fees.
9.6 The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 2 and/or the excess storage fees payable pursuant to clause 9.4.3 at the start of each Renewal Period upon 90 days’ prior notice to the Customer and Schedule 1 shall be deemed to have been amended accordingly.
10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 The Customer hereby grants the Supplier a royalty-free non-exclusive right to use the Customer’s Intellectual Property Rights, including, but not limited to, the get-up, trademarks, trading style and colour palettes of the Customers business in order to provide an integrated appearance to the Services and Software, and for promotional purposes, to enable the Supplier to advertise the fact that the Customer is (or was, as appropriate) a Customer of the Supplier.
10.3 Neither clause 10.2 or any other clause in this agreement is intended to form an assignment of Intellectual Property Rights or goodwill in either the Supplier’s or Customer’s business.
10.4 Neither the Services nor the Software nor information relayed through the Services and/or the Software constitutes medical advice or a medical device or provision of a medical device or clinical decision support. Each Data Drop must be reviewed by a clinically qualified member of staff before any clinical decisions are made as specified in clause 1.3 and the Customer warrants that this will be done and hereby indemnifies the Supplier against any and all losses and/or losses and/or other claims howsoever arising as a result of any breach of this warranty.
10.5 For the avoidance of doubt, the Customer shall not gain any Intellectual Property Rights in the Software.
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:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party’s lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.1.5 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 The customer agrees that the Supplier may use the Customer’s practice names of physicians on its website, in marketing materials and that the same will be made available to Patients.
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:
12.1.1 the Customer is given notice of any such claim;
12.1.2 the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
12.1.3 the Customer is given sole authority to defend or settle the claim.
12.2 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 5 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.3 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the claim referred to in clause 12.1 is based on:
12.3.1 a modification of the Services or Documentation by anyone other than the Supplier; or
12.3.2 the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
12.3.3 the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
12.4 The foregoing and clause 4.2 state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
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:
13.1.1 arising under or in connection with this agreement;
13.1.2 in respect of any use made by the Customer of the Services and Documentation or any part of them; and
13.1.3 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:
13.2.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage including, inter alia, loss of profits caused by errors or omissions in any information, instructions or scripts within the Services howsoever caused.
13.2.2 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
13.2.3 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:
13.3.1 for death or personal injury caused by the Supplier’s negligence; or
13.3.2 for fraud or fraudulent misrepresentation.
13.4 Subject to clause 2 and clause 13.3:
13.4.1 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 corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
13.4.2 the Supplier’s total aggregate liability in contract (including any indemnity as set out in this agreement), 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 10 months immediately preceding the date on which the claim arose.
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 for successive periods of 12 months (each a Renewal Period), unless:
14.1.1 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;
14.1.2 otherwise terminated in accordance with the provisions of this agreement; or
14.1.3 where a trial period has been agreed as detailed in Schedule 1 either party may terminate this agreement with immediate effect by serving written notice on the other.
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement with immediate effect and without liability to the other by giving written notice if:
14.2.1 the other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
14.2.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or
14.2.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
14.2.4 a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
14.2.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
14.2.6 the other party ceases, or threatens to cease, to trade; or
14.2.7 there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or
14.2.8 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
14.3 The Supplier may terminate this agreement with immediate effect in the event that any third party licence required by the Supplier to grant any licence set out in this agreement is terminated for any reason. In the event that the Supplier terminates this agreement in accordance with this clause 3, the Supplier shall refund any paid fees on a pro-rata basis for any unused subscription period.
14.4 On termination of this agreement for any reason:
14.4.1 all licences granted to the Customer under this agreement shall immediately terminate;
14.4.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party (other than Customer Data);
14.4.3 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
14.4.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
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.
16.1 A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.2 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
17.1 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.
17.2 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.
18.1 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.
18.2 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.
19.1 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.
19.2 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.
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).
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.
22.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
22.1.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);
22.1.2 sent by fax to its main fax number; or
22.1.3 sent by email to the email address provided by the other party. Each party must inform the other party of any change in their email address for this purpose.
22.2 Any notice shall be deemed to have been received:
22.2.1 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
22.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service;
22.2.3 if sent by fax, at 9.00 am on the next Business Day after transmission;
22.2.4 if sent by email, at 9.00 am on the next Business Day after sending.
22.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- GOVERNING LAW AND JURISDICTION
23.1 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
23.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the earlier of either the date the agreement is signed or on the date the customer acknowledges and accepts the contractual arrangements via GP Access’s online order form.
No fee shall be payable to the Supplier until the end of the Trial Period. Unless this agreement is terminated prior to the end of the trial period in accordance with clause 14 then the subscription fees shall be pro-rata’d for the remainder of the Initial Subscription.
Reviewed 12 August 2015, H Longman