Terms & Conditions [for providers]

Our Terms and Conditions for HealthCare Providers or Purchasers

Last revision [Nov 25, 2018 ]

These terms and conditions shall form part of all contracts by MYPATIENTSPACE LIMITED a company incorporated and registered in Ireland with company number 616748 whose registered office is at 39 Northumberland Road, Ballsbridge, Dublin 2 (hereinafter called MPS) with any person, customer or organisation (hereinafter called the Purchaser) as set out in the Order and each a party and together the Parties.

1. INTERPRETATION  

1.1 The definitions and rules of interpretation ni this clause apply in this agreement

Agreement: these terms and conditions together with the Order and any Documentation.

Authorised Users:  those employees, agents, Purchaser’s Patients and patient authorised users who are authorised by the Purchaser to use the Services and the Documentation, as further described in clause 2.2.

Business Day:  a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business.

Change of Control:  the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.

Confidential Information: all documentation, technical information, software, business information, feedback, pricing of the Services, trade secrets or know how or other materials of a confidential nature or that are disclosed in confidence by either party to the other during the term of this contract.

Data Protection Legislation: the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in Ireland.

Data Processing Agreement: means the data processing agreement set out in the Order.

Documentation:  the documents made available to the Purchaser by MPS online via www.mypatientspace.com or such other web address notified by MPS to the Purchaser from time to time or directly which sets out a description of the Services and the user instructions for the Services.

Effective Date:  the date of the Order.

Fees: the Subscription Fees and any other fees for services including Professional Fees set out in the Order.

Initial Subscription Term:  the initial term of this agreement set out in the Order..

Normal Business Hours:  9.00 am to 6.00 pm local Irish time, each Business Day.

Personal Data: means any and all personal data including sensitive personal data within the meaning of the Data Protection Legislation in respect of which Purchaser is a data controller (which includes Personal Data of Purchaser’s Patients) and which will be processed in the performance of the Services under this Agreement whether that data or information is in oral, visual or written form or is recorded in any other medium.

Professional Services: means the professional services ordered by Purchaser and as more fully described in the Order.

Purchaser Patients: means all patients and potential patients of Purchaser and those members which the Purchaser’s Patients authorises to access the Software, the details of which MPS stores on its system as part of the provision of Services.

Purchaser Data: the information and data (including Personal Data) inputted by the Purchaser, Authorised Users, Purchaser’s Patients or MPS on the Purchaser’s behalf for the purpose of using the Services or facilitating the Purchaser’s use of the Services.

Renewal Period:  the period described in the Order.

Services:  the Software, services and Documentation as more particularly described in the Order.

Software:  the online software applications provided by MPS as part of the Services.

Subscription Fees:  the subscription fees payable by the Purchaser to MPS for the User Subscriptions, as set out in the Order.

Subscription Term:  means the term set out in the Order (being the Initial Subscription Term together with any subsequent Renewal Periods).

Third Party Providers: means third party entities engaged by MPS to provide services which services are delivered as part of the Services or are delivered alongside the Services. The current Third Party Providers are listed in the Order.

User Subscriptions:  the user subscriptions purchased by the Purchaser which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.

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, schedule and paragraph headings shall not affect the interpretation of this Agreement. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. Reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it. A reference to writing or written includes faxes and e-mail.

2. USER SUBSCRIPTIONS  

2.1 Subject to the Purchaser purchasing the User Subscriptions, the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement, MPS hereby grants to the Purchaser a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term.

2.2 In relation to the Authorised Users, the Purchaser undertakes that:

a. the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time; 

b. 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 Documentation;

c. each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;

d. it shall maintain a written, up to date list of current Authorised Users and provide such list to MPS within five (5) Business Days of MPS’s written request at any time or times;

e. if through any investigation it is revealed that any password has been provided to any individual who is not an Authorised User, then without prejudice to MPS’s other rights, the Purchaser shall promptly disable such passwords and MPS shall not issue any new passwords to any such individual; and

f. if any investigation by MPS reveals that the Purchaser has underpaid Subscription Fees to MPS, then without prejudice to MPS’s other rights, the Purchaser shall pay to MPS an amount equal to such underpayment as calculated in accordance with the Subscription Fees within fifteen (15) Business Days of the date of the relevant audit.

2.3 Subject to Clause 2.4 and 2.5, the Purchaser may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order and MPS shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.

3. PURCHASER’S OBLIGATIONS

3.1 The Purchaser 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, depicts sexually explicit images, promotes unlawful violence;

c. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability or is otherwise illegal or causes damage or injury to any person or property;

d. contains any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “unsolicited commercial communications’, “unsolicited commercial communications’ including by email or SMS or other form of communication prohibited by the anti-spam laws of the countries Purchaser Patients live in or the applicable direct marketing laws any other unauthorized forms of solicitation; or

e. encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable law or regulation.

3.2 The Purchaser shall not except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:

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 and/or Documentation (as applicable) 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-perceivable form all or any part of the Software; or

c. 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

d. subject to clause 15.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or

e. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 3.

3.3 The Purchaser 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 MPS.

3.4 Without prejudice to MPS’s other rights in law or equity, MPS reserves the right, without liability to Purchaser, to suspend or disable Purchaser’s or any Authorised Users access to the Services or Services or suspend performance of the Professional Service where Purchaser breaches the provisions of this clause or any terms of this Agreement and Purchaser shall not thereby be entitled to claim any refund or compensation.

3.5 Purchaser shall be responsible for the acts and omissions of its Purchaser’s Affiliates, its Authorised Users, Purchasers’ Contractors, subcontractors and agents who access the Services, as though they were the acts and omissions of the Purchaser. Purchaser agrees to defend, indemnify and hold harmless MPS, its Affiliates, Third Party Providers and subcontractors against any claim, losses, damages or liability arising from the acts or omissions of its Affiliates, the Authorised Users and their respective subcontractors and agents.

3.6 Purchaser shall (i) provide MPS with all necessary timely co-operation and access in relation to this Agreement including security access information and configuration services. In the event of any delays attributable to Purchaser, MPS may adjust any agreed timetable or delivery schedule as reasonably necessary; (ii) comply with all applicable laws and regulations with respect to its activities under this Agreement including Data Protection Laws; (iv) obtain and shall maintain all necessary licences, consents, and permissions necessary for MPS, its Third Party Providers and subcontractors to perform their respective obligations under this Agreement; (v) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement; (vi) ensure that its network and systems comply with specifications provided by MPS and will be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to MPS’s data centre’s and systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Purchaser’s network connections or telecommunications links or caused by traversing the internet.

4. SERVICES  

4.1 MPS undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

4.2 The undertaking at Clause 4.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to MPS’s instructions, or modification or alteration of the Services by any party other than MPS or MPS’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, MPS will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Purchaser with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Purchaser’s sole and exclusive remedy for any breach of the undertaking set out in Clause 4.1.

4.3 With respect to Professional Services, MPS warrants that the Professional Services will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards. Purchaser must notify MPS promptly of any claimed breach of the foregoing warranty. Purchaser’s exclusive remedy and MPS’s entire liability for breach of the foregoing warranty will be, at MPS’s option, re-performance of the deficient Professional Services.  Any deficiencies in the Professional Services must be reported to MPS in writing within thirty (30) days of performance of the Professional Services in order to receive the foregoing warranty remedies.

4.4 With regard to Professional Services, within five (5) days of MPS’s delivery to Purchaser of any deliverable (where specifically the parties have agreed that such deliverable shall be subject to review and testing), Purchaser shall review the deliverable to confirm that it functions in material conformance with the applicable portion of any specification set forth by MPS, in accordance with the agreed acceptance criteria. If the deliverable fails in any material respect to so conform, Purchaser is required to give MPS a detailed written description of any such non-conformance (an “Error”), within the five (5)-day review period.  MPS shall use commercially reasonable endeavours to correct any such Error within a reasonable time and upon completion, shall submit the corrected deliverable to the Purchaser for review and testing as set forth above. Upon accepting any deliverable submitted by MPS, Purchaser shall provide a written acceptance of the deliverable. If Purchaser does not provide any written comments within the five (5)-day review period described above, or if the deliverable is found to conform to the specification, the deliverable shall be deemed accepted at the end of the applicable review period.

4.5 Notwithstanding the foregoing, MPS does not warrant that the Purchaser’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Purchaser through the Services will meet the Purchaser’s requirements. The Service may be subject to limitations, delays and other problems inherent in the use of the internet and electronic communications. MPS is not responsible for any delays, delivery failures, or other damage resulting from the transfer of data over communications networks and facilities, including the internet.

4.6. MPS shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am Irish time; and unscheduled maintenance performed outside Normal Business Hours, provided that MPS has used reasonable endeavours to give the Purchaser at least 6 hours’ notice in advance.

4.7. MPS reserves the right to introduce new or enhanced features and functionalities to the Services.

5. PURCHASER DATA  

5.1. The Purchaser shall own all right, title and interest in and to all of the Purchaser Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Purchaser Data. Purchaser hereby grants and represents and warrants that it has the right to grant MPS an irrevocable, perpetual, non-exclusive royalty free and fully paid worldwide license to process Purchaser Data, which includes processing by Affiliates, Third Party Providers and subcontractors to the extent contemplated by this Agreement.

5.2. In the event of any loss or damage to Purchaser Data, the Purchaser’s sole and exclusive remedy against MPS shall be for MPS to use reasonable commercial endeavours to restore the lost or damaged Purchaser Data from the latest back-up of such Purchaser Data maintained by MPS. MPS shall not be responsible for any loss, destruction, alteration or disclosure of Purchaser Data caused by reasons outside the control of MPS or a Third Party Provider.

5.3. MPS shall, in providing the Services, comply with its Privacy Policy relating to the privacy and security  of  the  Purchaser  Data  available  at  www.mypatientspace.com  or  such  other  website address  as  may  be  notified  to  the  Purchaser  from  time  to  time,  as such  document  may  be amended from time to time by MPS in its sole discretion.//The Purchaser will use the privacy policy for MPS for its own Authorised Users to accept in using the Software and the Purchaser shall comply with the Privacy Policy relating to the privacy and security of the Purchaser Data.  The Purchaser can extend this privacy policy if required based on agreement with MPS.

5.4. 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 under the Data Protection Legislation.

5.5. In providing its Services including Professional Services under this Agreement, MPS may be required to process Personal Data on Purchaser’s behalf, including without limitation Personal Data relating to Purchaser Patients. The parties record their intention that the Purchaser and its Affiliates (as applicable) shall be the data controller and MPS shall be a data processor and the provisions of the Data Processing Agreement shall apply.

5.6. The Service is provided on a software-as-a-service, hosted basis.  As such, Purchaser authorizes MPS to permit MPS’s Third Party Providers, including its host provider, to act as subprocessors and have access certain same data, including Purchaser Data. These Third Party Providers are only permitted to process this data for the purposes of providing their specifically contracted services to MPS.

5.7. The Purchaser acknowledges that MPS may collect and use anonymised data from the Software relating to outcomes, usage data and other information solely for the purposes of improving the user experience and providing value added services. This data shall be irreversibly anonymised and shall therefore no longer be considered personal data under the Data Protection Legislation. The Purchaser shall ensure that its privacy policy expressly includes this right.

5.8. The Purchaser acknowledges that MPS must collect data for reporting of outcomes measures, e.g. no of outcome measures, per hospital, per consultant.  This is for sublicensing outcomes scores for Oxford scores.  The Purchaser is not allowed to modify the Oxford outcomes measures in the product.  All is handled under strict data processing control for GDPR.   The Purchaser also acknowledges that if agreed by the Purchaser and the Patient – outcome scores may be shared with agreed upon Third-Parties such as Insurance companies and National Registries.  This is done strictly based on consent from the Purchaser and the Patient.

5.9. The Purchaser acknowledges that in the event the Services include the provision via the Software of MPS standard content including but not limited to care plans, videos and educational content, the Purchaser must satisfy itself as to the accuracy and suitability of this content for its patients and accept this content as is without any warranty from MPS as to its accuracy, suitability or otherwise. MPS shall not be liable to the Purchaser or its Authorised Users for such content.

6. FEES AND PAYMENT  

6.1. The Purchaser shall pay the Fees to MPS for the Services in accordance with this Clause 6 and the Order.

6.2. MPS shall invoice the Purchaser on the Effective Date for the Fees payable in respect of the Initial Subscription Term and for the Professional Services and subject to Clause 12 Termination, 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 Purchaser shall pay each invoice within 30 days after the date of such invoice.

6.3. If MPS has not received payment within fifteen (15) days after the due date, and without prejudice to any other rights and remedies of MPS,  MPS may, without liability to the Purchaser, disable the Purchaser’s password, account and access to all or part of the Services and MPS shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid and  interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8 percentage points above the European Central Bank’s reference rate or if such rate shall exceed any applicable permissible legal interest rate, then at the highest legally permissible rate, commencing on the due date and continuing until fully paid, whether before or after judgment.

6.4. All amounts stated or referred to in this Agreement: (i) shall be payable in euro or such other currency as set out in the Order; (ii) are non-cancellable and non-refundable unless stated elsewhere in the Agreement; and (iii) are exclusive of all sales, use, value-added, withholding and other taxes and duties which shall be added to MPS’s invoice(s) at the appropriate rate. Purchaser will pay all taxes and duties (including withholding tax) assessed in connection with this Agreement and its performance by any authority but excluding any tax measured by the net or gross income of MPS.

7. PROPRIETARY RIGHTS

7.1. The Purchaser acknowledges and agrees that MPS and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Purchaser any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation. To the extent that any modifications or improvements to the Services, Software and/or the Documentation are carried out under or in connection with this Agreement, whether by MPS alone or jointly with the Purchaser, and whether based on ideas or suggestions from Purchaser, all intellectual property rights to such underlying ideas and in any resulting improvement or modifications shall be assigned to and shall vest with and be solely owned by MPS.

7.2. MPS confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

7.3. MPS hereby grants Purchaser a worldwide, perpetual, non-exclusive, non-transferable, royalty-free licence to use for its internal business purposes reports and other materials developed by MPS as a result of or as an output of the Professional Services (“Contract Results”). All rights and title in and to the Contract Results shall remain vested in or shall vest upon creation in MPS.

8. CONFIDENTIALITY

8.1. Each Party (the “Receiving Party”) acknowledges that, in the course of this Agreement, it may obtain Confidential Information from the other Party, (the “Disclosing Party”), which may include Confidential Information belonging to Affiliates or Third Party Providers. The Receiving Party shall keep in confidence all Confidential Information disclosed by the Disclosing Party and shall not use Confidential Information except in furtherance of this Agreement. The Receiving Party shall not disclose any Confidential Information to any person without the Disclosing Party’s prior written consent except that the Receiving Party may disclose the Confidential Information to its officers, employees, independent contractors and agents (and furthermore, in the case of MPS to its Affiliates, Third Party Providers and subcontractors) (“Representatives”) on a “need-to-know” basis, provided that such Representatives execute a written agreement with materially the same terms and conditions as this clause 11 and the Receiving Party remains ultimately liable for any breaches thereof. In the case of MPS, it may make disclosures to investors or potential investors subject to such investors being aware of and agreeing in writing comply with the terms equivalent to the terms of this clause 8.

8.2. The obligations of confidentiality shall continue during the term of this Agreement and thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in clause 8.3.

8.3. This clause 8 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain as a result of no act or omission of the Receiving Party or its employees or agents; (b) is received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party; (c) was independently developed by the Receiving Party without reliance on the Confidential Information; (d) was in the other party’s lawful possession before the disclosure or (e) is required to be disclosed by operation of law or by order of a court or administrative body of competent jurisdiction (provided that, where permitted under law, prior to such disclosure, the Receiving Party shall first give notice to the Disclosing Party such that the Disclosing Party has the opportunity to contest such order or requirement of disclosure or seek appropriate protective order).

8.4. No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

9. DISCLAIMERS
   • Each party warrants that it has the full corporate power (i) to enter into this Agreement, (ii) to carry out its obligations hereunder, and (iii) to grant the rights herein granted to the other party.  
   • Purchaser warrants that the Purchaser Data, material, content or links provided to MPS by or on behalf of Purchaser: (i) are owned by Purchaser or are provided with the express consent from the third party holding any ownership rights (including copyright) over such material, or, alternatively, are in the public domain, and are not owned by any third party or otherwise covered by copyright laws; (ii) do not breach the rights of any person or entity, including rights of publicity, privacy, or under applicable Data Protection Laws or direct marketing laws and are not defamatory; and (iii) do not result in consumer fraud (including being false or misleading), product liability, tort, breach of contract, breach of Intellectual Property, injury, damage or harm of any kind to any person or entity.
   • Other than with respect to the express warranties set forth herein, all warranties express or implied, representations, conditions and all other terms of any kind whatsoever implied by statute or common law, including those of non-infringement, merchantability and fitness for a particular purpose, all are, to the fullest extent permitted by applicable law, are hereby disclaimed and excluded by MPS from this Agreement. Purchaser is solely responsible for determining the suitability of the Services for its use in light of any applicable legislation or regulations including without limitation Data Protection Laws.
   • Where Third Party Providers are used, Purchaser acknowledges that MPS makes no representation or warranty in respect of Third Party Providers software and/or services and, that these are provided subject to, and with the benefit of, the terms of such Third Party Providers. MPS shall contract with the Third Party Providers for such services and Purchaser agrees that MPS will not be liable to Purchaser for any loss, damage, claim or liability howsoever arising from or related to Third Party Providers software and/or services beyond that which can be claimed by MPS under the terms of the contract with such Third Party Providers.
   • Save for its obligations under Data Protection Legislation and data back up as set out in the Order,, MPS, licensors, agents or subcontractors shall not be responsible or liable for (i) the use, deletion, correction, destruction, damage, loss or failure to store any data, or (ii) any unauthorised access to, or alteration of, transmissions or data, or any material, information or data sent or received.
   • From time to time, MPS may assist Purchaser, at Purchaser’s request, to integrate the Service with the services of third parties with whom Purchaser has independently contracted (“Purchaser’s Contractors”).  Such integrations will be completed and deployed as part of the Professional Services and will be subject to acceptance by Purchaser prior to deployment, thereinafter the “Accepted Integration”. Save to the extent that any liability, loss, damage or claim arises in whole or in part as a consequence of MPS’s breach, negligence or wilful default, MPS disclaims all responsibility for the actions of Purchaser’s Contractors for loss, damages or claims arising from Accepted Integrations. Subject to the foregoing, MPS make no representations or warranties as to the suitability of the Purchaser’s Contractors or of the successful integration of MPS service with the services of Purchaser’s Contractors.

10. INDEMNITY  

• MPS shall defend, indemnify and hold harmless Purchaser from all claims, defense costs (including reasonable attorneys’ fees and expenses), agreed settlements and finally awarded judgments payable to a third party arising out of the alleged infringement or misappropriation of any trademark, copyright or trade secret with respect to Purchaser’s authorized use of the Services.  
• Notwithstanding the above, MPS shall have no liability to Purchaser to the extent that any claim is based upon (i) modifications to the Services made by anyone other than MPS; (ii) a claim for which Purchaser must indemnify MPS below; (iii) combination of the Services with software not provided by MPS; or (v) Purchaser’s failure to use modifications to the Services provided by MPS to avoid infringement or misappropriation.
• If the exercise by Purchaser of any of the rights granted to it under this Agreement is prevented due to the type of infringement or misappropriation specified above, MPS, at MPS’s option and expense, may: (i) procure for Purchaser a license to continue to exercise all of the rights granted under this Agreement with respect to the Services or (ii) modify the allegedly infringing software to avoid the infringement or misappropriation.  If options (i) and (ii) above cannot be accomplished despite the reasonable efforts of MPS, then MPS may both: (a) terminate Purchaser’s rights and MPS’s obligations under this Agreement with respect to such Services and (b) refund to Purchaser the unearned portion of any prepaid fees. The rights granted to Purchaser under this clause 9.3 shall be Purchaser’s sole and exclusive remedy for any alleged infringement of any intellectual property rights of any third party.  
• Purchaser shall defend, indemnify and hold harmless MPS, its Affiliates, Third Party Providers and subcontractors (and their respective employees, directors, officers, shareholders, attorney and representatives) in respect of any and all damage, awards of damages, losses, costs, expenses, fees (including the reasonable fees of professional advisors), fines and penalties to the extent arising out of claims by third parties, including Purchaser Patients, arising out of or in connection with the (i) unauthorised use of the Services or infringement of MPS’s or a Third Party Provider’s Intellectual Property (ii)  breach of this Agreement including any warranties or representations or obligations and (iii) any violations of third party rights due to Purchaser’s use of the Services and Third Party Services.
•  If any action shall be brought against one of the parties hereto in respect to which indemnity may be sought against the other party (the “Indemnifying Party”) pursuant to clause 10.1 or clause 10.4, the Indemnifying Party’s obligation to provide such indemnification will be conditioned on prompt notice of such claim (including the nature of the claim and the amount of damages and nature of other relief sought) being provided to the Indemnifying Party by the party against which such action is brought (the “Indemnified Party”).  The Indemnified Party shall cooperate with the Indemnifying Party in all reasonable respects in connection with the defense of any such action at the expense of the Indemnifying Party.  The Indemnifying Party will, upon written notice to the Indemnified Party, conduct all proceedings or negotiations in connection with the action, assume the defense thereof, including settlement negotiations in connection with the action, and will be responsible for the costs of such defense, negotiations and proceedings.  The Indemnifying Party will have sole control of the defense and settlement of any claims for which it provides indemnification hereunder, provided that the Indemnifying Party will not enter into any settlement of such claim without the prior approval of the Indemnified Party, which approval will not be unreasonably withheld.  The Indemnified Party shall have the right to retain separate counsel and participate in the defense of the action or claim at its own expense.

11. LIMITATION OF LIABILITY  

• Nothing in these terms and conditions will limit or exclude any liability in a way that is not permitted under any applicable law.  
• To the maximum extent permitted by applicable law, MPS will not have any liability to Purchaser or any Authorised Users for any lost profits, loss of data, loss of use, data inaccuracy, reputational damage, costs of procurement or substitute goods or services, or for any indirect, special, incidental, punitive, or consequential damages however caused and under any theory of liability whether or not MPS has been advised of the possibility of such.
• Subject to clause 11.1, notwithstanding anything in this Agreement to the contrary, except for liability for death or personal injury resulting from MPS’s negligence or the negligence of its employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation, to the maximum extent permitted by applicable law, MPS’s and its Affiliates total aggregate liability arising out of or related to this Agreement or the Services or Professional Services or any Third Party Providers’ services under any theory of law (including liability for negligence or breach of statutory duty or an indemnity claim) shall not exceed the total amount of the Fees paid by the Purchaser under this Agreement.

12. TERM AND TERMINATION  

12.1. This agreement shall, unless otherwise terminated as provided in this Clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless: (a)  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 (b)  otherwise terminated in accordance with the provisions of this agreement; and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

12.2. Without prejudice to any other rights or remedies to which the parties may be entitled, this Agreement may be terminated by either party as follows:

• on thirty (30) days written notice to the other if the other has committed an irremediable material breach of this Agreement, specifying the nature of such breach. In the case of any invoiced amount being overdue, MPS may terminate where Purchaser fails to pay having been given 20 days written notice to pay. Such 20 days is in addition to the 15 days referred to in clause 6.3;
• with immediate effect by notice in writing if the other has committed a remediable material breach or wilful and repeated non-material breaches and fails to remedy the same within thirty (30) days of receipt from the other of a notice clearly identifying the nature of the breach(es) and requiring such breach(es) to be rectified;
• with immediate effect by notice in writing if any Force Majeure Event prevents the performance of the whole or a substantial part of the other party’s obligations for a continuous period of thirty (30) days after the date on which it should have been performed;
• with immediate effect by notice in writing if the other should become insolvent or otherwise unable to pay its debts as and when they fall due, should have appointed to it a liquidator, receiver or administrator, should enter into an arrangement with its creditors or have presented against it a petition for its winding up other than for the purposes of effecting a solvent reorganization which it does not promptly apply to have set aside, or be ordered to be wound up or liquidated or for any other reason cease or threaten to cease trading or business;
• where MPS’s contract with a Third Party Provider is no longer in force and MPS is not able to secure a replacement service acceptable to the Purchaser.

12.3. On termination of this Agreement for any reason:

• all licences granted under this Agreement shall immediately terminate and all right to access the Services shall immediately terminate;

• each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

• Upon receipt of a written request, MPS shall use reasonable commercial endeavours to deliver the back-up to the Purchaser within 30 days of its receipt of such a written request, provided that the Purchaser has, at that time, paid all fees and charges outstanding at and resulting from termination. IF MPS do not receive any such request within 30 days of the date of termination, it may destroy or otherwise dispose of any of the Purchaser Data in its possession; and

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.

13. FORCE MAJEURE  

MPS shall have no liability to the Purchaser under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of MPS 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 MPSs or sub-contractors, provided that the Purchaser is notified of such an event and its expected duration. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three (3) months, the party not affected may terminate this Agreement by giving one calendar month written notice to the other party.

14. DISPUTE RESOLUTION

• Subject to clause 14.4 below, in the event of any dispute, difference or question arising out of, or in connection with, this Agreement or its formation (a dispute): (i) the party claiming that a dispute has arisen must give written notice to the other party setting out full particulars of the dispute; and representatives of MPS and the Purchaser shall (a) each use best efforts to resolve the dispute through good faith negotiations and informal dispute resolution techniques; and (b) continue to perform their obligations under this Agreement as far as possible as if the dispute had not arisen, pending final settlement of the dispute.
• If a dispute cannot be resolved pursuant to the provisions of clause 14.1 within fourteen (14) days, that dispute shall be referred to a senior representative of MPS and of the Purchaser for resolution.
• If a dispute cannot be resolved by the Parties’ respective senior representative pursuant to clause 14.2 within fourteen (14) days, then either party may resort to such other methods of dispute resolution as may be available to them (including, for the avoidance of doubt, litigation).
• Clauses 14.1 – 14.3 (inclusive) shall be without prejudice to the rights of termination stated in clause 11 and in addition shall not prevent MPS or the Purchaser from applying for injunctive relief in the case of: (i) breach or threatened breach of confidentiality; (ii) infringement or threatened infringement of its Intellectual Property rights; or (iii) infringement or threatened infringement of the Intellectual Property rights of a third party, where such infringement could expose MPS or the Purchaser to liability.

15. MISCELLANEOUS

• A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.  
• The parties acknowledge and agree that in the event of any infringement of either party’s intellectual property rights, or rights in confidential information the non-breaching party will suffer irreparable damage for which damages would not necessarily be an adequate remedy at law.  Accordingly, the non-breaching party will be entitled to seek injunctive and other equitable remedies to prevent or restrain, temporarily or permanently, such breach, in addition to any other remedy that such non-breaching may have at law or in equity.
• If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
• This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
• Neither party shall without the prior written consent of the other party assign, transfer, charge, or deal in any other manner with all or any of its rights or obligations under this Agreement, save that MPS may without the prior written consent of Purchaser, assign, transfer, charge or deal in any other manner or encumber any of the moneys due or becoming due under this Agreement. Furthermore, either party may assign all of its rights and obligations under this Agreement to (i) an Affiliate, (ii) a purchaser of all or substantially all assets related to this Agreement, or (iii) a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which MPS is participating. Any attempt to assign this Agreement in violation of this provision shall be void and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. MPS may appoint subcontractors without prior approval of the Purchaser.
• Purchaser agrees (i) to allow a press release relating to this Agreement to be published within sixty (60) Business Days of the Effective Date. The parties agree that the text of such release must be approved in writing by both parties prior to any disclosure; (ii) to act as a reference client (iii) to grant permission and a license to allow MPS to use Purchaser name and logo in its website and marketing material collateral; and (iv) to participate with MPS at two conferences/events, such events to be agreed by the parties. Participation shall be by senior representatives from Purchaser.
• Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize 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).
• Any notice required to be given under this Agreement shall be in writing and sent to the other party by registered and recorded delivery at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes or (ii) by email to such email addresses agreed between the parties for receipt of contractual notices. A notice delivered (i) by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first business day following delivery). A correctly addressed notice shall be deemed to have been received at the time at which it would have been delivered in the normal course of post and (ii) by email shall be deemed to have been received at 9.00am on the next working day (being a day other than a Saturday, Sunday or bank holiday when banks in Ireland are open for business) after transmission.
• This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement.
• This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with the laws of the Republic of Ireland. The parties irrevocably agree that the courts of the Republic of Ireland have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non- contractual disputes or claims).