End user licence agreement
This end user licence agreement (“EULA”) is a legal agreement between You and us and relates to use of any of our Products and/or Services.
In this EULA any defined terms shall apply in addition to those already defined in the Terms of Supply and Use:
By using our Products and/or Services, You agree to be bound by, and therefore comply with, the terms of this EULA together with the following policies (together, the “Policies”):
Acceptable Use Policy;
Privacy Policy; and
Cookie Policy.
The terms of this EULA apply to the exclusion of all other terms save for the other applicable components of these Terms of Supply and Use. If you do not agree to the terms of this EULA or any of the Policies, You must not use any of our Products and/or Services. Your access to, and use of the Products is conditional on the Terms of Supply and Use remaining in full force and effect.
***Note particularly the limitations of liability in Clause 6 of this EULA***
Licence and Use of the Products
1.1
In consideration of the mutual obligations contained herein (and, where indicated on the Confirmation Email, the payment of the Charges), we grant You the appropriate Product Licence as set out in this Clause 1.
1.2
All Product Licences granted to You shall be:
1.2.1.
non-exclusive;
1.2.2.
revocable;
1.2.3
limited to use by You (as a Organisation and a User) only; and
1.2.4
limited to use of the Product(s) to which they apply in object code form.
1.3
In relation to scope of use:
1.3.1.
You may not use the Products other than as permitted by the appropriate Product Licence without our prior written consent, and You acknowledge that additional Charges may be payable on any change of use approved by us; and
1.3.2.
You have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify or make error corrections to any of the Products in whole or in part.
1.4
You shall indemnify and hold us harmless against any loss or damage which we may suffer or incur as a result of breach by You of any third-party terms howsoever arising, and we may treat breach by You of any third-party terms as a breach of the Product Licence.
Your Obligations
2.1.
You shall:
2.1.1.
comply with any and all obligations applicable to it which are set out in this EULA, the applicable components of the Terms of Supply and Use, and/or any other Documentation notified to You from time to time by us and any other obligations which are apparent or would be ordinarily expected to be complied with by You in the ordinary course of receipt of similar software;
2.1.2.
not to do or permit anything to be done that will or may damage the business, reputation, image and/or goodwill of Ardens;
2.1.3.
be bound by (and as applicable, comply with) the Policies as referenced above; and
2.1.4.
be solely responsible for procuring and maintaining any necessary network connections and telecommunications links from Your systems.
Audit
3.1.
We (including our authorised representatives or agents) shall, on reasonable written notice, have the right to audit the Your use of the Products to ensure compliance with the obligations detailed in Clause 2 and the wider terms of this EULA.
3.2.
You acknowledge and agree that You shall provide us with access to relevant records and information necessary to conduct any audit as required from time to time.
3.3.
Where our audit reveals that You have used the Products in a manner that is not in compliance with Clause 2 and/or the wider terms of this EULA, we shall notify You of any non-compliance, and You shall have thirty (30) days from the date of such notice to come into compliance. If the non-compliance is not remedied within this period, we shall have the right to take appropriate remedial action, including but not limited to suspending Your access to the Product(s).
Use of your Data
4.1.
You acknowledge and agree that we may not use any of the Your Data or Content for any purpose other than to provide the Products and/or perform the Services except that we may make use of anonymised and aggregated data derived from the Your Data and Content (and shall include no references to You or, where relevant, any of Your Affiliates and shall be used and presented in such a way that it is not possible for any third party to discern or extrapolate any reference to You or Your Affiliates) for any purpose.
Warranties and Obligations
5.1.
You acknowledge and agree that the Products are provided “as-is.” We disclaim all other warranties, express or implied, including any warranty of merchantability or fitness for a particular purpose and any warranties arising out of course of dealing or usage in trade.
5.2.
No warranty is given by us:
5.2.1.
in respect of any Products which are the subject of a Trial Licence;
5.2.2.
apart from those warranties and obligations in respect of a Beta Licence;
5.2.3.
in respect of:
5.2.3.1.
any data uploaded by You during Your day-to-day use of the Products;
5.2.3.2.
any data uploaded by us on behalf of You; and/or
5.2.3.3.
any delays, unexpected results, loss of data or communications resulting from the uploading of such data;
5.2.4.
that the Principal GP IT System will continue to perform as it needs to in order to support the Products, and further that the functionality of the Principal GP IT System will not change, thereby potentially impeding or preventing the operation of the Products in the future;
5.2.5.
that information which the Products request from a user is relevant and complete, either in respect of any particular patient’s condition, or as to any aspect of Your business; nor that any output from a Product is relevant and complete in relation to such matters; nor that any source document relied upon by a Product is correct and relevant;
5.2.6.
that Your IT system and internet connection will perform as they need to in order to support the Products, nor that emails and other communications sent using a Product will inevitably be received by the recipient, nor that the Principal GP IT System is available to You via the internet;
5.2.7.
that the Principal GP IT System is itself suitable for recording and processing patient data and/or complies with Data Protection Law;
5.2.8.
which relieves, in whole or in part, You of any aspect of Your duty to the patient, which may include exercising independent clinical judgment, checking that communications from Products have been received in a timely fashion by the intended recipient thereof and obtaining the necessary consents from the patient for the purposes of processing the patient’s personal data using the Principal GP IT System.
5.3.
We shall use reasonable endeavours in accordance with that degree of care, skill, diligence, prudence, efficiency, foresight and timeliness which would be reasonably expected at such time from a supplier of similar services to the Services governed by these Terms of Supply and Use (“Good Industry Practice”) to ensure that the Products are free of Viruses and other malicious code.
5.4.
You shall notify us as soon as possible of any errors or functionality issues in any Product, providing any details as we may reasonably request in respect of the same. We will work with You, as well as with the provider of the Principal GP IT System, to resolve any such errors. Where errors result from issues with the Principal GP IT System, it is Your responsibility to resolve them directly with the provider.
5.5.
You warrant and undertake to ensure that:
5.5.1.
no Personal Data is made available or can be viewed, accessed, or otherwise seen by us during the supply by us of the Ardens Clinical services, and
5.5.2.
any data visible during the supply by us of the Ardens Clinical services, shall be limited to test data only and shall not contain any Personal Data.
5.6.
The medical information which may be part of the Products is provided without any representations or warranties, express or implied. Without prejudice to the generality of the foregoing paragraph, we do not warrant or represent that such medical information:
5.6.1.
will be constantly available, or available at all; or
5.6.2.
is complete, true, accurate, or up to date,
5.6.3.
nor will we have any responsibility for any inference, deduction or similar conclusion that can be taken from use of such medical information.
Indemnity and Liability
6.1.
We hold no responsibility for any content that is copied or shared with a third party in violation of this EULA.
6.2.
We hold no responsibility for any reports generated by You or us through Your use of any of the Products and/or Services and which You may rely on in the course of Your business.
6.3.
You shall indemnify us in respect of any liability or alleged liability of us arising out of or in connection with Your use or misuse of the Products.
6.4.
Nothing in this EULA shall limit or exclude the liability of either party for:
6.4.1.
death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
6.4.2.
fraud or fraudulent misrepresentation;
6.4.3.
any indemnity given in the Terms of Supply and Use; or
6.4.4.
any other liability which cannot be limited or excluded by law.
6.5.
Subject to Clause 6.4, all conditions, warranties, terms, representations and undertakings, express or implied (whether they are implied by statute, common law or in any other way) not expressly set out in this EULA are excluded to the fullest extent permitted by law.
6.6.
Subject to Clause 6.4, our liability and responsibility in relation to this EULA and any other relevant components of the Terms of Supply and Use are as detailed in the Commercial Terms and Conditions and therefore any claims must be brought by the Purchaser pursuant to the Supply Contract.
6.7.
In any event, our maximum aggregate liability under or in connection with this EULA whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to £1,000. This maximum cap does not apply to Clause 6.4.
6.8.
Subject to Clause 6.4, we shall have no liability for any indirect or consequential losses, or for any of the following types of loss or damage (whether direct or indirect):
6.8.1.
loss of anticipated profits or earnings;
6.8.2.
loss of sales or business;
6.8.3.
loss of agreements or contracts;
6.8.4.
loss of anticipated savings;
6.8.5.
losses which are due to a change in the functionality of the Principal GP IT System which impedes or prevents the operation of the Products;
6.8.6.
loss of use or corruption of software, data or information;
6.8.7.
loss of or damage to goodwill;
6.8.8.
the security of Your use of the Products;
6.8.9.
any loss arising out of or in connection with any incorrect or out-of-date information provided by You to us in connection with this EULA, a Confirmation Email (or similar); or
6.8.10.
any loss arising out of or in connection with a breach of this EULA by You.
6.9.
This Clause 6 shall survive termination of this EULA.
