Definitions
- Authorised Users: those employees agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation and Patients as further described in clause 4.3.3.
- Business Day: a day other than a Saturday Sunday or public holiday in Ireland when banks in Dublin are open for business.
- Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 12.
- Conditions: these are Vertigenius standard terms of business.
- Customer Data: the data inputted by the Patient Authorised Users or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
- Documentation: any document made available by the Supplier to the Customer whether in hardcopy or online or via the App from time to time which sets out a description of the Services and the user instructions for the Services.
- Effective Date: the date of this agreement.
- Initial Subscription Term: the initial term of this agreement as set out in Contract Details.
- Normal Business Hours: 9.00 am to 5.00 pm Irish time each Business Day.
- Patients: means patients of the Customer.
- Payment Terms: the payment terms set out in the Contract Details.
- Privacy Policy: means the privacy policy of the Supplier as notified to the Customer from time to time the current version of which can be found at https://vertigenius.com/privacy-policy;
- Renewal Period: the period described in clause 14.1.
- Services: the Software and associated services as more particularly described in the Documentation.
- Software: the online software applications provided by the Supplier as part of the Services.
- Subscription Fees: the subscription fees payable by the Customer to the Supplier as set out in the Contract Details.
- Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
- Virus: anything or device (including any software code file or program) 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.
Interpretation
- Clause schedule and paragraph headings shall not affect the interpretation of this agreement.
- 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.
- A reference to a company shall include any company corporation or other body corporate wherever and however incorporated or established.
- Unless the context otherwise requires words in the singular shall include the plural and in the plural shall include the singular.
- Unless the context otherwise requires a reference to one gender shall include a reference to the other gender.
- A reference to a statute or statutory provision is a reference to it as it is in force as of the date of this agreement.
- A reference to a statute or statutory provision shall include all subordinate legislation made as of the date of this agreement under that statute or statutory provision.
- A reference to writing or written includes e-mail.
- 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.
Not Medical Advice
- Supplier does not give medical advice. Nothing in the Services or the Software shall be considered medical advice and are provided solely to assist Customer in medical decision making.
- The information and materials available through the Services are for informational and educational purposes only and are not intended to constitute professional advice diagnosis or treatment or to substitute for your professional judgment. Customer assumes full risk and responsibility for the use of information obtained from or through the Services
- In no circumstances shall Supplier have any liability in relation to or arising from any diagnosis misdiagnosis or treatment of any Patient.
Profile Subscriptions and Authorised Users
- Subject to the Customer paying the Subscription Fees in accordance with the Payment Terms and clause 9.1 and these Conditions the Supplier hereby grants to the Customer a non-exclusive non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term.
- The Customer shall be entitled to use the Services to create Patient profiles.
- In relation to the Authorised Users the Customer undertakes that:-
- the Customer shall only permit such persons as are necessary for the Customers business operations to be Authorised Users with access to and use of the Services and the Documentation;
- each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep his password confidential and not share his account with any other person;
- The Customer shall not access store distribute or transmit any Viruses or any material during the course of its use of the Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race gender colour religious belief sexual orientation disability; or
- in a manner that is otherwise illegal or causes damage or injury to any person or property; and the Supplier reserves the right without liability or prejudice to its other rights to the Customer to disable the Customer’s access to any material that breaches the provisions of this clause.
- The Customer shall not:
- 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 attempt to copy modify duplicate create derivative works from frame mirror republish download display transmit or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
- attempt to reverse compile disassemble reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
- access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
- subject to clause 22.1 license sell rent lease transfer assign distribute display disclose or otherwise commercially exploit or otherwise make the Services and/or Documentation available to any third party except the Authorised Users or
- attempt to obtain or assist third parties in obtaining access to the Services and/or Documentation other than as provided under this clause 3.
- The Customer shall use all reasonable endeavours to prevent any unauthorised access to or use of the Services and/or the Documentation and in the event of any such unauthorised access or use promptly notify the Supplier.
Services
- The Supplier shall during the Subscription Term provide the Services and make available the Documentation to the Customer on and subject to the terms of this agreement.
- The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day seven days a week except for:
- pre-notified planned maintenance and
- unscheduled maintenance in each case which the Supplier will endeavour to perform outside Normal Business Hours.
- The Supplier will as part of the Services and at no additional cost to the Customer provide the Customer with reasonable customer support services during Normal Business Hours. The Supplier may amend the basis on which it provides support in its sole and absolute discretion from time to time.
Customer Data
- The Customer shall own all rights titles and interests in and to all of the Customer Data and shall have sole responsibility for the legality reliability integrity accuracy and quality of the Customer Data.
- The Supplier shall process the Customer Data in accordance with the data processor terms identified in the Contract Terms.
Supplier’s obligations
- The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
- The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions or modification or alteration of the Services by any party other than the Supplier or the Supplier’s doly authorised contractors or agents. If the Services do not conform with the foregoing undertaking Supplier will at its expense use all reasonable commercial endeavours to correct any such non-conformance as soon as possible or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7. Notwithstanding the foregoing the Supplier:-
- does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services Documentation and/or any information obtained by the Customer through the Services will meet the Customer’s requirements; and
- is not responsible for any delays delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities including the internet and the Customer acknowledges that the Services and Documentation may be subject to limitations delays and other problems inherent in the use of such communications facilities.
- This agreement shall not prevent the Supplier from entering into similar agreements with third parties or from independently developing using selling or licensing documentation products and/or services which are the same or similar to those provided under this agreement.
- The Supplier warrants that it has and will maintain all necessary licences consents and permissions necessary for the performance of its obligations under this agreement.
Customer’s obligation:
The Customer shall:
- provide the Supplier with:-
- all necessary cooperation in relation to this agreement; and
- all necessary access to such information as may be required by the Supplier;
- comply with all applicable laws and regulations with respect to its activities under this agreement;
- in order to provide the Services including but not limited to Customer Data security access information and configuration services;
- carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
- ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
- obtain and shall maintain all necessary licences consents and permissions necessary for the Supplier its contractors and agents to perform their obligations under this agreement including without limitation the Services;
- ensure that all Patients have consented to the use of the Services by Customer;
- ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
- be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s data centres and all problems conditions delays delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
Charges and payment
- The Customer shall pay the Subscription Fees to the Supplier in accordance with the Contract Terms.
- Unless otherwise provided in the Contract Details
- Customers will be invoiced
- annually in advance in respect of the Enterprise Fee and
- at the end of each month in respect of the number of patient users in the prior month, and
- payment must be received prior to the commencement of each month.
- If the Supplier has not received payment within 30 days after the due date and without prejudice to any other rights and remedies of the Supplier:
- the Supplier may without liability to the Customer disable the Customer’s password account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
- interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Allied Irish Bank from time to time commencing on the due date and continuing until folly paid whether before or after judgment.
- All amounts and fees stated or referred to in this agreement:
- shall be payable in Euro;
- are subject to clause 13.4.2 non-cancellable and non-refundable;
- are exclusive of value-added tax which shall be added to the Supplier’s invoice(s) at the appropriate rate.
- The Supplier shall be entitled to increase the Subscription Fees the fees payable in respect of the additional Patient profile purchased pursuant to the Contract Details at the start of each Renewal Period upon 90 days prior notice to the Customer and the Contract Details shall be deemed to have been amended accordingly.
Proprietary Rights
- The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein this agreement does not grant the Customer any rights to or in patents copyright database right trade secrets trade names trade marks (whether registered or unregistered) or any other rights or licences in respect of the Services or the Documentation.
- The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under and in accordance with the terms of this agreement.
Confidentiality
- Each party may be given access to Confidential Information from the other party to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
- is or becomes publicly known other than through any act or omission of the receiving party;
- was in the other party’s legal possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
- is independently developed by the receiving party which independent development can be shown by written evidence; or
- is required to be disclosed by law by any court of competent jurisdiction or by any regulatory or administrative body.
- For the avoidance of doubt, Customer Data is Confidential Information save to the extent use or disclosure is permitted by the Supplier under the Privacy Policy.
- Each party shall hold the other’s Confidential Information in confidence and unless required by law not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
- Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
- Neither party shall be responsible for any loss destruction alteration or disclosure of Confidential Information caused by any third party.
- The Customer acknowledges that details of the Services and the results of any performance tests of the Services constitute the Supplier’s Confidential Information.
- The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
- This clause 11 shall survive termination of this agreement however arising.
- No party shall make or permit any person to make any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed) except as required by law by any governmental or regulatory authority (including without limitation any relevant securities exchange) any court or other authority of competent jurisdiction.
Indemnity
- The Supplier shall defend the Customer its officers directors and employees against any claim that the Services or Documentation infringes any patent valid in Ireland effective as of the Effective Date copyright trade mark database right or right of confidentiality and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims provided that:
- the Supplier is given prompt notice of any such claim;
- the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim at the Supplier’s expense; and
- the Supplier is given sole authority to defend or settle the claim.
- In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services replace or modify the Services so that they become non-infringing or if such remedies are not reasonably available terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
- In no event shall the Supplier its employees agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
- a modification of the Services or Documentation by anyone other than the Supplier; or
- the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
- the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
- The foregoing [and clause 13.4.2.2] state the Customer’s sole and exclusive rights and remedies and the Supplier’s (including the Supplier’s employees’ agents’ and subcontractors) entire obligations and liability for infringement of any patent copyright trade mark database right or right of confidentiality.
- The Customer shall indemnify and keep indemnified the Supplier against any loss against any loss it may suffer arising from or in connection with:-
- Any failure of the Customer to comply with any applicable law or regulation;
- Any breach by the Customer of this Agreement;
- The content of or use by the Customer or Permitted Users of the Customer Data.
Limitation of liability
- This clause 13 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees agents and sub-contractors) to the Customer:
- arising under or in connection with this agreement;
- in respect of any use made by the Customer of the Services and Documentation or any part of them; and
- in respect of any representation statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
- Except as expressly and specifically provided in this agreement:
- the Customer assumes sole responsibility for information and results obtained from the use of the Services and the Documentation by the Customer and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information instructions or scripts provided to the Supplier by the Customer in connection with the Services or any actions taken by the Supplier at the Customer’s direction;
- 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 Services and the Documentation are provided to the Customer on an “as is” basis.
- Nothing in this agreement excludes the liability of the Supplier:
- for death or personal injury caused by the Supplier’s negligence; or
- for fraud or fraudulent misrepresentation.
- Subject to clause 13.2 and clause 13.3:
- the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty) contract misrepresentation restitution or otherwise for any loss of profits loss of business depletion of goodwill and/or similar losses or loss or corruption of data or information or pure economic loss or for any special indirect or consequential loss costs damages charges or expenses however arising under this agreement; and
- the Supplier’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 this agreement shall be limited to the lesser of €1000 or the total Subscription Fees paid for the Profile Subscriptions during the 12 months immediately preceding the date on which the claim arose.
Term and Termination
- This agreement shall unless otherwise terminated as provided in this clause 14 commence on the Effective Date and shall continue for the Initial Subscription Term and thereafter this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period) unless:
- either party notifies the other party of termination in writing before the end of the Initial Subscription Term or any Renewal Period in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
- otherwise terminated in accordance with the provisions of this agreement;
- and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
- 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:
- 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 14 days after being notified in writing to make such payment;
- 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 14 days after being notified in writing to do so;
- the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
- the other party suspends or threatens to suspend the 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 570 of the Companies Act 2014;
- the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into any compromise or arrangement with its creditors 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;
- 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;
- an application is made to the court or an order is made for the appointment of an administrator if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
- any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2.4 to clause 14.2.7 (inclusive);
- the other party suspends or ceases or threatens to suspend or cease carrying on all or a substantial part of its business.
- On termination of this agreement for any reason:
- all licences granted under this agreement shall immediately terminate;
- 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;
- the supplier shall deliver to the Customer the then most recent backup of the Customer Data. The Supplier shall use reasonable commercial endeavours to deliver the Customer Data to the Customer within 30 days of termination provided that the Customer has at that time paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in delivering the Customer Data.
- the Supplier shall continue to store Customer Data for so long as is legally required after which time the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession. For the avoidance of doubt, the Supplier shall be entitled to retain any aggregated anonymised data indefinitely; and
- 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.
Force majeure
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement or from carrying on its business by acts events omissions or accidents beyond its reasonable control including without limitation strikes lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party) failure of a utility service or transport or telecommunications network act of God war riot civil commotion malicious damage compliance with any law or governmental order role 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.
Conflict
If there is an inconsistency between any of the provisions in the main body of this agreement and the Schedules the provisions in the main body of this agreement shall prevail.
Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver
No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
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.
Severance
- If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid unenforceable or illegal the other provisions shall remain in force.
- 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.
Entire agreement
- This agreement and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement understanding or agreement between them relating to the subject matter they cover.
- Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking promise assurance statement representation warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement other than as expressly set out in this agreement.
Assignment
- The Customer shall not without the prior written consent of the Supplier assign transfer charge sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
- The Supplier may at any time assign a transfer charge sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
No partnership or agency
Nothing in this agreement is intended to or shall operate to create a partnership between the parties or authorise either party to act as agent for the other and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty the assumption of any obligation or liability and the exercise of any right or power).
Notices
- Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid post or recorded delivery post to the other party at its address set out in this agreement or such other address as may have been notified by that party for such purposes or sent by email to the other party’s email number as set out in this agreement.
- A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid 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 the post. A notice sent by email shall be deemed to have been received at 9 am the next working day after transmission.
Governing law
This agreement 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 Ireland.
Jurisdiction
Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).