Terms of Business
Terms of Business Agreement for Clients
1) DEFINITIONS
In this agreement, unless otherwise specified, the following definitions are to be used:
“Licensor” My Surgery App Ltd as defined in Clause 3
“Licensee”, “You” You or the organisation that you are authorised to represent.
“Agreement” These Terms and Conditions and any applicable Appendices
“Product” Any product of the Licensor, including, but not limited to:
- Practice App
- Practice Website
- Surgery Consult in partnership with Engage Consult
2) INTRODUCTION
The Licensor provides goods and services only in strict accordance with these terms and conditions. Dependent on the goods and/or services provided, specific sections of these terms and conditions apply. The Licensor may modify any of the terms and conditions contained in this Agreement at any time at its sole discretion, and determine whether and when any such changes apply to both existing or future customers.
The Licensor may make changes or modifications to referenced policies and guidelines without notice to you. Your continued use of the Services following being made aware of the posting of any changes or modifications constitutes your acceptance of such changes or modifications.
3) My Surgery App Ltd. 51 Waun Penlan, Pontardawe, Swansea, West Glamorgan, United Kingdom, SA8 3BB
Company number - 12558206
Telephone: 01792 344747
Email: [email protected]
4) RESTRICTIONS ON USE
You shall not without the express written consent of the Licensor:
a) remove or obscure any copyright or trademark notice or other proprietary notice relating to the product.
b) reverse engineer, de-compile or disassemble the product.
c) distribute any portions of the product to a third party.
d) display the product on a public bulletin board, newsgroup, website, chat room or by any other unauthorised means.
e) rent or lease any part of a product to a third party.
If the product integrates with any products produced by EMIS, Appendix F will apply.
5) INTELLECTUAL PROPERTY RIGHTS
The copyright, patents, trademarks and all other intellectual property rights in the product and its associated documentation are protected by National and International treaties and remain the property of the Licensor and/or its suppliers. You do not obtain any rights in the product other than those expressly granted in this Agreement.
Both parties agree that, unless they have the prior written consent of the other party, they will not use or disclose to any third party any information which is confidential to the other party. The obligations of this Clause shall survive termination or cancellation of this Agreement.
The Licensee agrees that, unless they have the prior written consent of the Licensor, no access will be granted to the product, either by direct access or by the use of a remote connection of any kind, to any person or persons other than those professionals directly employed by the Licensee.
6) UPDATE POLICY
The Licensor reserves the right, from time to time, to revise and/or improve the product. These updates will be made available to Licensees according to a schedule defined by the Licensor. If you acquire an updated version of a software product, then all copies of the previous version must be destroyed, except for one copy, which may be retained solely for archive purposes.
7) LIMIT OF LIABILITY
The liability of the Licensor is limited to the cost of replacement of the defective product. Nothing in this Agreement shall limit the Licensor’s liability for:
a) fraud or other criminal act.
b) personal injury or death caused by our negligence.
c) any other liability that cannot be excluded by law.
d) Subject to Clause 7 (a-c), the Licensor accepts no liability for any indirect or consequential loss or damage, or for any loss of data, profit, revenue, anticipated savings or business, however caused and even if foreseeable or made known to the Licensor.
8) ASSIGNMENT/SUB-CONTRACTING
You may not assign the Agreement or any of its rights or obligations hereunder nor sub-license the use (in whole or in part) of the product without prior written consent from the Licensor.
9) SECURITY
The nature of the Licensor’s business requires, under certain circumstances, the disclosure of personal and confidential information. The Licensor confirms that any such information disclosed will only be used for the purposes made available. Strict adherence to the current prevailing privacy and data protection laws will be observed by the Licensor and copies of employee’s confidentiality agreements will be made available on request.
The nature of the Licensee’s business may require them to hold Person-Identifiable Information. The Licensee agrees that they will not use the Product to transmit any Person-Identifiable Information. This may include, but is not restricted to, anything that contains the means to identify a person e.g., name, address, postcode, date of birth, NHS number, National Insurance Number etc. Any data or combination of data and other information, which can indirectly identify the person, will also fall into this definition.
10) PAYMENT
Payment for all goods and services provided is on a strict Net Cash Monthly Account or on an annual basis.
Licences, where provided, are for a period of one, two, three of five calendar years unless other time periods are agreed in writing.
The Licensor reserves the right to charge interest on overdue balances as per the late payment of commercial debts (Interest) Act 1998.
11) CONFIRMATION OF ORDER (INSTRUCTION TO PROCEED)
Order confirmation shall be given in accordance with Clause 12 below except where a software product is downloaded on-line; then the act of accepting these conditions and downloading the product shall form the contract between the parties.
12) NOTICES/COMMUNICATION
All communication between the parties shall be given:
a) to the Licensor in writing at the address given in Clause 3 above, via e-mail to an employee of the Licensor or via e-mail to the generic address of [email protected]
b) to the Licensee at either the e-mail or postal address provided during any operating or registration process. It is the responsibility of the Licensee to keep the Licensor informed of changes to contact and billing details. Notice will be deemed received when an e-mail is received (or else on the next business day if it is received after 5pm, on a weekend or a public holiday). Alternatively, 3 days after posting if to a UK Mainland address.
13) WARRANTY
The Licensor warrants the performance of their products according to their type:
Software developed by the Licensor will be replaced when defective. The Licensee’s remedy for breach of the warranties set out in this clause:
a) shall be limited to replacement of the defective materials and shall not encompass any other damages.
b) save as stated herein, the Licensor expressly disclaims all other conditions, warranties, terms and undertakings, expressed or implied, statutory or otherwise, relating to the Software and related documentation or technical support including (but not limited to) warranties of quality, performance, satisfactory quality or fitness for a particular purpose.
c) it is the responsibility of the Licensee to periodically test the satisfactory operation of the software to ensure local configuration changes have not adversely affected the Software.
14) SUPPORT
To provide effective support, the Licensor must be able to access your PCs to investigate any problems. If this is necessary the Licensor will ask the Licensee or their agent to download an application which will grant secure, point to point access to that PC alone on a temporary basis. This application is completely uninstalled when the remote session is terminated, and it is impossible for the Licensor to reconnect without the co-operation of the Licensee. If network security policies do not allow the software to be downloaded, run or connect back to the Licensor, the ability to provide timely support will be degraded and a degree of technical literacy will be required from the Licensee.
Where products have a dependency on 3rd party systems, the Licensor is unable to warrant the availability and performance of the dependency. The Licensee should ensure that their service level agreements with their 3rd party are sufficient to meet their business requirements.
15) ENTIRE AGREEMENT
This Agreement and any documents specifically identified by this Agreement constitute the entire agreement between the parties.
This Agreement has a number of appendices, depending on the particular product being provided:
16) TERMINATION
Termination by either party may be given in general accordance with Clause 12 (a). Such termination will not absolve either party of payment for service received, or the provision of services contractually entered into and paid for prior to the date of termination. Upon termination, the Licensee shall destroy all documentation and copies of software products, and cease using any leased hardware, pending its collection. Termination can be carried out:
a) at the end of the contracted period.
b) under the terms of any applicable Acceptable Use Policy.
c) if either party defaults on the terms of this agreement and:
the default is capable of being remedied but, within 30 days of notice by the non-defaulting party specifying the default, is not remedied: or
the default is not capable of being remedied. The non-defaulting party may immediately terminate, or temporarily suspend the operation of this agreement until the default is remedied, at its sole discretion.
17) FORCE MAJEURE
Neither party is liable for failure to perform if such failure is as a result of Acts of God (including Flooding, Fire Storm or other Natural Disaster), War, Invasion, Act of Foreign Power, Terrorist Activities, Government Sanction, integrated third-party or failure of electricity, network or Telephone Service. However, neither party is entitled to terminate this agreement under Clause 16 in such circumstances.
18) GOVERNING LAW
This Agreement is governed by and interpreted in accordance with United Kingdom Law. Any disputes or claims relating to this agreement shall be subject to the exclusive jurisdiction of the British Courts.
19) DISPUTES AND REMEDIES
The parties agree to use their best efforts to resolve any dispute which may arise under the Agreement through good faith negotiations. No party shall commence any litigation in relation to this Agreement unless it has first invited the chief executive of the other party to meet with its own chief executive for the purpose of endeavouring to resolve the dispute on mutually acceptable terms.
Any dispute arising under this Agreement which cannot be settled by negotiation between the parties, or their respective representatives shall be submitted to mediation before commencing any litigation. Either party may initiate mediation by giving written notice to the other party.
The parties shall continue to perform their obligations under the Agreement as far as possible as if no dispute had arisen pending the final settlement of any matter referred to mediation.
Nothing in this clause shall preclude either party from taking immediate steps to seek urgent, equitable relief before a United Kingdom Court.
APPENDIX A – Surgery App Practice Website
1) LICENCE FEES
The Licensor will invoice the Licensee for the appropriate Annual Licence Fees of £450 + VAT (Basic Plan) or £650 + VAT (Premium Plan) 30 days prior to the anniversary of the renewal date. Should the Licensor not receive payment, the Licensor reserves the right to relegate the Licensee’s access to the single user “Archive” mode, pending resolution.
The Annual licence fees include a contract length of a minimum 2 year period, advancing to a rolling 1 year period following the initial 2 year period:
a) licensing the use of Surgery App Practice Websites system, including bug fixes and enhancements.
b) telephone and remote support from the Licensor.
Although the Licensor may carry out the following at their discretion, the Annual licence fees do not cover:
a) network Support, including IP conflicts, cabling and capacity issues.
b) client software installation and application of operating system and application updates.
c) rectification of issues with Surgery App Practice Websites system caused by third party software installations.
d) the Licensee agrees to enter into an initial minimum contract length of two calendar years. The Licensee can renew the contract on a year-by-year basis thereafter. Payment of Annual Licence Fees constitutes acceptance for an addition licence for one calendar year following the initial two year minimum term
2) CLIENT COMPUTERS
There is no minimum specification for the Surgery App Practice Websites system, other than the requirement of an operating system of Windows 7 or higher. The Licensor expects client computers to be up to date with operating system and application updates as recommended by the applicable vendor.
3) NETWORK
To operate satisfactorily, Surgery App Practice Websites requires a healthy network environment.
APPENDIX B – Workflow Management System
1) LICENCE FEES
The Licensor will invoice the Licensee a fee of £50+ Vat monthly. Failure to pay the fee will inhibit the service. Resumption of service in such cases will be at the discretion of the Licensor and may incur additional charges.
2) USE OF SERVICE
The Licensee acknowledges that the service is intended to involve competent intervention before any impact on health occurs. A clinician’s judgement and experience must be used to check and interpret the service’s output.
3) SCOPE OF SERVICE
- Accepting forms from website / app
- Workflow management with smart routing
- Push Notifications to App users
APPENDIX C – Surgery Consult in partnership with Engage Consult
1) LICENCE FEES
The Licensor will invoice the Licensee a fee of £2550 + Vat annually. Failure to pay the fee will inhibit the service. Resumption of service in such cases will be at the discretion of the Licensor and may incur additional charges.
2) USE OF SERVICE
The Licensee acknowledges that the service is intended to involve competent intervention before any impact on health occurs. A clinician’s judgement and experience must be used to check and interpret the service’s output.
3) SCOPE OF SERVICE
- Accepting forms from website / app
- Engage Consult workflow system.
- 2-way messaging (limited to a single response - not open ended)
- Write back to the clinical - clinical codes for online consultation.
APPENDIX D – Surgery App Patient Facing App
1) SETUP SERVICE AND FREE TRIAL
The Licensor offers a no-obligation initial set up/migration service to bring a new app up to provisional go-live (PGL). The Licensor reserves the right to set a limit on the effort expended to bring a site to PGL and will inform the licensee at the earliest possible opportunity if the scope looks abnormally large. Once the trial app has reached an agreed level of functionality and achieved PGL, the Licensee accepts that the responsibility for ongoing management of the site will transfer to themselves. The duration of the trial is a maximum of 4 weeks after PGL. The Licensor reserves the right to delete any expired trials after due notice to the Licensee has been given.
2) SUPPORT
The app package is designed to be self-managed by the Licensee. The Licensor will provide reasonable assistance to the Licensee to help them manage their site after PGL. Full management is covered by the Annual licence fees.
3) RIGHTS TO THE APP AND CONTENTS
With the exception of any Third-Party Materials and Background Technology as set forth in Section 5, the Licensor owns the Licensor Content. “Licensor Content” means all content or information (including, without limitation, any text, music, sound, photographs, video, graphics, data, documents or software), in any medium, provided by the Licensor. “Third-Party Materials” means any content, software, or other computer programming material that is owned by an entity other than the Licensor, and licensed by the Licensor or generally available to the public, under published licensing terms. The Licensor owns the rights to the design of the app and its underlying content management system. Upon termination, the Licensee is not entitled to use the app for any purposes whatsoever.
4) LIMITED LICENCE TO BACKGROUND TECHNOLOGY
“Background Technology” means computer programming/formatting code or operating instructions developed by or for the Licensor and used to host or operate the website / app or a Web server in connection with the app. Background Technology includes, but is not limited to, any files necessary to make forms, buttons, check boxes, and similar functions and underlying technology or components, such as style sheets, animation templates, interface programs that link multimedia and other programs, customized graphics manipulation engines, and menu utilities, whether in database form or dynamically driven. Background Technology does not include any Licensor Content. The Licensee may not duplicate or distribute any Background Technology to any third party without the prior written consent of the Licensor. All rights to the Background Technology not expressly granted to the Licensee hereunder are retained by the Licensor.
5) LIMITED LICENCE TO CONTENT
The Licensee hereby grants the Licensor the limited, non-exclusive right and license to copy, distribute, transmit, display, perform, create derivative works from, modify, and otherwise use and exploit on the app, any Licensor Content, or Marks provided to the Licensor, solely for the purpose of rendering their services under this Agreement. Such limited right and license shall extend to no other materials or for any other purpose and will terminate automatically upon termination of this Agreement for any reason.
6) CONTENT
The Licensee agrees not to provide the Licensor content, and the Licensor will not intentionally provide to the Licensee any content, that:
a) infringes on any third party’s intellectual property or publicity/privacy rights.
b) violates any applicable law or regulation.
c) is defamatory, violent, clearly harmful, or obscene or pornographic or infringes on an individual’s rights.
d) contains any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines that are intended to damage or interfere with any system, data, or personal information.
The Licensor reserves the right to refuse any other subject matter it deems inappropriate.
7) ACCEPTABLE USE POLICY
The Licensor provides a service with expected levels of system utilisation (Including, but not limited to network, processor, memory and storage). If the Licensee’s use of the Service results in usage in excess of these established levels, the Licensor may, at its sole discretion, take actions to mitigate this, including but not limited to billing for excess resources used, temporarily restricting resources, or terminating the agreement in accordance with clause 16.
8) ASSOCIATED PRODUCTS
The Licensee agrees that the Licensor will, on their behalf, automatically renew any associated domains or security certificates managed by the Licensor and associated with their website and or app unless explicitly instructed not to. You acknowledge that in some cases, the lifetime of these associated products may extend beyond the app licence period and will not be eligible for any refund if the service is terminated.
9) TERMINATION
On cessation of service the Licensor will not charge for any outbound website / app fees.
12) APP PURCHASE & LICENCE FEES
a. Surgery app is offered at a ‘one off’ purchase price of £1600 + vat.
b. Annual licence fees are offered as follows (registered patients):The Licensee agrees to enter into an initial minimum contract length of two calendar years. The Licensee can renew the contract on a year-by-year basis thereafter. Payment of Annual Licence Fees constitutes acceptance for an addition licence for one calendar year following the initial two year minimum term.
1. Smal Practice – less that 5000 patients - £15 pm + vat
2. Medium Practice – 5000 to 1000 patients - £17.50 pm + vat
3. Large Practice – 1000 or more patient - £20 pm + vat
Annual licence fees can be paid annually or monthly.
