Software and Licensing Terms and Conditions
Updated: 02 Jan 2023
Version: 2
Definitions
Except to the extent expressly provided otherwise, in this Agreement the definitions are as set out in Schedule 1.Licence
2.1
In consideration of the Charges paid by the Customer, Aire Logic hereby grants to the Customer a worldwide, non-exclusive licence to use the Forms detailed in the Quotation for the internal business purposes of the Customer in accordance with the terms of this Agreement and any Documentation provided during the Term.
2.2
The licences granted by Aire Logic to the Customer under Clause 2.1 are subject to the following limitations:
the Forms Suite may only be used by the officers, employees, workers, agents and subcontractors of the Customer or by patients/citizens in the ordinary course of the Customer’s business;
the Forms Suite must not be used beyond the limits set out in the Quotation.
2.3
Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the Customer must not:
sub-license its right to access and use the Forms Suite;
permit any unauthorised person to access or use the Forms Suite;
use the Forms Suite to provide services to paying third parties;
not republish or redistribute any content or material from the Forms Suite; or
make any alteration to the Platform. For the avoidance of doubt, configuration of new forms, as expected in the normal usage of the Platform, is not considered an alteration to the Platform.
2.4
The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Forms Suite using an administrator Account.
2.5
For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
a Force Majeure Event;
permit any unauthorised person to access or use the Forms Suite;
a fault or failure of the Customer's computer systems or networks;
any breach by the Customer of this Agreement; or
scheduled maintenance carried out in accordance with this Agreement.
2.6
The Customer must not use the Forms Suite in any way that causes, or may cause, damage to the Forms Suite or Platform or impairment of the availability or accessibility of the Forms Suite.
2.7
The Customer must not use the Forms Suite
in any way that is unlawful, illegal, fraudulent or harmful; or
in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.8
For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
2.9
Aire Logic may suspend the provision of the Forms Suite if any amount due to be paid by the Customer to Aire Logic under this Agreement is overdue, and Aire Logic has given to the Customer written notice, following the amount becoming overdue, of its intention to suspend the Forms Suite on this basis.
Hosting
3.1
Aire Logic shall host the Forms Suite using its Platform.
3.2
Aire Logic shall use all reasonable endeavours to maintain the availability of the Forms Suite to the Customer, but does not guarantee 100% availability.
Maintenance Services
4.1
Aire Logic shall provide the Maintenance Services to the Customer during the Term.
4.2
Aire Logic shall where practicable give to the Customer prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Forms Suite or are likely to have a material negative impact upon the Forms Suite, without prejudice to Aire Logic's other notice obligations under this main body of this Agreement.
4.3
Aire Logic shall give to the Customer prior notice of the application of an Upgrade to the Platform.
4.4
Aire Logic shall give to the Customer notice of the application of any security or non-security Update to the Platform.
4.5
Aire Logic shall provide the Maintenance Services with reasonable skill and care.
4.6
Aire Logic may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to Aire Logic under this Agreement is overdue, and Aire Logic has given to the Customer written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
Support Services
5.1
Aire Logic shall provide the Support Services to the Customer during the Term.
5.2
Aire Logic shall make available to the Customer a helpdesk in accordance with the provisions of the Quotation.
5.3
Aire Logic shall provide the Support Services with reasonable skill and care.
5.4
Aire Logic shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
5.5
Aire Logic may suspend the provision of the Support Services if any amount due to be paid by the Customer to Aire Logic under this Agreement is overdue, and Aire Logic has given to the Customer written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
Customer Responsibilities
6.1
The Customer is responsible for determining whether a Form is fit for its purposes.
6.2
The Customer is responsible for the business processes, such as patient or customer follow up, relating to the use of the Forms by patients or customers and by the Customer.
6.3
The Customer must ensure that it has appropriate information governance systems in place in relation to its use of the Forms.
Customer Data
7.1
The Customer hereby grants to Aire Logic a non-exclusive licence to the Customer Data to the extent reasonably required for the performance of Aire Logic's obligations and the exercise of Aire Logic's rights under this Agreement.
7.2
The Customer warrants to Aire Logic that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
7.3
Aire Logic shall not store Customer Data other than Form configuration. Form configuration will be backed up multiple times daily which will enable Aire Logic to restore the Forms Suite to the state it was in at the time the back-up was taken.
7.4
Aire Logic shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by Aire Logic in accordance with Clause 7.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
Intellectual Property Rights
8.1
Aire Logic retains the right to all Intellectual Property in the Forms Suite and nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from Aire Logic to the Customer, or from the Customer to Aire Logic.
8.2
Intellectual Property arising from any Customer Developed Form belongs to Aire Logic and will form part of the Forms Suite.
Charges
9.1
The Customer shall pay the Charges to Aire Logic in accordance with this Agreement.
9.2
All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to Aire Logic.
9.3
Aire Logic may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 5% over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office for National Statistics.
9.4
If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from tihargesme to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each named calendar month); or
claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
Payments
10.1
Aire Logic shall issue invoices for the Charges to the Customer from time to time during the Term.
10.2
The Customer must pay the Charges to Aire Logic within the period of 30 days following the issue of an invoice in accordance with this Clause 10.
10.3
The Customer must pay the Charges by bank transfer (using such payment details as are notified by Aire Logic to the Customer from time to time).
10.4
If the Customer does not pay any amount properly due to Aire Logic under this Agreement, Aire Logic may:
charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each named calendar month); or
claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
Payments
11.1
Aire Logic must:
keep the Customer Confidential Information strictly confidential;
not disclose the Customer Confidential Information to any person without the Customer's prior written consent;
use the same degree of care to protect the confidentiality of the Customer Confidential Information as Aire Logic uses to protect Aire Logic's own confidential information of a similar nature, being at least a reasonable degree of care.
11.2
Notwithstanding Clause 11.1, Aire Logic may disclose the Customer Confidential Information to Aire Logic's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
11.3
This Clause 11 imposes no obligations upon Aire Logic with respect to Customer Confidential Information that:
is known to Aire Logic before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
is or becomes publicly known through no act or default of Aire Logic; or
is obtained by Aire Logic from a third party in circumstances where Aire Logic has no reason to believe that there has been a breach of an obligation of confidentiality.
11.4
The restrictions in this Clause 11 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of Aire Logic on any recognised stock exchange.
11.5
The provisions of this Clause 11 shall continue in force indefinitely following the termination of this Agreement.
Data Protection
12.1
The Customer warrants to Aire Logic that it has the legal right to disclose all Personal Data that it does in fact disclose to Aire Logic under or in connection with this Agreement, and that the processing of that Personal Data by Aire Logic for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws (including the Data Protection Act 2018).
12.2
To the extent that Aire Logic processes Personal Data disclosed by the Customer, Aire Logic warrants that:
it will act only on instructions from the Customer in relation to the processing of that Personal Data;
it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data.
Warranties
13.1
Aire Logic warrants to the Customer that:
Aire Logic has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
Aire Logic will comply with all applicable legal and regulatory requirements applying to the exercise of Aire Logic's rights and the fulfilment of Aire Logic's obligations under this Agreement;
13.2
Aire Logic warrants to the Customer that the Forms Suite, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
13.3
If Aire Logic reasonably determines, or any third party alleges, that the use of the Forms Suite by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, Aire Logic may at its own cost and expense:
modify the Forms Suite in such a way that they no longer infringe the relevant Intellectual Property Rights; or
procure for the Customer the right to use the Forms Suite in accordance with this Agreement.
13.4
The Customer warrants to Aire Logic that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
13.5
All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
Acknowledgements and warranty limitations
14.1
The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, Aire Logic gives no warranty or representation that the Forms Suite will be wholly free from defects, errors, omissions and bugs.
14.2
Intellectual Property arising from any Customer Developed Form belongs to Aire Logic and will form part of the Forms Suite.
14.3
The Customer acknowledges that Aire Logic will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Forms Suite and, except to the extent expressly provided otherwise in this Agreement, Aire Logic does not warrant or represent that the Forms Suite or the use of the Forms Suite by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
Indemnity
15.1
The Customer will indemnify and keep indemnified Aire Logic against any and all loss, damage or liability suffered and legal fees and costs incurred as a result from arising out of, or in connection with, the Customer's use of the Forms Suite.
15.2
Aire Logic will indemnify and hold the Customer harmless from and against losses that the Customer may suffer arising out of, or as a result of, Aire Logic's misuse or mismanagement of Customer Data.
Limitations and exclusions of liability
16.1
Except as expressly provided for in this Agreement, the Customer assumes sole responsibility for results obtained from the use of the Forms Suite and the Documentation by the Customer, and for conclusions drawn from such use. Aire Logic shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Aire Logic by the Customer in connection with the Forms Suite, or any actions taken by Aire Logic at the Customer's direction.
16.2
Nothing in this Agreement will:
limit or exclude any liability for death or personal injury resulting from negligence;
limit or exclude any liability for fraud or fraudulent misrepresentation;
limit any liabilities in any way that is not permitted under applicable law; or
exclude any liabilities that may not be excluded under applicable law.
16.3
The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:
are subject to Clause 15.1; and
govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
16.4
Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
16.5
The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the greater of:
£5,000,000; and
the total amount paid and payable by the Customer to Aire Logic under this Agreement in the 12 month period preceding the commencement of the event or events.
16.5
The aggregate liability of under this Agreement shall not exceed the greater of:
£10,000,000; and
the total amount paid and payable by the Customer to Aire Logic under this Agreement.
Term and Termination
17.1
This Agreement shall, unless otherwise terminated as provided in this Clause 17, 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 otherwise terminated in accordance with the provisions of this Agreement.
17.2
The Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Term.
17.3
After the Initial Subscription Term, either party may terminate this Agreement by giving to the other party at least 60 days' written notice of termination.
17.4
After the Initial Subscription Term, either party may terminate this Agreement by giving to the other party at least 60 days' written notice of termination.
17.5
Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
the other party:
is dissolved;
ceases to conduct all (or substantially all) of its business;
is or becomes unable to pay its debts as they fall due;
is or becomes insolvent or is declared insolvent; or
convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement).
Effects of termination
18.1
On termination of this Agreement for any reason:
all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Maintenance and Support Services and/or the Documentation;
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;
Aire Logic may destroy or otherwise dispose of any of the Customer Data in its possession unless Aire Logic receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Aire Logic shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Aire Logic in returning or disposing of Customer Data; and
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.
18.2
Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
18.3
Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
18.4
Within 30 days following the termination of this Agreement for any reason:
the Customer must pay to Aire Logic any Charges in respect of licencing and services provided to the Customer before the termination of this Agreement; and
Aire Logic must refund to the Customer any Charges paid by the Customer to Aire Logic in respect of licensing and services that were to be provided to the Customer after the termination of this Agreement
Notices
19.1
Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 19.2 and the Quoatation:
Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 19.2 and the Quoatation:
delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting; or
sent bt email to an address notified in this agreement.
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
19.2
Aire Logic's contact details for notices under this Clause 19 are as follows: Procurement, Aire Logic, One Aire Street, Leeds, LS1 4PR, procurement@airelogic.com.
19.3
The addressee and contact details set out in Clause 19.2) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 19.
Subcontracting
20.1
Aire Logic may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
20.2
Aire Logic may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
General
21.1
No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
21.2
If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
21.3
This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
21.4
Subject to the terms of this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
21.5
This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
21.6
This Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
21.7
This Agreement shall be governed by and construed in accordance with English law and the courts of England and Wales shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
Interpretation
22.1
In this Agreement, a reference to a statute or statutory provision includes a reference to that statute or statutory provision as modified, consolidated and/or re-enacted from time to time and any subordinate legislation made under that statute or statutory provision.
22.2
The Clause headings do not affect the interpretation of this Agreement.
22.2
In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.