WILMINGTON HEALTHCARE (WELLARDS) SERVICES AGREEMENT
TERMS & CONDITIONS
1.1 This Agreement is made between Wilmington Healthcare Ltd (WHL) a company incorporated in England and Wales under number 02530185 whose registered office is at 6 – 14 Underwood Street, London, N1 7JQ or ("WHL" or "We", and "Our" or "Us" shall be construed accordingly) and the party to whom our proposal document is addressed or by whom the purchase order accepted by us is issued ("Customer" or "You", and "Your" shall be construed accordingly).
1.2 This Agreement comprises the proposal document prepared and submitted by Us to You (or, if there is no proposal document, the purchase order submitted by You and accepted by us) (the "Proposal") and these Terms & Conditions.
1.3 The terms of this Agreement constitute and govern the contractual relationship between You and Us relating to the Services and you accept that these terms apply to the exclusion of any terms and conditions contained in any of your own documents even if the same purport to provide that your own or some other terms prevail. Your use of the Services constitutes your acceptance of the terms of this Agreement whether or not you have signed a copy of this Agreement.
1.4 In the event of any conflict or inconsistency between the terms of the Proposal and these Terms and Conditions, the terms of the Proposal shall prevail.
2. PROVISION OF SERVICES AND SUPPORT
2.1 In consideration of the payment of the Charges, We hereby grant to You a non-exclusive, non-transferable licence to access and use the service(s) (the “Services”) specified in the Agreement, for the duration of this Agreement, subject to and in accordance with the terms of this Agreement.
2.2 You may use the Services for Your normal internal business purposes only.
2.3 You shall co-operate with Us in Our performance of the Services and provide such assistance and information as may be reasonably required by Us in this respect including in relation to the diagnosis of any faults.
2.4 We may, on prior notice to You, make changes to the Services, provided such changes do not have a material adverse effect on the nature or quality of the Services provided to You.
2.5 In this Agreement "Website" means the website at www.wellards.co.uk.
3. PLATFORM AND ONLINE COMMUNICATIONS
3.1 You acknowledge that the platform which We make available to You in connection with the provision of the Services is hosted for Us by a third party service provider. We will use reasonable endeavours to make those Services provided online available in accordance with our published service levels but we cannot guarantee uninterrupted, timely or error free availability including due to unscheduled maintenance or that defects will be corrected within set time periods, and we reserve the right to suspend access to the Website for the purpose of scheduled or emergency maintenance, repairs or upgrades to improve the performance or functionality of the Website.
3.2 We do not accept responsibility for any delay, delivery failure, disruption to the Customer's access to any Services provided online or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet as a result of (a) a suspension under clause 3.1, (b) the operation of the internet including any viruses on the internet, (c) any firewall restrictions that have been placed on the Customer's network or the computer the Customer is using to access the online Services, (d) failures of telecommunications links and equipment, or (e) updated browser issues.
3.3 The Customer is responsible for ensuring that the computers it uses to access any Services are compatible with the minimum specification requirements that relate to those Services.
4.1 You shall notify Us of the individual users of the Services and You will restrict access to and use of the Services to these authorised users only. It is Your responsibility to ensure that all authorised users use only the unique user IDs (unique assigned alphanumeric identifiers) and passwords allocated to them. You shall ensure that no authorised user permits access to the Services, whether by sharing of User ID or password or otherwise, to any person who is not an authorised user.
4.2 You are responsible for the following matters in relation of the security of the Services:
4.2.1 the security of your own computer systems and communications facilities;
4.2.2 the confidentiality of user IDs and passwords for authorised users;
4.2.3 Notifying Us immediately of any actual or suspected information security breaches of which You become aware including any compromised user accounts; and
4.2.4 Periodically reviewing the efficacy and appropriateness of Your security configurations and access rights.
5.1 We will not obtain any title to or ownership rights in any data or content which is proprietary to You and which is provided by You to Us in connection with your use of the Services ("Customer Materials") which shall remain Your property at all times.
5.2 You shall have sole responsibility for the legality, reliability, integrity, security, accuracy and quality of the Customer Materials.
5.3 We may process and use the Customer Materials for the purposes of providing the Services and for the purposes described in this Agreement.
5.4 If We process any personal data on Your behalf when performing Our obligations under this Agreement, then You shall be the data controller and We shall be a data processor and in any such case:
5.4.1 You shall ensure that You are entitled to transfer the relevant personal data to Us so that We may lawfully use, process and transfer the personal data in accordance with this Agreement on Your behalf;
5.4.2 You 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
5.4.3 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.
5.5 You shall ensure that before using the Services each of your users has provided an informed consent to the receipt of emails from Us providing details of products and services similar to the Services accessed by that user in order that users have the opportunity to receive further training, services and information relevant to their perceived requirements and interests, and the use of the Services by each such user constitutes your warranty to Us of the grant of such informed consent by that user.
6.1 In this Agreement "Charges" means all charges, fees, costs, expenses, reimbursements and other payments to be made by You to Us as set out in the Proposal.
6.2 All Charges are payable by You within 30 days of receipt of our invoice and shall be paid in full without any deduction or withholding other than as required by law and You shall not be entitled to assert any credit, set-off, claim or counterclaim against us in order to justify withholding payment of any such amount in whole or in part.
6.3 All Charges are subject to VAT and/or any other applicable sales tax (if applicable) and, unless otherwise stated, all Charges stated in this Agreement are exclusive of any sales tax or VAT.
6.4 If You fail to pay any amount payable under this Agreement on the due date for payment then We may claim interest on any such sums due to Us (both before and after judgement) at the rate of 3% per annum above the base rate from time to time of Barclays Bank plc or, if lower, at the maximum rate permitted under the Late Payment of Commercial Debts (Interest) Act 1998 and Late Payment of Commercial Debts Regulations 2002.
6.5 We shall be entitled to vary the Charges with effect from each anniversary of the date of this Agreement on not less than 90 days' notice to You.
7. WHL WARRANTIES
7.1 We warrant that:
7.1.1 We have all of the rights in relation to the Services that are necessary to grant all of the rights We purport to grant under, and in accordance with, the terms of this Agreement and to fully perform our obligations under this Agreement; and
7.1.2 the Services will be performed with reasonable skill and care and in compliance with all applicable laws.
7.2 The warranties in clause 7.1 shall not apply to the extent of any non-conformance which is caused by Your use of the Services contrary to Our instructions, or any modification or alteration of the Services made by You or by any third party.
7.3 You acknowledge that Your use of the Services may not be without interruption and may not be free of errors, that Services are provided on an 'as is' and 'as available' basis, and You agree that the existence of any minor errors shall not constitute a breach of this Agreement.
7.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including any implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 In this Agreement "IPR" means any and all intellectual property rights of whatever nature and howsoever arising including patents, trademarks, designs, copyrights and rights in the nature of copyright, moral rights, know-how, all rights in computer software, and database rights.
8.2 You acknowledge that all IPR in the Services throughout the world belong to Us or Our licensors and that You have no rights in or to the Services other than the right to use them in accordance with the terms of this Agreement.
8.3 We shall at our own expense defend You or, at Our option, settle any claim or action brought against You alleging that Your use of the Services in accordance with the terms of this Agreement infringes the IPR or any other rights of a third party ("Claim") and We shall be responsible for any losses, damages, and costs awarded against You and for the reasonable legal costs incurred by You as a result of any such Claim.
8.4 Clause 8.3 shall not apply where the Claim in question is attributable to any Customer Materials provided by You to Us or Your use of the Services other than in accordance with the terms of this Agreement or otherwise in a manner contrary to the instructions given to You by Us, or to a modification of the Services made by anyone other than Us, or to Your use of the Services after notice of the alleged or actual infringement from Us or any appropriate authority.
8.5 You shall at your own expense defend us or, at Your option, settle any claim or action brought against Us alleging that Our use of the Customer Materials in accordance with the terms of this Agreement infringes the IPR or any other rights of a third party ("Customer Materials Claim") and You shall be responsible for any losses, damages, and costs awarded against Us and for the reasonable legal costs incurred by Us as a result of any such Customer Materials Claim.
8.6 At all times, We and/or our licensors, remain the owner of the IPR in the Website. No Website content, nor any part thereof may be reproduced, stored in a retrieval system or transmitted any form or by any means without our prior written permission.
8.7 The Customer may make Website content available to its authorised users for their personal use for training and educational purposes, subject to which the Customer shall not modify, copy, reproduce, re-publish, sub-licence, sell, upload, broadcast, post, transmit, make available, disseminate or distribute in any way any of Website content.
8.8 Use of the Website not expressly permitted in this Agreement is strictly prohibited and will constitute an infringement of our IPR and/or the IPR of our licensors.
9.1 Except as expressly set out in this Agreement or as permitted by any local law which applies to this Agreement and which cannot be excluded, You shall:
9.1.1 not use the Services on behalf of or make them available to any other person;
9.1.2 not make any alterations to, or modifications of, the whole or any part of the Services; and
9.1.3 not access, store, distribute or transmit any material during the course of Your use of the Services that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or is otherwise illegal, facilitates illegal activity, or causes damage or injury to any person or property.
9.2 The Services are provided for educational purposes only and may not be used or relied upon by the Customer or any of its users to diagnose or treat a healthcare condition or as a substitute for medical attention.
10. TERM AND TERMINATION
10.1 This Agreement shall be deemed to commence from the effective date or the commencement date stated in the Proposal and, subject to earlier termination as set out in this Agreement, shall continue for the period stated in the Proposal.
10.2 Either party may terminate this Agreement immediately by written notice to the other as follows:
10.2.1 if the other party commits a material or persistent breach of this Agreement which it fails to remedy (if remediable) within 30 days after the service on it of a written notice requiring it to do so; or
10.2.2 if the other party becomes insolvent on any basis, or suspends or threatens to suspend or ceases to carry on all or a substantial part of its business, or if it takes or gives notice that it intends to take, or it becomes subject to, any steps in any form of insolvency, winding up, administration or receivership process.
10.3 We may terminate this Agreement immediately by written notice to You if You fail to pay any part of the Charges when they fall due and have not paid within a further 14 days of receipt of a notice from Us that the Charges are due; or
10.4 The termination of this Agreement is without prejudice to any rights We may have against You or You may have against Us in respect of any breach of this Agreement by You or by Us respectively.
10.5 Upon termination for any reason:
10.5.1 all rights granted to You under this Agreement shall cease and You must cease all activities authorised by this Agreement;
10.5.2 You shall immediately pay any outstanding unpaid invoices and interest due to Us (and We shall submit invoices for any Services supplied for which no invoice has previously been submitted, and You shall pay these invoices immediately on receipt); and
10.5.3 any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
11. LIMITATION OF LIABILITY
11.1 The following provisions set out Our entire liability (including any liability for the acts and omissions of Our employees agents and sub-contractors) to You arising out of or in connection with this Agreement including in respect of any breach of Our contractual obligations arising under this Agreement and any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement.
11.2 Nothing in this Agreement shall limit or exclude our liability for death or personal injury resulting from our negligence; fraud or fraudulent misrepresentation; breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of the Goods and Services Act 1982; or any other liability that cannot be excluded or limited by English law.
11.3 We shall not under any circumstances whatsoever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement for: loss of profits, sales, business, or revenue; business interruption; loss of anticipated savings; loss or corruption of data or information; loss of business opportunity, goodwill or reputation; or for any indirect, consequential or special loss or damage or whatsoever nature and howsoever arising even if such loss was reasonably foreseeable or We were advised of the possibility of You incurring the same.
11.4 Other than the losses set out in clause 11.3 (for which We are not liable), our maximum aggregate liability under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the amount of the Charges paid by You in the 12 month period prior to the occurrence of the event in respect of which the relevant loss arose. This limitation on Our aggregate liability does not apply to clause 11.2.
11.5 If a number of breaches of this Agreement give rise to substantially the same loss then they shall be regarded as giving rise to only one claim under this Agreement.
11.6 You agree to afford Us not less than 30 days (following notification thereof by You) in which to remedy any breach of this Agreement.
11.7 Except in the case of a claim arising under clause 11.2 above We shall have no liability to You in respect of any breach of this Agreement unless You shall have served notice of the same upon Us within 2 years of the date You became aware of the circumstances giving rise to the breach or the date when You ought reasonably to have become so aware.
11.8 Nothing in this clause 11 shall confer any right or remedy upon You to which You would not otherwise be legally entitled. This Agreement sets out the full extent of our obligations and liabilities in respect of the provision of the Services. Except as expressly stated in this Agreement, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Services which might otherwise be implied into, or incorporated in, this Agreement whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
12.1 Each party shall, during the term of this Agreement and thereafter, keep confidential, and shall not use for any purpose other than the proper exercise of its rights under this Agreement nor disclose to any third party (except as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including, without limitation, trade secrets, technical information, know-how, and information of commercial value) which may become known to it and which relates to the other party or to the other party's business unless (i) that information is public knowledge or already known to that party at the time of disclosure or subsequently becomes public knowledge in each case other than by a breach of this Agreement, or (ii) subsequently comes lawfully into its possession from a third party. For the avoidance of doubt, any database or similar compilation which is compiled from publicly available data shall constitute information of a confidential nature notwithstanding that any or all of the data within that database is public knowledge.
12.2 Each party shall use all reasonable endeavours to prevent the unauthorised disclosure of the other party's confidential information and You shall restrict disclosure of Our confidential information to such of your employees as need to know the same for the purpose of using the Services and You shall be responsible for ensuring that any such persons accept and adhere to equivalent obligations of confidentiality to those contained in this clause 12.
12.3 Nothing in this clause 12 shall prevent either party from disclosing any information which it is compelled by law to disclose to a court of competent jurisdiction or other body having similar authority or pursuant to any government, stock exchange or other regulations including the Freedom of Information Act 2000.
13. FORCE MAJEURE
13.1 We shall not in any circumstances be in breach of this Agreement nor liable for any delay in performing, or any failure to perform, any of Our obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond our reasonable control.
14.1 If either party gives notice in writing under this Agreement, it will do so by email or by a recorded delivery postal service to the address of the other party set out in the Agreement.
14.2 Any notice given by You to us, or by us to You, will be deemed received and properly served immediately 24 hours after an e-mail is sent, or upon signed receipt in the case of recorded delivery service. In proving the service of any notice sent by email, it will be sufficient to prove that such email was sent to the specified email address of the addressee and a delivery receipt was obtained.
14.3 The provisions of this clause 14 shall not apply to the service of any proceedings or other documents in any legal action.
15. THIRD PARTIES
15.1 We may assign, transfer, novate, charge, subcontract or deal in any other manner with our rights and obligations under this Agreement to another person, but this will not affect Your rights or our obligations under this Agreement.
15.2 You may not assign, transfer, sub-license or otherwise dispose of or deal with Your rights or obligations under this Agreement to any other person unless We expressly agree in writing.
15.3 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of it, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
16.1 This Agreement constitutes the entire agreement and understanding between the parties (including the performances to be rendered) with respect to the subject matter hereof and supersedes any previous agreements, representations or understandings. Each party acknowledges that in entering into this Agreement it does not do so on the basis of or in reliance upon any representations, promises, undertakings, warranties or other statements (whether written or oral) of any nature whatsoever except as may be expressly provided in this Agreement (and accordingly any conditions, warranties or other terms implied by statute or common law are (save as to fraud) hereby excluded to the fullest extent permitted by law).
16.2 Failure by either party to enforce any of the provisions of the agreement shall not represent a waiver of such rights and shall not affect the validity of this Agreement nor affect the party’s rights to take subsequent action.
16.3 Each of the terms of this Agreement operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining terms will remain in full force and effect.
16.4 This agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
16.5 This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original part, but all the counterparts shall together constitute the same agreement.
16.6 All references to Clauses are, unless otherwise expressly stated, references to Clauses of this Agreement.
16.7 Headings in this Agreement are inserted for convenience only and shall be ignored in construing this Agreement.
16.8 A reference to one gender shall denote all genders and a reference to the singular shall include the plural and vice versa. References to statutory provisions shall be construed as references to those provisions as amended, consolidated, extended or re-enacted from time to time.
16.9 References to a "company" shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established; references to a "person" shall be construed so as to include any individual, firm, company, government, state or agency of the state or any joint venture, association or partnership (whether or not being separate legal personality).
16.10 Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words "without limitation" following them. Where the context permits, "other" and "otherwise" are illustrative and shall not limit the sense of the words preceding them.