CLINICALWILL.APP – SUBSCRIBER AGREEMENT

between

(1) Michael 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

(2) the 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 defined.

BACKGROUND

(A) The 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 retrieval.

(B) The Client wishes to use the Supplier's service in its business operations.

(C) The 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”).

(D) These 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. INTERPRETATION

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 Subscription Term.

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 devices.

2. SUBSCRIPTION

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 credentials confidential;

(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 ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(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 not:

(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. SERVICES

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 appropriate use.

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 Business Hours.

4. CLIENT DATA

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 damage.

5. SUPPLIER'S OBLIGATIONS

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 such facilities.

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 hereunder.

5.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations.

6. CLIENT'S OBLIGATIONS

The Client shall:

(a) provide the Supplier with:

(i) all necessary co-operation; and

(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 internet.

7. CHARGES AND PAYMENT

7.1 The Client shall pay the Subscription Fees to the Supplier in accordance with this clause 7 and the Documentation.

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 pounds sterling;
(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.

7.6 Notwithstanding 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. PROPRIETARY RIGHTS

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. CONFIDENTIALITY

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 disclosure;

(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. INDEMNITY

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.

11. 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; and

(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 Agreement.

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 fraudulent misrepresentation.

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.

12. 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 any reason:

(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.

13. FORCE MAJEURE

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.

14. WAIVER

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.

15. 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. SEVERANCE

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. ENTIRE AGREEMENT

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. ASSIGNMENT

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.

19. 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. NOTICES

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.

21. GOVERNING LAW

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.

22. JURISDICTION

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).

These Terms were last updated: 18th October 2021