UK Master Terms & Conditions

TERMS AND CONDITIONS

1. These are the Terms and Conditions for Talking Medicines Limited, a company incorporated in Scotland (registered number SC447227) with registered office at Top Floor, 25 Blythswood Square, Glasgow, G2 4BL (“Talking Medicines”) in relation to its data subscription service for structured intelligence on patient experience, known as PatientMetRx (“Service”).
2. These Terms and Conditions together with the Services Confirmation form the agreement between Talking Medicines and the Customer for the Services (“Agreement“).

DEFINITIONS

1. Definitions used in the Services Confirmation will have the same meaning when used in these Terms and Conditions.
2. The following definitions apply to these Terms and Conditions.

   Authorised User:

   means an employee of the Customer who is authorised by the Customer to use the Services and the Documentation in accordance with the Agreement.

   Business Day:

   any day which is not a Saturday, Sunday or public holiday in the UK.

   Confidential Information:

   has the meaning provided in clause 10.1.

   Customer:

   means the customer stated in the Services Confirmation.

   Customer Data:

   the data inputted by the Customer and Authorised Users for the purposes of using the Services or facilitating the Customer’s use of the Services.

   Documentation:

   the documents made available to the Customer by Talking Medicines (including by online means) which sets out a description of the Services and the user instructions for the Services.

   Data Protection Legislation:

   means the Data Protection Act 2018 and all other privacy and data protection legislation in force within the UK together with the retained EU law version of the General Data Protection Regulation EU 2016/679.

   Effective Date:

   the date of last signature of the Services Confirmation.

   Initial Subscription Term:

   the initial period of subscription as set out in the Services Confirmation.

   Normal Business Hours:

   9.00 am to 5.00 pm local UK time, each Business Day.

   Renewal Period:

   the period described in clause 13.1.

   Services:

   the subscription services provided by Talking Medicines to the Customers under this Agreement via www.patientmetrx.com or any other website notified to the Customer by Talking Medicines from time to time.

   Services Confirmation:

   means the service confirmation document setting out the details of the Customer and the Services and which together with these Terms and Conditions form the Agreement.

   Software:

   the online software applications provided by Talking Medicines as part of the Services.

   Subscription Fees:

   any subscription fees payable by the Customer to Talking Medicines under this Agreement.

   Subscription Term:

   has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

   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.

AUTHORISED USERS

1. Talking Medicines grants to the Customer from the Effective Date a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
2. In relation to Authorised Users, the Customer undertakes that:
   1. the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number set out in the Services Confirmation or otherwise agreed in writing with Talking Medicines;
   2. each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep any password provided to him confidential; it will not allow any Authorised User account to be used by more than one Authorised User unless it has been reassigned in its entirety to another Authorised User with prior consent from Talking Medicines, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
   3. it shall provide an up-to-date list of current Authorised Users to Talking Medicines within 5 Business Days of Talking Medicines’ written request at any time or times;
   4. it shall permit Talking Medicines to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at Talking Medicines’ expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
   5. if any of the audits referred to in clause 3.2.4 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Talking Medicines’ other rights, the Customer shall promptly disable such passwords and Talking Medicines shall not issue any new passwords to any such individual; and
   6. if any of the audits referred to in clause 3.2.4 reveal that the Customer has underpaid Subscription Fees to Talking Medicines, then without prejudice to Talking Medicines’ other rights, Talking Medicines reserves the right to charge the Customer an amount equal to such underpayment, which amount shall be payable in accordance with clause 9.
3. The Customer shall not access, store, distribute or transmit any Viruses, or any material in its use of the Services that:
   1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
   2. facilitates illegal activity; or
   3. in a manner that is otherwise illegal or causes damage or injury to any person or property;

   and Talking Medicines reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

4. The Customer shall not (except to the extent expressly permitted under this Agreement), 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
   1. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
   2. 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
   3. use the Services and/or Documentation to provide services to third parties; or
   4. subject to clause 15.4, 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, or
   5. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3.
5. The Customer shall keep all password and log-in details used in the relation to the Services secure, and 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 Talking Medicines.
6. The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

SERVICES

1. Talking Medicines shall, during the Subscription Term, provide the Services and make the Documentation available to the Customer on and subject to the terms of this Agreement.
2. Talking Medicines shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
   1. planned maintenance carried out during the agreed maintenance windows; and
   2. unscheduled maintenance performed outside Normal Business Hours, provided that Talking Medicines has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
3. Talking Medicines will, as part of the Services and at no additional cost to the Customer, provide the Customer with Talking Medicines’ standard customer support services during Normal Business Hours.

DATA

1. As between the parties the Customer shall own all rights in the Customer Data
2. Talking Medicines shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy , as such document may be amended by Talking Medicines in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against Talking Medicines shall be for Talking Medicines to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Talking Medicines in accordance with the archiving procedure described in its Back-Up Policy. Talking Medicines shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Talking Medicines to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.

CUSTOMER OBLIGATIONS

1. The Customer shall provide Talking Medicines with such information and assistance as Talking Medicines may reasonably request in relation to this Agreement.
2. The Customer shall comply with all applicable laws and regulations with respect to its activities under this Agreement and shall carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner.
3. The Customer shall ensure that the Authorised Users use the Services and the Documentation in accordance with the terms of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement.
4. The Customer shall obtain and shall maintain all necessary licences, consents, and permissions necessary to enable it to receive the Services from Talking Medicines.
5. The Customer shall ensure that its network and systems comply with any relevant specifications provided by Talking Medicines from time to time and be solely responsible for procuring and maintaining its network and internet connections.

TALKING MEDICINES OBLIGATIONS

1. Talking Medicines undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Talking Medicines’ instructions, or modification or alteration of the Services by any party other than Talking Medicines or Talking Medicines’ duly authorised contractors or agents. If the Services do not conform with this undertaking, Talking Medicines will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding this, Talking Medicines:
   1. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
   2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3. This Agreement shall not prevent Talking Medicines 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 under this Agreement.
4. Talking Medicines warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

RIGHTS IN THE SERVICES

1. All intellectual property rights in the Services are owned by or validly licensed to Talking Medicines.
2. Software and Documentation provided in relation to the Services are provided solely in relation to the Customer’s use of the Services in accordance with this Agreement and are not provided, or to be used, for any other purpose.

PAYMENT

1. The Customer shall pay the Subscription Fees to Talking Medicines for the Services in accordance with this clause 9.
2. The Customer shall provide to Talking Medicines valid, up-to-date and complete credit card details or approved purchase order information acceptable to Talking Medicines and any other relevant valid, up-to-date and complete contact and billing details.
3. If the Customer provides:
   1. its credit card details to Talking Medicines, the Customer hereby authorises Talking Medicines to bill such credit card on or after the Effective Date for Subscription Fees payable;
   2. its approved purchase order information, Talking Medicines shall invoice the Customer on or after the Effective Date and the Customer shall pay each invoice issued by Talking Medicines within 30 days after the date of such invoice.
4. If Talking Medicines has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Talking Medicines:
   1. Talking Medicines may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Talking Medicines shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
   2. interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Royal Bank of Scotland at the date the relevant invoice was issued, commencing on the due date and continuing until fully paid, whether before or after judgment.
5. All amounts and fees stated or referred to in this Agreement shall be payable in pounds sterling, are non-cancellable and non-refundable, and are exclusive of value added tax, which shall be added to Talking Medicines’ invoice(s) at the appropriate rate.
6. Talking Medicines shall be entitled to increase the Subscription Fees upon 7 days’ prior notice to the Customer, but not more than once during any 12 month period during the Agreement.
7. Notwithstanding clause 9.6, Talking Medicines shall be entitled to increase the Subscription Fees in the event that the Customer switches to a higher subscription package for the Services.

CONFIDENTIALITY

1. Each party (Receiving Party) shall keep in strict confidence any information that is proprietary or confidential and is either clearly labelled as such or which ought reasonably to be treated as confidential, including all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain (“Confidential Information”).
2. The Receiving Party shall restrict disclosure of such Confidential Information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause “Confidentiality” shall survive termination of the Agreement.
3. Notwithstanding the terms of clause 10.1 and 10.2 above, Talking Medicines shall be entitled to reference the Customer as being a customer of Talking Medicines in relation to its marketing activities.

INDEMNITY

1. The Customer shall defend, indemnify and hold harmless Talking Medicines 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 Customer’s use of the Services and/or Documentation, provided that:
   1. the Customer is given prompt notice of any such claim;
   2. Talking Medicines provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
   3. the Customer is given sole authority to defend or settle the claim.
2. Subject to clause 12, Talking Medicines shall defend the Customer, and if applicable, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
   1. Talking Medicines is given prompt notice of any such claim;
   2. the Customer provides reasonable co-operation to Talking Medicines in the defence and settlement of such claim, at Talking Medicines’ expense; and
   3. Talking Medicines is given sole authority to defend or settle the claim.
3. In the defence or settlement of any claim, Talking Medicines may procure the right for the Customer 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 this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
4. In no event shall Talking Medicines, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
   1. a modification of the Services or Documentation by anyone other than Talking Medicines; or
   2. the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Talking Medicines; or
   3. the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Talking Medicines or any appropriate authority.
5. The foregoing and clause 12.4 state the Customer’s sole and exclusive rights and remedies, and Talking Medicines’ entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

LIMITATION OF LIABILITY

1. This clause 12 sets out the entire financial liability of Talking Medicines (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) to the Customer in respect of:
   1. any breach of the Agreement however arising;
   2. any use made by the Customer of the Services; and
   3. any representation, statement or delictual act or omission (including negligence) arising under or in connection with the Agreement.
2. Except as expressly and specifically provided in this Agreement:
   1. the Customer assumes sole responsibility for its use of the Services and all information obtained from such use, and for conclusions drawn from such use. Use of the Services does not guarantee the Customer any improvement in its business efficiencies;
   2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
   3. the Services and Documentation are provided to the Customer on an “as is” basis.
3. Nothing in these Terms and Conditions seeks to exclude Talking Medicines’ liability for death or personal injury caused by negligence or for fraud or fraudulent misrepresentation. However, Talking Medicines excludes all other liability to the extent permitted at law.
4. Subject to clause 12.3, in no event shall Talking Medicines be liable for any loss of business, loss of profit, loss or corruption of data or for any indirect or consequential loss and Talking Medicines’ total aggregate liability arising under the Agreement or otherwise relating to the Services shall be limited to the total Subscription Fees paid during the 12 month period preceding the date on which the claim arose.

TERM AND TERMINATION

1. The Agreement shall, unless otherwise terminated under the remaining provisions of this clause 13, commence on the Effective Date and continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of one year (each a Renewal Period), unless:
   1. either party notifies the other party of termination, in writing, at least one month before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the application Initial Subscription Term or Renewal Period; or
   2. 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.”

2. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement without liability to the other if:
   1. the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
   2. the other party is insolvent within the meaning of section 123 of the Insolvency Act 1986; or
   3. the other party ceases, or threatens to cease, to trade.
3. On termination of this Agreement for any reason:
   1. all licences granted under this Agreement shall immediately terminate;
   2. 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; and
   3. the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

DISPUTE RESOLUTION

1. In the event the parties are unable to resolve a dispute between them arising out of or relating to the Agreement, and except for claims for interdict or other similar relief, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution Model Mediation Procedure. Unless otherwise agreed between the Parties, the mediator will be nominated by the Centre for Effective Dispute Resolution and the mediation will take place in Scotland. The mediation agreement referred to in the Model Procedure shall be governed by Scots law.
2. If the dispute is not settled by mediation within 10 days of commencement of the mediation or within such further period as the parties may agree in writing, the parties shall be free to seek to resolve the dispute by such other means subject always to clause 16.

GENERAL

1. The Customer acknowledges that as of the last update to this Agreement, the Data Sources used in the Service are: SocialGist Boards, Twitter, Reddit.
2. If Talking Medicines choose to waive any particular right it has under the Agreement on any particular occasion this does not prevent it from exercising that right on another occasion.
3. If any part of the Agreement is held by a court of law (or similar forum) to be invalid or unenforceable, this shall not affect the validity or enforceability of the rest of the Agreement.
4. Talking Medicines shall have no liability to the Customer 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.
5. The Customer is not entitled to transfer or assign its rights and obligations under the Agreement to anyone else without Talking Medicines’ prior written permission.
6. Nothing in the Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
7. All notices required or permitted under the Agreement will be in writing. Any notice shall be deemed to have been duly received:
   1. if delivered personally, when left at the address;
   2. if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting; or
   3. if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. Notices relating to the Agreement will be sent to the primary corporate addresses set forth in the Agreement or to such other address as Customer or Talking Medicines may notify the other party in writing.

LAW AND JURISDICTION

1. The Agreement, including the Services Confirmation referencing these Terms and Conditions, constitutes the complete and exclusive understanding and agreement between Customer and Talking Medicines regarding its subject matter and supersedes all prior or other agreements or understandings, written or oral, relating to its subject matter (including any proposal Talking Medicines may have issued to the Customer). Each party acknowledges that, in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to the Agreement or not) other than as expressly set out in the Agreement.
2. If there are any disputes arising out of use of the Service or relating to the Agreement then these will be governed by the laws of Scotland. If either party requires to raise court proceedings in relation to any such dispute then the courts of Scotland shall have exclusive jurisdiction under this Agreement in relation to those proceedings.