Subscription Terms And Conditions
Agreed Terms
1. INTERPRETATION
1.1 The definitions in this clause apply in the Agreement.
Agreement: the agreement between the Subscriber and RHH for the supply of the Services in accordance with the Subscription Term Sheet and these Conditions.
Authorised Users: those employees, agents and independent contractors of the Subscriber who are authorised by the Subscriber to use the Services and the Protocols, as further described in clause 2.2.4.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly. Conditions: these subscription terms and conditions set out in clause 1 to clause 16 inclusive.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5 or clause 11.6.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications);
Effective Date: the date identified as such in the Subscription Term Sheet.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Protocols: the pharmacy specific protocols and other content made available to the Subscriber by RHH through the Services. Renewal Period: the period described in clause 14.1.
RHH: Robin Hood Health Limited (Co. No. 09364385) a limited company incorporated in England and Wales whose registered office address is at 18-19 Western Road, Hove, BN3 1AE.
Services: the subscription services provided by RHH to the Subscriber under the Agreement via askshilpa.com.
Software: the online software applications provided by the Supplier as part of the Services.
Subscriber: the person or entity entitled to receive the Services pursuant to the Agreement, as identified in the Subscription Term Sheet.
Subscription Term Sheet: the document headed “Subscription Term Sheet” which sets out key details relevant to the Agreement.
Subscriber Data: the data inputted by the Subscriber, Authorised Users, or RHH on the Subscriber’s behalf for the purpose of using the Services or facilitating the Subscriber’s use of the Services.
Support Services Policy: RHH’s policy for providing support in relation to the Services as available at [INSERT WEB ADDRESS] or such other website address as may be notified to the Subscriber from time to time.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
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 Clause headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement.
1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.
1.9 A reference to writing or written includes faxes and e-mail.
2. USER SUBSCRIPTIONS
2.1 Subject to the Subscriber purchasing the User Subscriptions in accordance with clause 3.3 and clause 9.1, the restrictions set out in this clause 2 and the other terms and conditions of the Agreement, RHH hereby grants to the Subscriber a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services to access the Protocols during the Subscription Term solely for the Subscriber’s internal business operations.
2.2 In relation to the Authorised Users, the Subscriber undertakes that:
2.2.1 the maximum number of Authorised Users that it authorises to access and use the Services and the Protocols shall not exceed the number of User Subscriptions it has purchased from time to time;
2.2.2 it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Protocols;
2.2.3 each Authorised User shall keep a secure password for his or her use of the Services and Protocols, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his password confidential;
2.2.4 it shall permit RHH or RHH’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and RHH’s data processing facilities to audit compliance with the Agreement. Each such audit may be conducted no more than once per quarter, at RHH’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Subscriber’s normal conduct of business; 2.2.5 if any of the audits referred to in clause 2.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to RHH’s other rights, the Subscriber shall promptly disable such passwords and RHH shall not issue any new passwords to any such individual; and 2.2.6 if any of the audits referred to in clause 2.2.5 reveal that the Subscriber has underpaid Subscription Fees to RHH, then without prejudice to RHH’s other rights, the Subscriber shall pay to RHH an amount equal to such underpayment as calculated in accordance with the prices set out in the Subscription Term Sheet within 10 Business Days of the date of the relevant audit.
2.3 The Subscriber shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3 depicts sexually explicit images;
2.3.4 promotes unlawful violence;
2.3.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.3.6 is otherwise illegal or causes damage or injury to any person or property;
and RHH reserves the right, without liability or prejudice to its other rights to the Subscriber, to disable the Subscriber’s access to any material that breaches the provisions of this clause.
2.4 The Subscriber shall not:
2.4.1 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 the Agreement: (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or (b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-preventable form all or any part of the Software; or
2.4.2 attempt to remove or obscure any copyright notice or other notices contained within the Protocols; or
2.4.3 access all or any part of the Services and Protocols in order to build a product or service which competes with the Services and/or the Protocols; or
2.4.4 use the Services and/or Protocols to provide services to third parties other than the Subscriber’s patients; or 2.4.5 subject to clause 16.7, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Protocols available to any third party except the Authorised Users, or
2.4.6 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Protocols, other than as provided under this clause 2; or
2.4.7 introduce or permit the introduction of, any Virus into RHH’s network and information systems.
2.5 The Subscriber shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Protocols and, in the event of any such unauthorised access or use, promptly notify RHH. 2.6 The rights provided under this clause 2 are granted to the Subscriber only, and shall not be considered granted to any subsidiary or holding company of the Subscriber.
3. ADDITIONAL USER SUBSCRIPTIONS 3.1 Subject to clause 3.2 and clause 3.3, the Subscriber may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Subscription Term Sheet and RHH shall grant access to the Services and the Protocols to such additional Authorised Users in accordance with the provisions of the Agreement.
3.2 If the Subscriber wishes to purchase additional User Subscriptions, the Subscriber shall notify RHH in writing. RHH shall evaluate such request for additional User Subscriptions and respond to the Subscriber with approval or rejection of the request. Where RHH approves the request, RHH shall activate the additional User Subscriptions within 5 days of its approval of the Subscriber’s request.
3.3 If RHH approves the Subscriber’s request to purchase additional User Subscriptions, the Subscriber shall, within 30 days of the date of RHH’s invoice, pay to RHH the relevant fees for such additional User Subscriptions as set out in the Subscription Term Sheet and, if such additional User Subscriptions are purchased by the Subscriber part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by RHH for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
4. SERVICES
4.1 RHH shall, during the Subscription Term, provide the Services and make available the Protocols to the Subscriber on and subject to the terms of the Agreement.
4.2 RHH shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
4.2.1 planned maintenance carried out during the maintenance window of 10.00 pm to 6.00 am UK time; and
4.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that RHH has used reasonable endeavours to give the Subscriber at least 6 Normal Business Hours’ notice in advance.
4.3 RHH will, as part of the Services and at no additional cost to the Subscriber, provide the Subscriber with RHH’s standard customer support services during Normal Business Hours in accordance with RHH’s Support Services Policy in effect at the time that the Services are provided. RHH may amend the Support Services Policy in
its sole and absolute discretion from time to time. The Subscriber may purchase enhanced support services separately at RHH’s then current rates.
5. SUBSCRIBER DATA
5.1 The Subscriber shall own all right, title and interest in and to all of the Subscriber Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Subscriber Data.
5.2 RHH shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Subscriber Data available at www.askshilpa.com or such other website address as may be notified to the Subscriber from time to time, as such document may be amended from time to time by RHH in its sole discretion.
5.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
5.4 The parties acknowledge that:
5.4.1 if RHH processes any personal data on the Subscriber’s behalf when performing its obligations under this Agreement, the Subscriber is the controller and RHH is the processor for the purposes of the Data Protection Legislation.
5.4.2 The Schedule sets out the scope, nature and purpose of processing by RHH, the duration of the processing and the types of personal data and categories of data subject.
5.4.3 the personal data may be transferred or stored outside the EEA or the country where the Subscriber and the Authorised Users are located in order to carry out the Services and RHH’s other obligations under this Agreement. 5.5 Without prejudice to the generality of clause 5.3, the Subscriber will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to RHH for the duration and purposes of this Agreement so that RHH may lawfully use, process and transfer the personal data in accordance with this Agreement on the Subscriber’s behalf. 5.6 Without prejudice to the generality of clause 5.3, RHH shall, in relation to any personal data processed in connection with the performance by RHH of its obligations under this Agreement:
5.6.1 process that personal data only on the documented written instructions of the Subscriber unless RHH is required by the laws of any member of the European Union or by the laws of the European Union applicable to RHH and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where RHH is relying on Applicable Laws as the basis for processing personal data, RHH shall promptly notify the Subscriber of this before performing the processing
required by the Applicable Laws unless those Applicable Laws prohibit RHH from so notifying the Subscriber;
5.6.2 not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
(a) the Subscriber or RHH has provided appropriate safeguards in relation to the transfer;
(b) the data subject has enforceable rights and effective legal remedies;
(c) RHH complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
(d) RHH complies with reasonable instructions notified to it in advance by the Subscriber with respect to the processing of the personal data;
5.6.3 assist the Subscriber, at the Subscriber’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5.6.4 notify the Subscriber without undue delay on becoming aware of a personal data breach;
5.6.5 at the written direction of the Subscriber, delete or return personal data and copies thereof to the Subscriber on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
5.6.6 maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and immediately inform the Subscriber if, in the opinion of RHH, an instruction infringes the Data Protection Legislation.
5.7 Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
5.8 The Subscriber consents to RHH appointing third-party processors of personal data under this Agreement. RHH confirms that it has entered or (as the case may be) will
enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 5 and in either case which RHH confirms reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Subscriber and RHH, RHH shall remain fully
5.9 liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 5. 5.10 Either party may, at any time on not less than 30 days’ notice, revise this clause 5 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).
6. THIRD PARTY PROVIDERS
The Subscriber acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. RHH makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Subscriber, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Subscriber and the relevant third party, and not RHH. RHH recommends that the Subscriber refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. RHH does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
7. RHH’S OBLIGATIONS
7.1 RHH undertakes that the Services will be performed with reasonable skill and care. 7.2 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 RHH’s instructions, or modification or alteration of the Services or Protocols by any party other than RHH or RHH’s duly 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 promptly, or provide the Subscriber with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Subscriber’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1.
7.3 RHH:
7.3.1 does not warrant that:
(a) the Subscriber’s use of the Services will be uninterrupted or error-free; or
(b) that the Services, Protocols and/or the information obtained by the Subscriber through the Services will meet the Subscriber’s requirements; or
(c) the Software or the Services will be free from vulnerabilities which, when exploited, may negatively impact on the operation of computer hardware or software.
7.3.2 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 Subscriber acknowledges that the Services and Protocols may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 The Agreement shall not prevent RHH from entering into similar agreements with third parties, or from independently developing, using, selling or licensing Protocols, products and/or services which are similar to those provided under the Agreement.
7.5 RHH warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
8. SUBSCRIBER’S OBLIGATIONS
8.1 The Subscriber shall:
8.1.1 provide RHH with:
(a) all necessary co-operation in relation to the Agreement; and
(b) all necessary access to such information as may be required by RHH;
in order to provide the Services, including but not limited to Subscriber Data, security access information and configuration services;
8.1.2 without affecting its other obligations under the Agreement, comply with all applicable laws and regulations with respect to its activities under the Agreement;
8.1.3 carry out all other Subscriber responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Subscriber’s provision of such assistance as agreed by the parties, RHH may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.4 ensure that the Authorised Users use the Services and the Protocols in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s breach of the Agreement;
8.1.5 obtain and shall maintain all necessary licences, consents, and permissions necessary for RHH (and if relevant, its contractors and agents) to perform their obligations under the Agreement, including without limitation the Services; and
8.1.6 be, to the extent permitted by law and except as otherwise expressly provided in the Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to RHH’s data centres, and all problems, conditions, delays, delivery failur
damage arising from or relating to the Subscriber’s network connections or telecommunications links or caused by the internet.
9. CHARGES AND PAYMENT
9.1 The Subscriber shall pay the Subscription Fees to RHH for the User Subscriptions in accordance with this clause 9.
9.2 The Subscriber shall on the Effective Date provide to RHH valid, up-to-date and complete credit or debit card details and any other relevant valid, up-to-date and complete contact and billing details and, if the Subscriber provides:
9.2.1 its credit or debit card details to RHH, the Subscriber hereby authorises RHH to bill such card:
(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and (b) subject to clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
9.2.2 its approved purchase order information to RHH, RHH shall invoice the Subscriber:
(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and (b) subject to clause 14.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Subscriber shall pay each invoice within 30 days after the date of such invoice.
9.3 If RHH has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of RHH:
9.3.1 RHH may, without liability to the Subscriber, disable the Subscriber’s password, account and access to all or part of the Services and RHH shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.3.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of RHH’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and fees stated or referred to in the Agreement:
9.4.1 shall be payable in pounds sterling; 9.4.2 are, subject to clause 13.3.2, non-cancellable and non-refundable;
9.4.3 are exclusive of value added tax, which shall be added to RHH’s invoice(s) at the appropriate rate.
9.5 RHH shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 at the start of each Renewal Period upon 90 days’ prior notice to the Subscriber.
10. PROPRIETARY RIGHTS
10.1 The Subscriber acknowledges and agrees that RHH owns all right, title and interest (including all copyrights and other intellectual property rights) in the Services and the Protocols (in both print and machine-readable forms). Except as expressly stated herein, the Agreement does not grant the Subscriber any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other intellectual property rights or licences in respect of the Services or the Protocols.
10.2 RHH confirms that it has all the rights in relation to the Services and the Protocols that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Agreement.
11. CONFIDENTIALITY
11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party’s lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence. 11.2 Subject to clause 11.4, each party shall hold the other’s Confidential Information in confidence and 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 the Agreement.
11.3 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 the Agreement.
11.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party
as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.5 The Subscriber acknowledges that details of the Services, and the results of any performance tests of the Services, constitute RHH’s Confidential Information.
11.6 RHH acknowledges that the Subscriber Data is the Confidential Information of the Subscriber.
11.7 No party shall make, or permit any person to make, any public announcement concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction. 11.8 The above provisions of this clause 11 shall survive termination of the Agreement, however arising.
12. INDEMNITY
12.1 The Subscriber shall defend, indemnify and hold harmless RHH against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Subscriber’s use of the Services and/or Protocols, provided that:
12.1.1 the Subscriber is given prompt notice of any such claim;
12.1.2 RHH provides reasonable co-operation to the Subscriber in the defence and settlement of such claim, at the Subscriber’s expense; and
12.1.3 the Subscriber is given sole authority to defend or settle the claim.
12.2 RHH shall defend the Subscriber, its officers, directors and employees against any claim that the Subscriber’s use of the Services or Protocols in accordance with the Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Subscriber for any amounts awarded against the Subscriber in judgment or settlement of such claims, provided that:
12.2.1 RHH is given prompt notice of any such claim;
12.2.2 the Subscriber provides reasonable co-operation to RHH in the defence and settlement of such claim, at RHH’s expense; and
12.2.3 RHH is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, RHH may procure the right for the Subscriber 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 the Agreement on 2 Business Days’ notice to the Subscriber without any additional liability or obligation to pay liquidated damages or other additional costs to the Subscriber.
12.4 In no event shall RHH, its employees, agents and sub-contractors be liable to the Subscriber to the extent that the alleged infringement is based on:
12.4.1 a modification of the Services or Protocols by anyone other than RHH; or
12.4.2 the Subscriber’s use of the Services or Protocols in a manner contrary to the instructions given to the Subscriber by RHH; or
12.4.3 the Subscriber’s use of the Services or Protocols after notice of the alleged or actual infringement from RHH or any appropriate authority. 12.5 The foregoing and clause 13.3.2 states the Subscriber’s sole and exclusive rights and remedies, and RHH’s (including RHH’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13. LIMITATION OF LIABILITY
13.1 Except as expressly and specifically provided in the Agreement:
13.1.1 the Subscriber assumes sole responsibility for results obtained from the use of the Services and the Protocols by the Subscriber, and for conclusions drawn from such use;
13.1.2 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 the Agreement; and
13.1.3 the Services and the Protocols are provided to the Subscriber on an “as is” basis. RHH makes no express warranties under the Agreement, including without limitation that the Services and the Protocols are or will be complete or free from errors or that information will continue to be available to RHH to enable RHH to keep the Services and Protocols up to date.
13.2 Nothing in the Agreement excludes the liability of RHH:
13.2.1 for death or personal injury caused by RHH’s negligence; or
13.2.2 for fraud or fraudulent misrepresentation. 13.3 Subject to clause 13.1 and clause 13.2:
13.3.1 RHH 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 Agreement; and
13.3.2 RHH’s total aggregate liability in contract (including in respect of the indemnity at clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
14. TERM AND TERMINATION
14.1 The Agreement shall commence on the Effective Date and, unless otherwise terminated as provided in this clause 14, shall continue for the Initial Subscription Term and, thereafter, the Agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
14.1.1 either party notifies the other party of termination, in writing, at least 30 days 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
14.1.2 otherwise terminated in accordance with the provisions of the Agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:
14.2.1 the other party fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 5 days after being notified in writing to make such payment;
14.2.2 the other party commits a material breach of any other term of the 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;
14.2.3 the other party repeatedly breaches any of the terms of the 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 the Agreement;
14.2.4 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, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986 or if the other party (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or where the other party, (being a partnership) has any partner to whom any of the foregoing apply;
14.2.5 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 (being a company) 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;
14.2.6 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 (being a company, limited liability partnership or partnership) 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;
14.2.7 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;
14.2.8 the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
14.2.9 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;
14.2.10 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
14.2.11 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 14.2.10 (inclusive);
14.2.12 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
14.2.13 there is a change of control of the other party; 14.2.14 any warranty given by RHH in clause 7.5 of the Agreement is found to be untrue or misleading; or
14.2.15 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation; or
14.2.16 the other party (being an individual) is the subject of a bankruptcy petition, application or order;
14.3 On termination of this Agreement for any reason:
14.3.1 all licences granted under this Agreement shall immediately terminate and the Subscriber shall immediately cease all use of the Services and/or the Protocols;
14.3.2 each party shall return and make no further use of any Protocols and other items (and all copies of them) belonging to the other party;
14.3.3 RHH may destroy or otherwise dispose of any of the Subscriber Data in its possession in accordance with clause 5.6.3, unless RHH receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Subscriber of the then most recent back-up of the Subscriber Data. RHH shall use reasonable commercial endeavours to deliver the back-up to the Subscriber within 30 days of its receipt of such a written request, provided that the Subscriber 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 Subscriber shall pay all reasonable expenses incurred by RHH in returning or disposing of Subscriber Data; and
14.3.4 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.
15. FORCE MAJEURE
RHH shall have no liability to the Subscriber under the Agreement if it is prevented from or delayed in performing its obligations under the 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 RHH 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 Subscriber is notified of such an event and its expected duration.
16. GENERAL
16.1 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.2 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.
16.3 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.
16.4 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
16.5 Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
16.6 Assignment. The Subscriber shall not, without the prior written consent of RHH, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. RHH 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 this Agreement.
16.7 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).
16.8 Third party rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
16.9 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 first-class 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 fax to the other party’s fax number as set out in this Agreement.
16.9.1 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 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. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
16.10 Governing law and jurisdiction. 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 England and Wales. 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 this Agreement or its subject matter or formation (including non-contractual disputes or claims).
SCHEDULE
Processing, Personal Data and Data Subjects
1. Processing by RHH
1.1 Scope
Processing by RHH to allow it to administer the Service in accordance with these terms
1.2 Nature
Processing consists of the following: collecting, saving, transferring, restricting and deleting data
1.3 Purpose of processing:
To provide the Services
1.4 Duration of the processing
The Subscription Term
1.5 Types of personal data
Names
Email addresses
Payment/financial information in relation to the Charges
1.6 Categories of data subject
Subscribers and those individuals who have a User Subscription