The Company agrees to provide the Desuto Decision Support and Reporting System subject to these software as a service end user terms and conditions (these "Terms").

1. Interpretation

1.1 The following definitions apply in these Terms:

• Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Software.
• Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
• Caldicott Principles: the principles applying to the handling of patient-identifiable information set out in the report of the Caldicott Committee (1 December 1997) and The Information Governance Review (March 2013 aka Caldicott 2).
• Confidential Information: any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including information which would or would be likely to prejudice the commercial interests of any person, trade secrets, intellectual property rights, know-how of either party and all personal data and sensitive data within the meaning of the DPA.
• Contract: these Terms and the relevant Order Form.
• Data Protection Legislation: the Data Protection Act 1998 (DPA), the EU Data Protection Directive 95/46/EC, the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner.
• Decision: a decision which is made by the Customer and/or Authorised User when using the Software.
• Documentation, Initial Term, Licence Fee, Renewal Term, Start Date, Software: as set out on the Order Form.
• Errors: an error in the Software that causes it to fail to operate substantially in accordance with the Specification.
• FOIA: the Freedom of Information Act 2000 and any subordinate legislation made under that Act from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation.
• Personal Data: has the meaning given to it in the DPA.
• Requests for Information: means a request for information or an apparent request under the FOIA.
• Specification: the specification document provided to the Customer by the Company which sets out a description of the Software and the user instructions for the Software.
• Subject: the individual who is the subject of a Decision.
• Subject Data: the Subject’s data including, but not limited to, Personal Data inputted by the Customer, Authorised Users, or the Company on the Customer's behalf for the purpose of using the Software.
• Support Hours: 9:00 am to 5:00 pm on Business Days.
• Term: has the meaning given in clause 12 (being the Initial Terms together with any successive Renewal Term).
• 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 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.

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

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

1.5 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.

1.6 A reference to writing or written includes faxes but not e-mail.

2. Grant of licence

2.1 In consideration of the Customer agreeing to abide by these Terms, the Company hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Software during the Term solely for the purpose of making Decisions.

2.2 The Customer will be licensed to use the Software for the number of Authorised Users set out on the Order Form. If the number of Authorised Users exceeds the amount set out in the Order Form, the Customer agrees to pay the Company in accordance with its standard charges for additional users.

2.3 The Customer is responsible for ensuring that all usernames and passwords allowing access to the Software are kept confidential at all times.

2.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software and the Company 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.

2.5 The Customer shall not, except as expressly set out in these Terms or as permitted by law:

• (a) attempt to copy, duplicate, create derivative works from, frame, mirror, republish, display, transmit, or distribute all or any part of the Software and related documentation;
• (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
• (c) access all or any part of the Software, Specification and Documentation in order to build a product or service which competes with the Software; or
• (d) sub-license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Software.

2.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software, the Specification and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Company.

3. Availability and support

3.1 The Company shall, during the Term, use commercially reasonable endeavours to maintain at least 98% uptime, except for planned maintenance.

3.2 During the Term, the Company shall endeavour to provide the Customer with support services by email or telephone during the Support Hours to assist with the normal day to day use of the Software. Support requests can be raised by email to info@desuto.com.

3.3 The Company shall endeavour to answer by email all requests for support raised by the Customer within 48 hours (provided that the request is raised on a Business Day) and correct any Errors within 90 Business Days.

4. Patient data

4.1 The Customer shall own all right, title and interest in and to all of the Subject Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Subject Data.

4.2 The Subject Data will not be stored on the Company’s servers and the Company shall not be required to follow any back-up procedures for the Subject Data. The Customer shall be permitted to save reports generated by the Software on its own servers.

4.3 In the event that the Company processes any Subject Data, the parties record their intention that the Customer shall be the data controller and the Company shall be a data processor and:

• (a) each party shall duly observe their obligations under the Data Protection Legislation, which arise in connection with the Contract;
• (b) 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 the Data Protection Legislation;
• (c) the Company shall process the personal data only in accordance with these Terms and any lawful instructions given by the Customer from time to time;
• (d) the Company shall not store any Subject Data outside the EEA without the Customer’s written consent; 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. Freedom of information

5.1 The Company acknowledges that the Customer may be subject to the requirements of the FOIA and shall assist and co-operate with the Customer (at the Customer’s expense) to enable the Customer to comply with these information disclosure requirements.

5.2 The Company shall:

• (a) transfer any Request for Information to the Customer as soon as practicable after receipt and in any event within five working days of receiving a Request for Information;
• (b) provide the Customer with a copy of all information in its possession or power in the form that the Customer requires within ten working days (or such other longer period as the Customer may specify) of the Customer requesting that Information; and
• (c) provide all necessary assistance as reasonably requested by the Customer to enable the Customer to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA.

5.3 In no event shall the Company respond directly to a Request for Information.

6. The Company's obligations

6.1 The Company undertakes that the Software will, when properly used, perform substantially in accordance with the functions described in the Specification for a period of 60 days from the Start Date ("Warranty Period").

6.2 If, within the Warranty Period, the Customer notifies the Company in writing of any defects or faults in the Software as a result of which it fails to perform substantially in accordance with the Specification, the Company shall, at its sole option, either repair or replace the Software, provided that the Customer makes available all the information that may be necessary to help the Company to remedy the defect or fault.

6.3 The warranty at clause 6.1 does not apply to the extent any defect or fault in the Software which is caused by use of the Software contrary to the Company’s instructions or modification of the Software by any party other than the Company.

6.4 The Company warrants that it will use reasonable care and skill to provide the Software.

6.5 The Company:

• (a) does not warrant that the Customer's use of the Software will be uninterrupted or error-free; 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.

7. Customer's obligations

7.1 The Customer shall:

• (a) co-operate with the Company and provide information as may be reasonably required by the Company;
• (b) ensure that the Authorised Users use the Software in accordance with these Terms;
• (c) at all times comply with the Caldicott Principles in so far as it handles any patient-identifiable information;
• (d) ensure that its network and systems enable the Software to run at speeds that meet the Customer’s requirements; and
• (e) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Company's, or other 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. Proprietary rights

The Customer acknowledges that the Company and/or its licensors own all intellectual property rights in the Software. Except as expressly stated herein, these Terms do not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software.

9. Price and payment

9.1 The Licence Fees payable by the Customer to the Company for the Term shall be as stated on the Order Form. The Customer shall pay the Licence Fees to the Company in accordance with this clause 9.

9.2 All amounts and Licence Fees stated on the Order Form:

• (a) shall be payable in pounds sterling; and
• (b) are non-cancellable and non-refundable.

9.3 The Company may invoice the Customer for the Licence Fees at any time after the Start Date. The Customer shall pay each invoice submitted to it by the Company in full, and in cleared funds within 30 days of receipt. Time for payment of the Licence Fees shall be of the essence of the Contract.

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

• (a) the Company may, without liability to the Customer, disable the Customer’s access to all or part of the Software on providing reasonable prior written notice to the Customer and the Company shall be under no obligation to provide any or all of the Software while the outstanding Licence Fees remain unpaid;
• (b) in the event that the Customer does not pay the outstanding Licence Fees in accordance with clause 9.4(a) above interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% above Barclays Bank plc’s base rate from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

9.5 All amounts and fees stated or referred to in these Terms are exclusive of value added tax, which shall be added to the Company's invoice(s) at the appropriate rate.

9.6 All sums payable to the Company under the Contract shall become due immediately on termination, despite any other provision of the Contract. This clause 9.6 is without prejudice to any right to claim for interest under the law, or any right under the Contract.

10. Confidentiality

10.1 The Company acknowledges that the Subject Data is the Confidential Information of the Customer.

10.2 Subject to clause 10.3, the parties shall keep confidential the Confidential Information of the other party and shall use all reasonable endeavours to prevent their representatives from making any disclosure to any person of the Confidential Information.

10.3 Clause 10.2 shall not apply to any disclosure of information:

• (a) required by any applicable law, provided that clause 5 shall apply to any disclosures required under the FOIA;
• (b) that is reasonably required by persons engaged by a party in the performance of that party's obligations under the Contract;
• (c) where a party can demonstrate that such information is already generally available and in the public domain otherwise than as a result of a breach of clause 10.2;
• (d) which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing party, and the disclosing party is not under any obligation of confidence in respect of that information; or
• (e) by a party when the other party has given its prior written consent to disclosure.

10.4 This clause 10 shall survive termination of the Contract, however arising.

11. Limitation of liability

11.1 The Customer agrees that it assumes sole responsibility for the results obtained from the use of the Software and any report generated from such use. The Company shall have no liability for any damage caused by errors in the Subject Data. The Customer acknowledges that the Software was not designed to meet the Customer’s individual requirements and that it is the Customer’s responsibility to ensure that the Software meets its requirements.

11.2 This clause 11 sets out the entire financial liability of the Company (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 the Contract;
• (b) in respect of any use made by the Customer of the Software 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 the Contract.

11.3 Except as expressly and specifically provided in these Terms:

• (a) the Customer assumes sole responsibility for results obtained from the use of the Software and the Documentation, and for conclusions drawn from such use; and
• (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 these Terms.

11.4 Nothing in this agreement excludes the liability of the Company:

• (a) for death or personal injury caused by the Company's negligence; or
• (b) for fraud or fraudulent misrepresentation.

11.5 Subject to clause 11.3 and clause 11.4:

• (a) the Company 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 the Contract; and
• (b) the Company's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the total Licence Fees paid by the Customer.

12. Term and termination

12.1 The Contract shall commence on the Start Date and shall, unless terminated otherwise as provided in this clause 12, continue for the Initial Term and, thereafter shall be automatically renewed for successive Renewal Terms, unless:

• (a) the Customer notifies the Company, in writing, at least 5 Business Days before the end of the Initial Term or any Renewal Term; or
• (b) otherwise terminate in accordance with the provisions of these Terms.

12.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

• (a) the other party fails to pay any amount due under the Contract 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 30 days after being notified in writing to do so;
• (c) 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;
• (d) 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;
• (e) 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;
• (f) 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; or
• (g) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

12.3 On termination of this agreement for any reason:

• (a) all rights granted to the Customer shall immediately terminate;
• (b) 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;
• (c) no Licence Fees shall be refunded to the Customer;
• (d) 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 Contract which existed at or before the date of termination shall not be affected or prejudiced.

13. Force majeure

The Company shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations under the Contract, 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 Company 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.

14. Variation

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

15. Waiver

No failure or delay by a party to exercise any right or remedy provided under the Contract 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.

16. Severance

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

16.2 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.

17. Entire agreement

17.1 The Contract, 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.

17.2 Each of the parties acknowledges and agrees that in entering into the Contract 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 the Contract.

18. Assignment

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

18.2 The Company 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 the Contract.

19. Third party rights

No one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.

20. Notices

20.1 Any notice required to be given under the Contract 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 postal address set out on the Order Form, or such other address as may have been notified by that party for such purposes.

20.2 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.

21. Governing law and Jurisdiction

21.1 The Contract 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.

21.2 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 the Contract or its subject matter or formation (including non-contractual disputes or claims).

Last Updated: 31/03/2017