Licence Terms
The following terms shall govern the provision of the Service (as defined below).
Definitions and Interpretation
Capitalised terms not defined herein, shall have the following meanings:
“Acceptable Use Policy” means the written policy made available to Authorised Users when using the service, setting out the authorised uses of the Service and aspects of the Service by Authorised Users.
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, the Licensee.
“Agreement” means this agreement between Pharmlogic and Licensee comprising the Term Sheet, Software As A Service Agreement, these Pharmlogic Licence Terms, and any and all additional schedules hereto.
“Authorised Use” means, as the case may be, communication with Patients in relation to the provision of direct care services in the Territory to Patients under the direct care of the Service Recipient(s), or, as the case may be, any use of the Pharmlogic Service which has been authorised to the Authorised Users and Service Recipients and documented in Schedule 3 Fees as the Services to which access by the Service Recipients and Authorised Users has been authorised/granted.
“Authorised Users” means those employees, agents, licensees, franchisees or contractors of the Licensee with appropriate qualifications and expertise to provide the relevant health and care services who are authorised by the Licensee to use the Service.
“Business Day” means a day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business.
“Confidential Information” has the meaning set out in clause 13.
“Control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of a company or other entity or organisation, and controls, controlled and the expression change of control shall be construed accordingly.
“Controller, Processor, Data Subject, Personal Data, personal data breach, Processing and appropriate technical and organisational measures” shall have the meaning as defined in the Data Protection Legislation.
“Data Protection Legislation” means all applicable privacy and data protection laws, including the EU General Data Protection Regulation (Regulation 2016/679) (the “GDPR”), the Data Protection Act 2018 and any applicable national implementing laws, regulations and secondary legislation relating to the processing of personal data pursuant to this Agreement, as amended, replaced or updated from time to time.
“Documentation” means those printed or online instructions, manuals, and diagrams distributed or otherwise provided by Pharmlogic that relate to the Pharmlogic Products or use of the Service.
“DPA” means the Data Processing Agreement set out at pharmlogic.co.uk/legal/data-processing-agreement as may be updated from time to time during the Term by Pharmlogic.
“Effective Date” means the date identified as such on the Term Sheet.
“Excluded Losses” has the meaning set out in clause 11.5.
“Free Trial” means where access to the Service has been granted by Pharmlogic to a Licensee and any other Service Recipient (and their Authorised Users) on the basis of beta access, a free trial or pilot period.
“Licence Fee” means the fee set out in the Term Sheet.
“Force Majeure Event” has the meaning set out in clause 15.7.
“Heuristic Data” means any data which is derived from the Licensee’s use of the Service or the Processing of Licensee Data, and shall include: (i) any data which is processed and stored as mathematical constructs; and (ii) statistical or aggregated data, but shall exclude any Personal Data.
“Initial Term” means the period identified as such on the Term Sheet, which period shall commence on the Effective Date.
“Insolvency Event” means, with respect to a Party, (a) entering into a composition or arrangement with its creditors other than for the sole purpose of a solvent reconstruction; (b) an inability to pay its debts as they become due; (c) a person becoming entitled to appoint or appointing a receiver or an administrative receiver over that Party’s assets; (d) a creditor or encumbrancer attaching or taking possession of the whole or any part of that Party's assets which is not discharged within 14 days; or (e) the occurrence of any event, or the taking of any proceedings, in any jurisdiction that has an effect equivalent or similar to any of the events mentioned in (a) to (d) above.
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trade marks, goodwill 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.
“Licensee Data” means the data uploaded or submitted via the Service directly or indirectly and shall include without limitation all anonymised business data, excluding any Heuristic Data.
“Licensee Personal Data” means Personal Data contained in the Licensee Data which is limited to the Licencee’s employees’ names and email addresses.
“Order Form” means the form to request procurement of the Product by the Licensee, submitted in advance of this agreement.
“Party” means a party to this Agreement, being either Pharmlogic or Licensee, and “Parties” means both of them.
“Patient” means a patient requiring the direct care services of the Licensee and who the Licensee invites to participate in communication via SMS using the Service.
“Patient Data” means information about Patients accessed by the Licensee using the NHS Spine or the Licensee’s clinical system or the Licensee’s pharmacy clinical system, as the case may be.
“Privacy Policy” means Pharmlogic’s privacy policy which is accessible at pharmlogic.co.uk/legal/privacy-policy, as updated from time to time during the Term by Pharmlogic.
“Renewal Term” means the period defined as such in clause 10.1. “Service” means the service described in Part A of Schedule 1.
“Service” means those Pharmlogic products that are listed in the Order Form that the Licensee, any Service Recipients and Authorised Users are authorised/licenced to use by Pharmlogic. In the event there is no Order Form, this definition encompasses those Pharmlogic Products to which any Service Recipient and Authorised User has access. In both scenarios, the products include any Free Trial version of the Product and are collectively referred to as the “Services” in these Licence Terms.
“Service Recipients” means the organisations listed in Part B of Schedule 2 who are authorised to use the service for the provision of direct care services.
“Site” means www.pharmlogic.co.uk and all relevant subdomains or such other URL as updated by Pharmlogic from time to time.
“SLA” means the Service Level Agreement set out in Part A of Schedule 2.
“SMS Costs” means any SMS Fragments sent by Service Recipients using the Service, chargeable at the cost set out in the Order Form.
“SMS Fragment” means the component of a SMS message with each fragment being 160 characters.
“Sub-processor” means any natural or legal person, public authority, agency or other body which possesses Personal Data on behalf of a data controller or a data processor.
“Switch-on Date” means the date that the Service Recipients and their Authorised Users will be able to access and use the Platform. The Switch-on Date is set out in the Order Form. In the event there is no Order Form, the Switch-on Date is the Effective Date or the date as otherwise notified to the Service Recipients and their Authorised Users by Pharmlogic using any reasonable means. In both scenarios, the Switch-on Date is the date from which any Licence Fee and SMS Costs will be charged by Pharmlogic to the Licensee, except in the context of a Free Trial.
“Term” means the Initial Term and any Renewal Term(s).
“Territory” means that territory or those territories identified as such on the Term Sheet.
“Trial Period” means the duration of the Free Trial as set out in the Order Form or as otherwise notified to the Service Recipients and their Authorised Users by Pharmlogic using any reasonable means, or in any other case, the period of thirty (30) days commencing on the commencement of the Free Trial.
“Virus” means 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 In this Agreement: (a) clause, schedule and paragraph headings shall not affect the interpretation of this Agreement; (b) unless the context otherwise requires, words in the singular shall include the plural and words in the plural shall include the singular; (c) a reference to writing or written includes e-mail; (d) 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; (e) any words following the terms including, include, in particular for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
Access to the Service
2.1 Pharmlogic hereby grants to the Licensee a non-exclusive, non-transferable, non-sub licensable right to permit its Authorised Users to access and use the Service from the Effective Date and during the Term in accordance with the Agreement.
2.2 The licence granted in clause 2.1 shall be for the Authorised Use only and the Licensee undertakes to ensure that all Authorised Users access and use the Service in accordance with the Acceptable Use Policy.
2.3 The Licensee shall not knowingly access, store, distribute or transmit any Viruses or any material during the course of its use of the Service that is unlawful, harmful, infringing, offensive, discriminatory, or which facilitates illegal activity or depicts sexually explicit images or causes damage or injury to any person or property. Pharmlogic reserves the right, without liability or prejudice to its other rights to the Licensee, to remove any such material and to disable the Licensee's access to the Service if the Licensee breaches the provisions of this clause 2.3.
2.4 Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the Parties, and except to the extent expressly permitted under this Agreement, the Licensee shall not, and shall not attempt to, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the software underpinning the Pharmlogic Products or the Service in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Pharmlogic Products.
2.5 The Licensee shall not, and shall not attempt to: (a) access all or any part of the Service in order to build a product or service which competes with the Service; (b) subject to clause 12, make the Service available to any third party except to its Authorised Users, or (c) attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this clause 2.
2.6 The Licensee shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify Pharmlogic. Each Authorised User shall keep a secure password for his or her use of the Service and that each Authorised User shall keep his or her password confidential.
2.7 The rights provided under this clause 2 are granted to the Licensee only, and shall not be considered granted to any Affiliate. Pharmlogic shall not be liable for any delay, failure or breach of these Terms of Use where the Licensee does not provide such authority, information and co-operation or the Licensee fails, delays or omits to act in respect of any of its obligations under these Licence Terms.
2.8 Other than as expressly stated otherwise in these Licence Terms, the Licensee acknowledges it is its sole responsibility to determine that the Service meets its business requirements and, to the fullest extent permissible by law and without limitation, Pharmlogic gives no warranties that the Service will be fit for purpose.
Licence Fee
3.1 The Licence Fee is set out in the Term Sheet and is linked to the number of Authorised Users. The Licensee undertakes that it shall permit Pharmlogic to monitor the Service in order to establish how many Authorised Users are using the Service. If the Licensee has underpaid the Licence Fee, then without prejudice to Pharmlogic’s other rights, the Licensee shall pay to Pharmlogic such underpayment within 10 Business Days of being notified of such underpayment. The Licensee may from time to time purchase additional Authorised Users in excess of the number in the Term Sheet and Pharmlogic shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
Licensee Data and Heuristic Data
4.1 The Licensee shall own all right, title and interest in and to all of the Licensee Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Licensee Data.
4.2 Pharmlogic may use the Licensee Data to improve the performance and functionality of the Service or develop improvements, updates, upgrades, modifications and derivative works thereof. Pharmlogic shall own all rights, title and interest in and to all of the Heuristic Data.
4.3 Pharmlogic may track and analyse the Licensee’s and any Authorised User’s use of the Service for the purposes of security and to help Pharmlogic improve the Service and the Pharmlogic Products.
4.4 Both Parties shall comply with their respective obligations under the Data Protection Legislation. The Parties acknowledge that Pharmlogic will be the Processor in respect of the Licensee’s Personal Data.
4.5 The Parties each agree to comply with the terms of the DPA and the Privacy Policy with regard to Patient Data. Licensee acknowledges that Pharmlogic will process personal data in accordance with the Privacy Policy.
4.6 Subject always to clause 11, each Party shall indemnify the other against all losses, damages, liabilities and claims, arising from or in relation to any breach of its obligations under this clause 4.
Pharmlogic's Obligations
5.1 Pharmlogic shall (a) provide the Service to the Licensee on and subject to the terms of this Agreement; and (b) make the Pharmlogic Products available in accordance with the SLA, and provide the levels of support set out in the SLA.
5.2 Pharmlogic shall not be liable for any breach of its obligation in clause 5.1(b) to the extent that any non-conformance with the SLA is caused by use of the Service contrary to Pharmlogic’s instructions, or modification or alteration of the Pharmlogic Products by any party other than Pharmlogic or Pharmlogic’s duly authorised contractors or agents. Notwithstanding the foregoing: (a) the Licensee acknowledges and agrees that the Service will evolve over time and that functionality may be added and removed from time to time; (b) Pharmlogic does not warrant that the Licensee's use of the Service will be uninterrupted or error-free; or that the Pharmlogic Products and/or the information obtained, or the experiences undertaken by the Licensee or the Authorised Users through the Service will meet the Licensee's requirements; and (c) subject to the terms of the SLA, Pharmlogic 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 Licensee acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.3 This Agreement shall not prevent Pharmlogic 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.
Licensee's Obligations
6.1 The Licensee shall provide Pharmlogic with all necessary cooperation in relation to this Agreement and all necessary access to information as may be required by Pharmlogic to fulfil its obligations under this Agreement, including granting Pharmlogic full and unrestricted access to Licensee’s account in order to provide support or fix any errors. The Licensee shall be responsible for setting the access rights for each of its Authorised Users and shall carry out all of its responsibilities in this Agreement in a timely and efficient manner.
6.2 The Licensee shall ensure that all its Authorised Users use the Service strictly in accordance with this Agreement and shall be responsible for any Authorised User's breach of this Agreement.
6.3 The Licensee shall indemnify Pharmlogic against all and reimburse to it losses, damages, liabilities and claims, arising from or in relation to any third party claims arising from the actions of Authorised Users in providing its services to Patients using the Service. Nothing in this clause 6.3 shall restrict or limit Pharmlogic’s general obligation at law to mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity. In connection with any event reasonably likely to give rise to a liability under the indemnity in this clause 6.3 (a “Claim”), Pharmlogic shall:
6.3.1 as soon as reasonably practicable, give the Licensee written notice of the Claim, specifying the Claim in reasonable detail;
6.3.2 not make any admission of liability, agreement or compromise in relation to the Claim; and
6.3.3 be deemed to have given to the Licensee sole authority to avoid, dispute, compromise or settle the Claim.
6.4 The Licensee shall ensure that its network and systems comply with the relevant specifications detailed as requirements by Pharmlogic for the use of the Service from time to time and as necessary for the operation of the Pharmlogic Products, and shall be solely responsible for procuring and maintaining all network connections and telecommunications links from its systems to Pharmlogic’s data centres
6.5 During the Term and for a period of one year afterwards, the Licensee shall maintain in force insurance policies with reputable insurance companies, against all risks that would normally be insured against by a prudent businessman in connection with the risks associated with this Agreement and the provision of direct care services to Patients (including without limitation for medical negligence), and shall produce to Pharmlogic on request full particulars of that insurance and evidence that such insurance is current and in effect.
Payment
7.1 Pharmlogic shall invoice the Licensee on a Monthly basis and the Licensee shall pay each invoice in accordance with the provisions of the Term Sheet.
7.2 If Pharmlogic has not received payment of the Licence Fee by the due date, and without prejudice to any other rights and remedies of Pharmlogic, Pharmlogic may, without liability, and subject to 3 business days written notice to the Licensee disable the Licensee's and its Authorised Users’ passwords, accounts, access to all or part of the Service until the invoice(s) concerned are paid in full. Interest shall accrue on a daily basis on any overdue amounts at an annual rate equal to 4% above the Bank of England’s base rate, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.3 The Licence Fee and any SMS Costs are stated exclusive of value added tax, which shall be added to the relevant invoice(s) at the appropriate rate where relevant and if relevant.
7.4 Pharmlogic shall be entitled to increase the Licence Fee at the start of each Renewal Term upon ten (10) days' prior written notice to the Licensee.
7.5 The Licensee agrees to pay the Licence Fee, any SMS Costs and any Ancillary Fees and will be charged these from the Switch-on Date (unless otherwise stated in the Order Form).
7.6 During the Term the Licensee agrees to pay Pharmlogic the Licence Fee and SMS Costs in accordance with the Payment Terms and by the due date set out in the relevant invoice.
7.7 For the avoidance of doubt:
7.7.1 SMS Costs are still payable for Service Recipients with a non-Pharmlogic SMS gateway (e.g. an ICB gateway) if that gateway was unable to successfully deliver a SMS Fragment but, as a backstop, Pharmlogic's SMS gateway successfully delivered the SMS Fragment(s).
7.8 In return for payment of the Licence Fee and SMS Costs, each Service Recipient and their Authorised Users will be granted access to the Platform. These charges are non-refundable except where a subsequent Licensee has paid the Licensee's Licence Fee and SMS Costs. In such an instance, any refund will only be:
7.8.1 pro rata for overlapping contracted periods for the same Products and the same Service Recipients; and
7.8.2 made only to the relevant Licensee as agreed with Pharmlogic.
7.9 In the event of a Subsequent Licensee, the Licensee’s Agreement with Pharmlogic shall not automatically terminate. In the event that the Subsequent Licensee has not paid Pharmlogic the Licensee's Licence Fee and/or any SMS Costs by the due date, and without prejudice to any other rights and remedies of Pharmlogic, the Licensee shall pay the outstanding invoice(s) in full. In the event that Pharmlogic has not received payment of these invoices within 30 days from the original due date, Pharmlogic may suspend the relevant Service Recipients’ access to the Platform until payment of the outstanding amount has been received by Pharmlogic in full.
7.10 Unless confirmed otherwise in the Order Form, this clause 7.10 shall only apply in the event that the Licensee’s Agreement with Pharmlogic includes Service Recipients and it is agreed between the Licensee and Pharmlogic that the Licensee shall procure that those Service Recipients shall pay Pharmlogic the Licence Fee and/or SMS Costs:
7.10.1 If Pharmlogic has not received payment from the relevant Service Recipients of any invoices relating to either the Licence Fee and/or SMS Costs by the due date, and without prejudice to any other rights and remedies of Pharmlogic, the Licensee shall pay the outstanding invoice(s) in full. In the event that Pharmlogic has not received payment of these invoices within 30 days of the original due date, Pharmlogic may suspend the relevant Service Recipients’ access to the Platform until payment of the outstanding amount has been received by Pharmlogic in full.
7.11 If Pharmlogic has not received payment of the Licence Fee and any SMS Costs within 30 days of the due date, and without prejudice to any other rights and remedies of Pharmlogic, Pharmlogic may, without liability, and subject to 3 Business Days written notice to the Licensee disable or suspend the Licensee's and all other Service Recipients' and their Authorised Users’ passwords, accounts, access to all or part of the Platform until the invoice(s) concerned are paid in full. Interest shall accrue on a daily basis on any overdue amounts at an annual rate equal to 4% above the Bank of England’s base rate, commencing on the due date and continuing until fully paid, whether before or after judgement.
7.12 Pharmlogic shall be entitled to increase the Licence Fee and any SMS Costs (in line with any prices set out in the Order Form or as otherwise notified to the Licensee by Pharmlogic using any reasonable means) upon thirty (30) days' prior written notice to the Licensee.
Compliance with Laws and Regulations
8.1 The Licensee shall comply with all applicable laws and regulations in the exercise of its rights and the performance of its obligations pursuant to this Agreement.
Intellectual Property Rights
9.1 As between the Parties, all Intellectual Property Rights in and to the Pharmlogic Products and the Heuristic Data, the Documentation and the Service shall belong to, and remain vested in, Pharmlogic at all times.
9.2 Without prejudice to the generality of the foregoing or to the provisions of clause 2.5 above, to the extent that the Licensee’s or the Authorised User’s use of the Service results in any modifications, adaptations, developments, or any derivative works of or to the Pharmlogic Products or the operation of the Service (“Improvements”), then notwithstanding any rights or remedies of Pharmlogic, any and all Intellectual Property Rights in and to such Improvements shall immediately vest in and be owned by Pharmlogic.
9.3 Pharmlogic makes no representation or warranty as to the validity or enforceability of the Intellectual Property Rights in the Pharmlogic Products or the Service.
9.4 Pharmlogic will defend Licensee against any third party claims that the use of the Service in accordance with this Agreement infringes any third party Intellectual Property Right and subject to clause 11.5, shall indemnify Licensee for and against any amounts awarded against Licensee in judgment or settlement of such claims.
9.5 In the event of any claim pursuant to clause 9.4 above, Pharmlogic may at its sole option and expense either:
9.5.1 procure for the Licensee the right to continue using the Service in the manner contemplated by this Agreement,
9.5.2 replace or modify the or Service as applicable so that it becomes non-infringing, or
9.5.3 terminate this Agreement forthwith by notice in writing.
9.6 Pharmlogic shall not in any circumstances have any liability if the alleged infringement is based on: (i) modification of the Pharmlogic Products by the Licensee or anyone other than Pharmlogic; or (ii) Licensee’s or any Authorised User’s use of the Service or the Pharmlogic Products otherwise than in accordance with this Agreement or in a manner contrary to the instructions given to Licensee by Pharmlogic in connection therewith; or (iii) Licensee or Authorised User’s use of the Service or the Pharmlogic Products after notice of the alleged or actual infringement from Pharmlogic or any appropriate authority; or (iv) use or combination of the Pharmlogic Products with any other software or hardware, in circumstances where, but for such combination, no infringement would have occurred.
9.7 Subject to 11.8 The Licensee shall defend Pharmlogic against all or any costs, claims, damages or expenses incurred by Pharmlogic in respect of any third party claims relating to the Licensee’s or any Authorised User’s use of the Service or the Pharmlogic Products otherwise than in accordance with this Agreement, provided that (i) Licensee is given prompt notice of such claim; (ii) Pharmlogic provides reasonable co-operation to Licensee in the defence and settlement of such claim, at Licensee’s expense; (iii) Licensee is given sole authority to defend or settle the claim; and (iv) Pharmlogic makes no admission of liability or fault itself or on behalf of Licensee.
Term and Termination
10.1 This Agreement shall commence as of the Effective Date and, unless terminated during an Evaluation Period, or as otherwise provided herein, shall continue for the Initial Term. The addition of new Licensees shall not increase the Term. Unless specified otherwise in the Term Sheet, thereafter, this Agreement shall automatically renew for successive one (1) year periods (each, a “Renewal Term”), unless (a) either Party provides the other with written notice of at least sixty (60) days where the Initial Term is based on a yearly subscription, prior to the beginning of any such Renewal Term electing to not renew this Agreement for such Renewal Term or (b) this Agreement is otherwise terminated as provided herein. Unless specified otherwise in the Term Sheet, the Initial Term and all Renewal Terms are referred to collectively as the “Term.”
10.2 Either party may terminate this Agreement by providing the other with written notice of at least ninety (90) days prior to the end of the Initial Term or any Renewal Term, to terminate this Agreement for any reason at the end of the Initial Term or the relevant Renewal Term, as the case may be.
10.3 Without affecting any other right or remedy available to it, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if: (i) the other Party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than ten (10) Business Days after being notified in writing to make such payment; or (ii) the other Party commits a material breach of any terms of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within ten (10) Business Days after being notified in writing to do so; or (iii) the other Party suspends, ceases, or threatens to suspend or cease carrying on its business or a substantial part thereof, or suffers an Insolvency Event; or (iv) another Licensee enters into an agreement with Pharmlogic for both the same Services (Part A) and the same Pharmacy Branches (Part B).
10.4 Without prejudice to any other rights or remedies hereunder to which Pharmlogic may be entitled, if Pharmlogic knows or has reasonable grounds to suspect that the Licensee is acting in breach of its obligations under this Agreement (including failure to pay the Licence Fee and any SMS Costs), Pharmlogic may notify the Licensee in writing accordingly and may suspend the Service on 3 business days’ notice until such breach is remedied or until Pharmlogic is satisfied, acting reasonably, that its suspicions are unfounded.
10.5 On termination of this Agreement for any reason (a) all licences granted under this Agreement shall immediately terminate; each Party shall return and make no further use of any Confidential Information, equipment, property and other items (and all copies of them) belonging to the other Party; and (b) any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
Limitation of Liability
11.1 This clause 11 sets out the entire financial liability of Pharmlogic to the Licensee arising under or in connection with this Agreement, in respect of any use made by the Licensee or its Authorised Users of the Service; and in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
11.2 The Licensee acknowledges that Pharmlogic shall have no responsibility for the Authorised Users when they communicate with Patients using the Service.
11.3 Except as expressly and specifically provided in this Agreement, 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 the Service and any information provided by or on behalf of Pharmlogic are provided to the Licensee on an "as is" basis.
11.4 Nothing in this Agreement excludes either Party’s liability for death or personal injury caused by its negligence, fraud or fraudulent misrepresentation or for any liabilities that cannot be excluded under applicable law.
11.5 Subject to clause 11.4 Neither party shall be liable for:
11.5.1 any consequential, indirect, special, incidental, punitive or exemplary damages, whether foreseeable or unforeseeable;
11.5.2 loss of profit, loss of business;
11.5.3 loss caused or contributed to by any employee, agent, contractor or representative of the Licensee;
11.5.4 loss caused as a result of the Service being unavailable as a result of planned downtime for the Service as notified to the Licensee;
11.5.5 loss arising from any failure of the Licensee’s infrastructure and/or utilities, loss caused as a result of the Service being unavailable caused by a Force Majeure Event, loss caused by the failure or delay of any third-party application or service or network, however arising under this Agreement; or
11.5.6 any loss or damage caused by a Virus, distributed denial-of-service attack, or other technologically harmful material that may infect the Licensee user computer equipment, computer programmes, data or other proprietary material due to your use of the Service or Pharmlogic Products unless caused by Pharmlogic’s negligence.
11.6 Each party’s aggregate liability in contract, tort (including negligence) arising out of or relating to this Agreement shall be limited to the higher of:
11.6.1 the per claim limit from its insurers in respect of the event(s) giving rise to the relevant liability;
11.6.2 the total Fees paid or payable in any one year; and
11.6.3 £1,000 (one thousand pounds).
Assignment
12.1 The Licensee shall not, without the prior written consent of Pharmlogic, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. Pharmlogic may, on notice to the Licensee assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Confidential Information and Publicity
13.1 “Confidential Information” means all confidential information (however recorded or preserved) disclosed by one Party or its employees, officers, representatives or advisers (together “Representatives”) to the other Party and the other Party’s Representatives whether before or after the Effective Date, including the terms of this Agreement; the business, affairs, Licensees, clients, suppliers, plans, intentions, market opportunities, the operations, processes, product information, know-how, technical information or trade secrets of the disclosing Party.
13.2 Confidential Information of the disclosing Party shall not include information which (i) is or becomes generally available to the public, other than as a result of a disclosure by the receiving Party or any of its Representatives; (ii) has been rightfully received by the receiving Party from a third party without confidentiality restrictions; (iii) has been independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information.; or (iv) the Parties agree in writing is not confidential or may be disclosed.
13.3 The Confidential Information of the disclosing Party will be kept confidential and will not be disclosed or divulged by the receiving Party to anyone except with the disclosing Party’s prior written permission, or as may be required by law or by the order or demand of a court or government agency or authority.
13.4 Notwithstanding the foregoing, the receiving Party may disclose the disclosing party’s Confidential Information to the receiving Party’s Representatives who need to review such Confidential Information pursuant to this Agreement, so long as they are bound by confidentiality obligations no less restrictive than those in this clause 13. The receiving Party shall be liable for any breach of these confidentiality obligations by their Representatives.
13.5 Upon expiration or earlier termination of this Agreement for any reason, the receiving Party will return to the disclosing Party or destroy (at the disclosing Party’s sole discretion) all Confidential Information of the disclosing Party and all copies thereof (except that Licensee may retain any Confidential Information needed to fulfil orders then pending as contemplated by this Agreement only until such orders are fulfilled and then must return or destroy, at Pharmlogic’s sole discretion, all Confidential Information) and, upon the written request of the disclosing Party, an authorised officer of the receiving Party will certify in writing to the disclosing Party that the receiving Party has complied with this clause 13.5. In such event, the receiving Party will continue to be bound by this clause 13.
13.6 Notwithstanding the foregoing, the Licensee permits Pharmlogic to identify the Licensee as a client. To this end, the Licensee grants Pharmlogic a perpetual, non-exclusive, royalty-free and non-transferable licence during the Term of the Agreement for Pharmlogic to use the Licensee’s logo, name and branding on the Site and in any marketing and publication materials.
Independent Contractor
14.1 The relationship between the Parties is that of independent contractors and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the Parties hereto nor authorise any Party to make or enter into any commitments for or on behalf of any other Party. Each Party confirms it is acting on its own behalf and not for the benefit of any other person.
Miscallaneous
15.1 Conflict: In the event of any conflict between the Term Sheet, these Pharmlogic Licence Terms or any other Schedules hereto, the provisions of the Term Sheet shall prevail.
15.2 Entire Agreement: This Agreement constitutes the entire Agreement between the Parties and supersedes and extinguishes all prior and contemporaneous agreements, negotiations, promises, assurances, warranties, understandings and representations between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
15.3 Amendment: This Agreement may not be amended or otherwise modified, and no variation of this Agreement shall be effective unless it is in writing signed by the Parties or their authorised representatives.
15.4 Waiver: A waiver by any Party of any of its rights hereunder shall not be binding unless in writing signed by an authorised representative of the Party expressly waiving such rights. The non-enforcement or waiver of any provision on any occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
15.5 Severability: If any provision or part-provision of this Agreement becomes or is held invalid, illegal, or unenforceable, it shall be deemed modified or deleted to the minimum extent necessary but that shall not affect the validity and enforceability of the rest of this Agreement.
15.6 Rights and Remedies: Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
15.7 Force Majeure: Neither Party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, beyond its reasonable control, including, without limitation, strikes, acts of God, war, terrorism, riot, denial of service attacks, epidemic, pandemic or compliance with any law or governmental order (“Force Majeure Event”). In such circumstances the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three (3) months, the Party not affected may terminate this Agreement by giving thirty (30) days' written notice to the other Party.
15.8 Third Party Rights: No one other than a Party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms, whether pursuant to the Contracts (Rights of Thirds Parties) Act 1999 or otherwise.
15.9 Notices: Any notice given to a Party under or in connection with this contract shall be in writing and shall be deemed to have been received: (i) if delivered by hand at the time the notice is left at the Receiving Party’s registered address; (ii) 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; and (iii) if sent by or email, at 9.00 am on the next Business Day after transmission.
15.10 Governing Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of England and the Parties agree that the English courts shall have exclusive jurisdiction.
Order Form
16.1 Licensee may submit an Order Form to Pharmlogic. Following submission of an Order Form, the Licence Terms shall become effective and the Licensee shall not be entitled to amend or withdraw such Order Form.
16.2 Pharmlogic may accept, propose amends to, or reject an Order Form in its absolute discretion.
16.3 No variation to an Order Form shall be binding unless expressly agreed in writing by Pharmlogic, or otherwise in accordance with the provisions of clause 15.3 (Amendments).
Free Trial
17.1 The provisions of this clause 17 shall apply if any Service Recipients’ (and their Authorised Users’) use of the Service is covered by a Free Trial ("Trial User"). In the event of any conflict or inconsistency between the other provisions of this Agreement as they relate to the Free Trial and the provisions of this clause 17, the provisions of this clause 17 shall prevail to the extent of the conflict or inconsistency.
17.2 Any Service Recipients and their Authorised Users who are accessing the Service as part of a Free Trial with such Free Trial acknowledge that their use of Pharmlogic’s Service may be subject to limitations, such limitations being specified in the Order Form or in writing by Pharmlogic.
Corrupt Gifts and Payments
18.1 For the purposes of this agreement the term “Prohibited Act” means:
18.1.1 committing an offence under any applicable law creating offences in respect of bribery or fraudulent acts;
18.1.2 defrauding or attempting to defraud; or
18.1.3 offering, giving or agreeing to give to any person employed by or otherwise associated with Pharmlogic any gift or consideration of any kind as an inducement or reward for:
18.1.3.1 doing or not doing (or for having done or not having done) any act in relation to the creation or performance of this agreement;
18.1.3.2 showing or not showing favour or disfavour to any person in relation to this agreement; or
18.1.3.3 entering into this agreement where commission has been paid or has been agreed to be paid by Pharmlogic or on its behalf, or to its knowledge, unless before the relevant agreement is entered into particulars of any such commission and of the terms and conditions of any such agreement for the payment of such commission have been disclosed in writing to Pharmlogic.
18.2 The Licensee shall ensure that any person associated with the Licensee in connection with this agreement shall refrain from committing, facilitating, encouraging or allowing a Prohibited Act. The Licensee shall be responsible and directly liable for any such Prohibited Act carried out by any person associated with the Licensee in connection with this agreement.
