CLINICALWILL.APP – SUBSCRIBER AGREEMENT
Toller Ltd trading as ClinicalWill.App incorporated and registered in England
and Wales with company number 10901428 whose registered office is at Europe
House, Goldstone Villas, Hove, BN3 3RQ (the “Supplier”); and
person or entity (the “Client”) defined as such on the order confirmation for
the Client taking up a subscription to the ClinicalWill.App Services as herein
Supplier has developed and/or licensed certain software applications and
platforms which it makes available to subscribers via the internet on a paid
subscription basis for the purpose of document management, storage and
Client wishes to use the Supplier's service in its business operations.
Supplier has agreed to provide and the Client has agreed to take and pay for
the Services subject to these terms and conditions (“These Terms”).
Terms shall be deemed accepted by the Client either on first use of the
Services or when confirmed by electronic communication to the Supplier,
whichever is the soonest.
1.1 The definitions and
rules of interpretation in this clause shall apply in These Terms.
Authorised Users: those employees, independent contractors of the Client, Trustees
and/or Next of Kin who are entitled to use the Software.
Billing Days (and each one a Billing Day): the first day of the Subscription
Term and the same date each calendar month thereafter for the duration of the
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Confidential Information: information that is proprietary or confidential and is either
clearly labelled as such or identified as Confidential Information in clause 9.
Client: the party seeking to engage with the Supplier under These Terms.
Client Data: the data inputted by or at the instigation of the Client, for
the purpose of using the Services.
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: all
applicable laws which apply to each party from time to time including
Regulation (EU) 2016/679 of the European Parliament and of the Council on the
protection of natural persons with regard to the processing of personal data
and on the free movement of such data (the “general
data protection” or “GDPR”),
the UK Data Protection Act 2018, the UK GDPR and the Privacy and Electronic
Communications Regulations 2003.
Documentation: the documents made available to the Client by the Supplier which
set out a description of the Services, the Client instructions for the
Services, the tests and other materials underlying the Services and any reports
generated through the Client’s use of the Services.
Initial Subscription Term: the initial term for the supply of Services starting on the date
of first use of the Services for a period of 12 months.
Normal Business Hours: 9.00 am to 6.00 pm local UK time, each Business Day.
Renewal Period: further 12 month period.
Services: the subscription services provided by the Supplier to the Client
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 Client to the Supplier for
the Services, as set out in the Documentation.
Subscription Term: (being the Initial Subscription Term together with any
subsequent 12-month Renewal Period).
Supplier: Michael Toller Ltd, trading as ClinicalWill.app who owns or
licenses the intellectual property rights to the Services and the Documentation.
Virus: any thing or device (including any software, code, file or
computer programme) which may prevent, impair or otherwise adversely affect
access to and/or 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 Client’s experience of the
Services, including worms, trojan horses, viruses and other similar things or
2.1 Subject to These
Terms and the Documentation the Supplier hereby grants to the Client a
non-exclusive, non-transferable right and licence to use and enable use of the
Services in the manner set out in the Documentation during the Subscription
Term (not for general re-sale without the express written consent of the Supplier).
2.2 The Client
undertakes that subject to These Terms and the Documentation:
(a) it is not a minor;
(b) it shall keep
secure any login credential including passwords issued to it for the use of the
Services and that it shall ensure that all Authorised Users keep such login
(c) it shall only use
the Services for its own business purposes;
2.3 The Client and its
Authorised Users shall not access, store, distribute or transmit any Viruses,
or any material during the course of its use of the Services that:
(a) is unlawful,
harmful, threatening, defamatory, obscene, infringing, harassing or racially or
(b) facilitates illegal
(c) depicts sexually
(d) promotes unlawful
(e) is discriminatory
based on race, gender, colour, religious belief, sexual orientation,
(f) 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
Client, to disable the Client's access to any hosted material that breaches the
provisions of this clause.
2.4 The Client shall
(a) 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 hereunder:
(i) 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
(ii) attempt to reverse
compile, disassemble, reverse engineer or otherwise reduce to human-perceivable
form all or any part of the Software; or
(b) 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
(c) subject to clause
18.1, license, sell, rent, lease, transfer, assign, or otherwise commercially
exploit, or otherwise make the Services and/or Documentation available for
exploitation by any third party, or
(d) attempt to obtain,
or assist third parties in obtaining, access to the Services and/or
Documentation, other than as provided under this clause 2; and
2.5 The Client 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.
2.6 The rights provided
under this clause 2 are granted to the Client only and not to any third party.
2.7 The Client is
responsible for ensuring its Authorised Users can access the Services and keep
their passwords and email addresses up to date in this regard.
3.1 The Supplier shall,
during the Subscription Term, provide the Services and supply the Documentation
to the Client subject to These Terms. The Supplier does not provide advice or
professional guidance in relation to the Services. The Client shall carry out
its own due diligence in relation to the nature of the Services and their
3.2 The Supplier shall
use commercially reasonable endeavours to make the Services available 24 hours
a day, seven days a week.
3.4 The Supplier will
use reasonable endeavours to give the Client notice of any planned maintenances
to the Software or Services.
3.5 The Supplier will,
as part of the Services and at no additional cost to the Client, provide the
Client with the Supplier's standard Client support services during Normal
4.1 The Client shall
own all right, title and interest in and to all of the Client Data and shall
have sole responsibility for the legality, reliability, integrity, accuracy and
quality of the Client Data.
4.2 The Supplier shall
follow its standard archiving procedures for Client Data. In the event of any
loss or damage to Client Data, the Client's sole and exclusive remedy shall be
for the Supplier to use reasonable commercial endeavours to restore the lost or
damaged Client Data from the latest back-up of such Client Data maintained by
the Supplier in accordance with its standard archiving procedure. The Supplier
shall not be responsible for any loss, destruction, alteration or disclosure of
Client Data caused by any third party.
4.3 The Client
acknowledges that the Supplier does not, as part of its operations in providing
the Services, collect personal data for its own purposes. All data collected as
a result of the use of the Services is stored securely and confidentially by
the Supplier. However, the Supplier shall, in providing the Services, comply
with its legal and statutory obligations relating to the privacy and security
of any personal data provided by the Client’s service users. Anonymised data
may be used by the Supplier to improve its services or for general
dissemination of anonymised analysis to the relevant industry and to Clients.
4.4 If the Supplier
processes any personal data on the Client's behalf when performing its
obligations, the parties record their intention that the Client shall be the
data controller and the Supplier shall be a data processor and in any such case:
(a) the Client
acknowledges and agrees that the personal data may be transferred or stored
outside the EEA in order to carry out the Services and
the Supplier's other obligations;
(b) the Client shall
ensure that the Client is entitled to transfer the relevant personal data to
the Supplier so that the Supplier may lawfully use, process and transfer the
personal data in accordance with These Terms on the Client's behalf;
(c) the Client shall
ensure that the relevant third parties have been informed of, and have given
their consent to, such use, processing, and transfer as required by all
applicable data protection legislation;
(d) the Supplier shall
process the personal data only in accordance with These Terms, the Data Processing Agreement, which forms part of These Terms, and any
lawful instructions reasonably given by the Client from time to time; and
(e) each party shall
take appropriate technical and organisational measures against unauthorised or
unlawful processing of the personal data or its accidental loss, destruction or
5.1 The Supplier
undertakes that the Services will be performed substantially in accordance with
the Documentation and with reasonable skill and care. Outcomes from the
Client’s use of the Services shall be delivered to the electronic location(s)
as may be notified to the Supplier and agreed from time to time.
5.2 The undertaking at
clause 5.1 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 duly authorised contractors or agents. If the Services do not
conform with the foregoing undertaking, the Supplier will, at its expense, use
all reasonable commercial endeavours to correct any such non-conformance
promptly, or provide the Client with an alternative means of accomplishing the
desired performance. Such correction or substitution constitutes the Client's
sole and exclusive remedy for any breach of the undertaking set out in clause
5.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant
that the Client's use of the Services will be uninterrupted or error-free; or
that the Services, Documentation and/or the information obtained by the Client
through the Services will meet the Client's requirements; and
(b) is not responsible
for any delays, delivery failures, or any other loss or damage resulting from
the transfer of data over communications networks and facilities, including the
internet, and the Client acknowledges that the Services and Documentation may
be subject to limitations, delays and other problems inherent in the use of
5.3 Nothing in These
Terms shall 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 similar to those provided
5.4 The Supplier
warrants that it has and will maintain all necessary licences, consents, and
permissions necessary for the performance of its obligations.
(a) provide the
(i) all necessary
(ii) all necessary
access to such information as may be required by the Supplier; in order to
provide the Services, including but not limited to Client Data, security access
information and technical information required for any configuration services;
(b) comply with all
applicable laws and regulations with respect to its activities hereunder;
(c) carry out all other
Client responsibilities set out in These Terms and in the Documentation in a
timely and efficient manner. In the event of any delays in the Client's
provision of such assistance as agreed by the parties, the Supplier may adjust
any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that it uses
the Services and the Documentation in accordance with These Terms;
(e) obtain and shall
maintain all necessary licences, consents, and permissions necessary for the
Supplier, its contractors and agents to perform their obligations hereunder,
including without limitation the Services;
(f) ensure that its
network and systems comply with the relevant specifications provided by the
Supplier from time to time;
(g) be solely
responsible for informing all users of the Services the technical specification
of any equipment required to use the Services (including but not limited to
providing correct information in relation to the delivery of outcomes from the
use of the Services); and
(h) 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 Client's (or any Clients enabled by the
Client) network connections or telecommunications links or caused by the
CHARGES AND PAYMENT
7.1 The Client shall
pay the Subscription Fees to the Supplier in accordance with this clause 7 and
7.2 The Supplier shall
invoice the Client:
(i) in advance of the
Initial Subscription Term if the Client is paying annually; or
(ii) on each Billing
Day for the Subscription Fees if the |Client is paying monthly
7.3 If the Supplier
does not received payment before the start of the Initial Subscription Term or
any Renewal Period, and without prejudice to any other rights and remedies of
the Supplier, the Supplier may, without liability to the Client, disable the
Client's login data, passwords, 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.
7.4 All amounts and
fees stated or referred to:
(a) shall be payable in
(b) are, subject to clause 11.4(b),
non-cancellable and non-refundable;
(c) are exclusive of
value added tax, or other local sales taxes. Where applicable value added tax
shall be added to the Supplier's invoice(s) at the appropriate rate. Where
local sales tax or value added tax is accounted for by the purchaser of
supplies the Client shall make its own arrangements for payment, after
providing the Supplier with appropriate information.
7.5 The Supplier shall
be entitled to increase the Subscription Fees at the start of each Renewal Period.
that the Subscription Fees can at the Supplier’s sole discretion be waived by
the Supplier for a period to be determined by the Supplier; e.g., for trial use
by the Client, These Terms shall remain in full effect.
8.1 The Client
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, the Supplier does not grant the Client any rights to,
or in, patents, copyright, database right, trade secrets, trade names,
trademarks (whether registered or unregistered), or any other rights or
licences in respect of the Services or the Documentation, and the Supplier
shall from the Client acquire an irrevocable worldwide transferable license to
use any and all ideas and approaches to improve the Services created by the
Client and notified to the Supplier.
8.2 To the extent that
the Client provides input to supplement the content of the Services, the Client
hereby confirms and warrants that it owns all intellectual property rights and
title to provide said content (or a licence for its use in this manner) and
shall indemnify and keep the Supplier indemnified, without limitation, against
all claims, damages, cost and expense arising from its use in the manner
requested by the Client.
8.3 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, These Terms.
9.1 Each party may be
given access to Confidential Information from the other party in order to
perform its obligations. A party's Confidential Information shall not be deemed
to include information that:
(a) is or becomes
publicly known other than through any act or omission of the receiving party;
(b) was in the other
party's lawful possession before the disclosure;
(c) is lawfully
disclosed to the receiving party by a third party without restriction on
(d) is independently
developed by the receiving party, which independent development can be shown by
written evidence; or
(e) is required to be
disclosed by law, by any court of competent jurisdiction or by any regulatory
or administrative body.
9.2 Each party and its
Authorised Users, and in particular Trustees and/or Next of Kin, who
are entitled to use the Software shall hold any Confidential
Information processed by the Supplier 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
as set out in These Terms.
9.3 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 These Terms.
9.4 Neither party shall
be responsible for any loss, destruction, alteration or disclosure of
Confidential Information caused by any third party.
9.5 The Client
acknowledges that details of the Services, and the results of any performance
tests of the Services, constitute the Supplier's Confidential Information.
9.6 The Supplier
acknowledges that the Client Data is the Confidential Information of the Client.
9.7 The provisions of
this clause 9 shall survive termination of the Agreement, however arising.
10.1 The Client shall
defend, indemnify and hold harmless the Supplier 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
Client's use of the Services and/or Documentation.
10.2 Save for the
circumstances expressly stated in clause 8.2, the Supplier shall defend the
Client, its officers, directors and employees against any claim that the
Services or Documentation infringes any United Kingdom patent, copyright, trade
mark, database right or right of confidentiality, and shall indemnify the
Client for any claim awarded against the Client in judgment or settlement of
such claims, provided that:
(a) the Supplier is
given prompt notice of any such claim;
(b) the Client provides
reasonable co-operation to the Supplier in the defence and settlement of such
claim, at the Supplier's expense; and
(c) the Supplier is
given sole authority to defend or settle the claim.
10.3 In the defence or
settlement of any claim, the Supplier may procure the right for the Client 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
Services, on 2 Business Days' notice to the Client, and refund any Charges on a
pro rata basis.
10.4 In no event shall
the Supplier, its employees, agents and sub-contractors be liable to the Client
to the extent that the alleged infringement is based on:
(a) a modification of
the Services or Documentation by anyone other than the Supplier; or
(b) the Client's use of
the Services or Documentation in a manner contrary to the instructions given to
the Client by the Supplier; or
(c) the Client's use of
the Services or Documentation after notice of the alleged or actual
infringement from the Supplier or any appropriate authority.
10.5 The foregoing and
clause 11.4(b) states the Client's sole and exclusive rights and remedies, and
the Supplier's (including the Supplier's employees', agents' and
sub-contractors') entire obligations and liability, for infringement of any
intellectual property right including but not limited to any patent, copyright,
trade mark, database right or right of confidentiality.
LIMITATION OF LIABILITY
11.1 This clause 11
sets out the entire liability of the Supplier (including any liability for the
acts or omissions of its employees, agents and sub-contractors) to the Client:
(a) arising under or in
connection with These Terms including the Data Processing Agreement;
(b) in respect of any
use made by the Client of the Services and Documentation or any part of them;
(c) in respect of any
representation, statement or tortious act or omission (including negligence)
arising under or in connection with These Terms including the Data Processing
11.2 Except as
expressly and specifically provided in These Terms:
(a) the Client assumes
sole responsibility for results obtained from the use of the Services and the
Documentation by the Client, 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
Client in connection with the Services, or any actions taken by the Supplier at
the Client's direction;
(b) all warranties,
representations, conditions and all other terms of any kind whatsoever implied
by statute or common law are, to the fullest extent permitted by applicable
law, excluded from These Terms including the Data Processing Agreement; and
(c) the Services and
the Documentation are provided to the Client on an "as is" basis.
11.3 Nothing in These
Terms excludes the liability of the Supplier:
(a) for death or
personal injury caused by the Supplier's negligence; or
(b) for fraud or
11.4 Subject to clause
11.2 and clause 11.3:
(a) 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 These Terms including the Data Processing Agreement; and
(b) the Supplier's
total aggregate liability under These Terms shall not exceed the total Charges
paid and payable by the Client in a 12 month period.
TERM AND TERMINATION
12.1 The Services
shall, unless otherwise terminated as provided in this clause 12, commence on
first use of the Services and shall continue for the Initial Subscription Term
and, thereafter, shall be automatically renewed for successive 12 monthly
periods (each a Renewal Period), unless:
(a) the Client cancels
the subscription to the Services by notifying the Supplier of termination via
the Client’s online account interface 14 days prior to the end of the Initial
Subscription Term or the Renewal Term);
12.2 Without affecting any other right or
remedy available to it, either party may terminate the Services with immediate
effect by giving written notice to the other party if the other party commits a
material breach of any of These Terms and such material breach is not remedied
within 15 Business Days.
12.3 On termination of the Services for
(a) all licences
granted shall immediately terminate;
(b) the Client shall
and shall ensure that each of its Authorised Users shall make no further use of
the Services or any Documentation;
(c) the Supplier shall
respond to any requests for the delivery to the Client of Client Data on a case
by case basis. The Supplier shall use reasonable commercial endeavours to
deliver its response within a reasonable timeframe; and
(d) any rights,
remedies, obligations or liabilities of the parties that have accrued up to the
date of termination, including the right to claim damages in respect of any
breach of the agreement which existed at or before the date of termination
shall not be affected or prejudiced.
The Supplier shall have
no liability to the Client if it is prevented from or delayed in performing its
obligations, 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, pandemics and epidemics,
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 Client is notified of such an event and its expected duration.
No failure or delay by
a party to exercise any right or remedy provided hereunder 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, the rights and remedies provided are in addition to, and not
exclusive of, any rights or remedies provided by law.
16.1 If any provision
(or part of a provision) is found by any court or administrative body of competent
jurisdiction to be invalid, unenforceable or illegal, the other provisions
shall remain in force.
16.2 If any invalid,
unenforceable or illegal provision would be valid, enforceable or legal if some
part of it were deleted, the provision shall apply with whatever modification
is necessary to give effect to the commercial intention of the parties.
17.1 These Terms and
all documents referred to, constitute the whole agreement between the parties
and supersede any previous arrangement, understanding or agreement between them
relating to the subject matter they cover.
17.2 Each of the
parties acknowledges and agrees that in agreeing These Terms it does not rely
on any undertaking, promise, assurance, statement, representation, warranty or
understanding (whether in writing or not) of any person relating to the subject
matter of These Terms, other than as expressly set out herein.
18.1 The Client 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 set out in These Terms.
18.2 The Supplier 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 These Terms.
NO PARTNERSHIP OR AGENCY
Nothing in These Terms
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).
20.1 Any notice
required to be given under These Terms shall be delivered by email or otherwise
any agreed electronic means which shall include messages via the Client’s
online account interface (forming part of the Services). Where previously agreed,
the parties may deliver written notices by hand or send them by pre-paid
first-class post or recorded delivery post to the other party at its registered
office address, or such other address as may have been notified by that party
for such purposes.
20.2 A notice delivered
by electronic means shall be deemed received the day it is being sent. A notice
delivered by hand shall be deemed to have been received when delivered. 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.
These Terms and any
dispute or claim arising out of or in connection with them or their subject
matter (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 These Terms
or their subject matter (including non-contractual disputes or claims).
Terms were last updated: 18th October 2021