1 Interpretation

1.1 The definitions and rules of interpretation in this clause apply in the Agreement.

Acceptable Use Policy: means Healthera’s policy on acceptable use of the Services as updated from time to time and made available at https://healthera.co.uk/acceptable-use;

Agreement: means each Order Form, these Terms and Conditions and the other documents incorporated into the Agreement as described in these Terms and Conditions; 

App: the mobile application made available by Healthera to Patients;

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Software and the Documentation, as further described in clause 2.1;

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;

Confidential Information: means commercial, financial, marketing and technical information, know-how, trade secrets and other information in any form or medium, howsoever disclosed or accessed, whether before or after the date of the Agreement (together with any reproductions of such information in any form or medium), which in each case (either in its entirety or in the precise configuration or assembly of its components) is not publicly available (save for where such information entered the public domain as a result of a breach of the Agreement);

Contract Start Date: means the date stated on an Order Form;

Customer: the customer detailed on an Order Form;

Customer Data: the data inputted by the Customer, Authorised Users, or Healthera on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services;

Data Protection Schedule: means the data protection schedule attached as Schedule 1;

Delivery Partner Fee: means the delivery partner fees payable by the Customer to Healthera as detailed in an Order Form;

Delivery Partner Go-Live: has the meaning given to it in an Order Form;

Delivery Partner Obligations: has the meaning given to it in an Order Form;

Delivery Partner Patients: means App users who are connected to the Customer through Healthera after Delivery Partner Go-Live but excluding Existing Patients;

Delivery Partner Services: means the additional delivery partner services to be provided by Healthera as may be ordered by the Customer under an Order Form;

Documentation: the document made available to the Customer by Healthera online or such other web address notified by Healthera to the Customer from time to time which sets out a description of the Software and the user instructions for the Services;

Existing Patients: means (i) all App users connected to the Customer through Healthera before the Delivery Partner Go-Live and (ii) App users who are connected to the Customer through Healthera after Go-Live as a result of the Customer’s direct text or email invitation;

Healthera: Healthera Limited, a company incorporated in England and Wales under number 09609198 whose registered office is at St John’s Innovation Centre, Cowley Road, Cambridge, CB4 0WS;

Healthera Materials: means all materials, documents, information and provided by Healthera to the Customer relating to the Services, including braded materials, drawings, data, reports and specifications;

Initial Subscription Term: has the meaning given to it in an Order Form;

Intellectual Property Rights:  means copyright and related rights, design rights, rights in know-how, rights in Confidential Information, database rights, software rights, patents, rights to inventions, utility models, rights in trade marks (and all goodwill attaching to such trade marks), trade names, domain names and topography rights, in each case whether registered or unregistered, including all applications for, and renewals or extensions of such rights, and any other similar or equivalent rights or forms of protection that subsist or will subsist now or in the future anywhere in the world;

Marketplace Services: means the marketplace services to be provided by Healthera to the Customer as further described in and subject to the Marketplace Terms and Conditions;

Marketplace Terms and Conditions:means the terms and conditions applying to the Marketplace Services available at https://www.healthera.co.uk/marketplace-terms

Normal Business Hours: 9.00 am to 6.00 pm local UK time, each Business Day;

Order Form: means the separate executed document(s) under which the Customer subscribes to the Services pursuant to the Agreement and has been agreed to in writing by the Parties;

Patient: means the Existing Patients and the Delivery Partner Patients;

Payment Term: has the meaning given to it in an Order Form;

Pharmacy Site: any individual physical store or online entity or any other entity approved by Healthera whose business is to dispense medications;

Pharmacy Subscriptions: means the Pharmacy Site subscriptions purchased by the Customer pursuant to clause 2.1 and as detailed in an Order Form which entitle Authorised Users to access and use the Software and the Documentation in accordance with the Agreement;

Renewal Period: has the meaning given to it in an Order Form;

Services: means the delivery of the Documentation, provision of the SaaS Service, the Delivery Partner Services, the Marketplace Services and any additional services (including any training) as set out in an Order Form;

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

Subscription Fees: the subscription fees payable by the Customer to Healthera as detailed in an Order Form;

Subscription Term: has the meaning given in clause 14.1  (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Services Policy: Healthera’s policy for providing support in relation to the Services as made available in the Services website or such other website address as may be notified to the Customer from time to time;

Terms and Conditions: these terms and conditions; and

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 the Agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as updated from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that legislation.

1.8 A reference to writing or written includes e-mail.

1.9 References to clauses and schedules are to the clauses and schedules of the Agreement; references to paragraphs are to paragraphs of the relevant schedule to the Agreement.

1.10 A reference to a party is to a party to the Agreement.

1.11 In the event of any inconsistency between: (i) any provisions of an Order Form; and (ii) the provisions of these Terms and Conditions, the provisions of an Order Form shall prevail.

2 Pharmacy Subscriptions

2.1 Subject to the Customer purchasing the Pharmacy Subscriptions and paying the Subscription Fees in accordance with clause 8.1, the  restrictions set out in this clause 2 and complying with the other terms and conditions of the Agreement, Healthera hereby grants to the Customer a non-exclusive, non-transferable, non-sub licensable  right to permit the Authorised Users to use the Software and the Documentation during the Subscription Term solely for the Customer’s internal business operations.

2.2 For the avoidance of doubt, the Services are provided to the Customer on a non-exclusive basis and nothing in this Agreement shall prevent Healthera offering the App and/or services similar to the Services to any other customers and/or users.

2.3 From time to time, the Customer may request to add an additional Pharmacy Site to the Services during the Subscription Term by giving written notice to Healthera and purchasing an additional Pharmacy Subscription. The Subscription Fee in relation to the additional Pharmacy Site shall be payable from the 1st day of the next calendar month following the addition of the Pharmacy Site.

2.4 The Customer undertakes on behalf of itself and the Authorised Users that:

2.4.1 it will not allow or suffer any Pharmacy Subscription to be used by more than one individual Pharmacy Site unless it has been reassigned in its entirety to another individual Pharmacy Site, in which case the prior Pharmacy Site shall no longer have any right to access or use the Services and/or Documentation;

2.4.2 each Authorised User shall keep a secure password for his use of the Services and Documentation, such password shall be changed no less frequently than every six months and that each Authorised User shall keep his password confidential;

2.4.3 it shall maintain a written, up to date list of current Authorised Users and provide such list to Healthera within five Business Days of Healthera’s written request at any time or times;

2.4.4 it shall permit Healthera 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 Healthera’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not substantially to interfere with the Customer’s normal conduct of business;

2.4.5 if any of the audits referred to in clause 2.4.4 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Healthera’s other rights, the Customer shall promptly disable such passwords and Healthera shall not issue any new passwords to any such individual; and

2.4.6 if any of the audits referred to in clause 2.4.4 reveal that the Customer has underpaid Subscription Fees to Healthera, then without prejudice to Healthera’s other rights, the Customer shall pay to Healthera an amount equal to such underpayment as calculated in accordance with the Subscription Fees within ten Business Days of the date of the relevant audit.

2.5 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

2.5.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2.5.2 facilitates illegal activity;

2.5.3 depicts sexually explicit images;

2.5.4 promotes unlawful violence;

2.5.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

2.5.6 in a manner that is otherwise illegal or causes damage or injury to any

person or property,
and Healthera 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.

2.6 The Customer 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 the Agreement:

2.6.1 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;

2.6.2 attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;

2.6.3 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;

2.6.4 use the Services and/or Documentation to provide services to third parties;

2.6.5 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

2.6.6 attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.

2.7 The Customer 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 Healthera.

2.8 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

3 Services

3.1 Healthera shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of the Agreement.

3.2 Healthera shall use commercially reasonable endeavours to make the Software available twenty-four hours a day, seven days a week, except for scheduled maintenance performed outside Normal Business Hours and any unscheduled maintenance, provided that Healthera has, where possible, used reasonable endeavours to give the Customer at least six Normal Business Hours’ notice in advance.

3.3 Healthera will, as part of the Services and at no additional cost to the Customer, provide the Customer with Healthera’s standard customer support services during Normal Business Hours in accordance with Healthera’s Support Services Policy in effect at the time that the Services are provided.  Healthera may amend the Support Services Policy in its sole and absolute discretion from time to time.  The Customer may purchase enhanced support services separately at Healthera’s then current rates.

3.4 From 7 October 2021, Healthera will provide the Marketplace Services to all Customers which, from 1 November 2021, will be subject to the payment of additional fees by the Customer. Full details are set out within the Marketplace Terms and Conditions.

4 Customer Data

The Customer shall own all right, title and interest in and to all of the Customer Data uploaded into the Software and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

5 Third party providers

5.1 The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.  Healthera makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not Healthera.  Healthera recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.  Healthera does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.

5.2 Healthera is entitled to determine at its sole discretion the content and functionality of the Software and the App including third party content. Healthera may, without limitation to the generality of this clause 5.2, establish new limits on the Services (or any part), including limiting the volume of data which may be used, stored or transmitted in connection with the Service, remove or restrict application programming interfaces or make alterations to data retention periods.

5.3 Healthera shall be entitled at anytime to modify the features and functionality of the Services (“New Features”). Healthera shall not be obliged to make such New Features available to the Customer.

6 Supplier’s obligations

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

6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Healthera’s instructions, or modification or alteration of the Services by any party other than Healthera or Healthera’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier 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 6.1.  Notwithstanding the foregoing, Healthera:

6.2.1 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

6.2.2 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.

6.3 For the avoidance of doubt, the Services are provided to the Customer on a non-exclusive basis. The Agreement shall not prevent Healthera 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 the Agreement.

6.4 Healthera warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.

6.5 Healthera makes no representations or warranties of any kind, express or implied relating to the suitability of the Software and/or Services for any particular purpose, nor does Healthera guarantee any particular results or outcomes resulting from the use of the Software and/or Services.

7 Customer’s obligations

7.1 The Customer shall:

7.1.1 provide Healthera with:

(a) all necessary co-operation in relation to the Agreement; and

(b) all necessary access to such information as may be required by Healthera in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

7.1.2 comply with all applicable laws and regulations with respect to its activities under the Agreement;

7.1.3 comply with all reasonable instructions of Healthera relating to the use of the Software including as indicated from time to time in the Documentation;

7.1.4 ensure that all Healthera Materials shall:

(i) at all times, be and remain the exclusive property of Healthera;

(ii) be held by the Customer in safe custody at its own risk;

(iii) be kept in good condition by the Customer until returned to Healthera (fair wear and tear excepted); and

(iv) not be disposed of or used other than in accordance with this Agreement and any other written requirements of Healthera;

7.1.5 carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Healthera may adjust any agreed timetable or delivery schedule as reasonably necessary;

7.1.6 ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of the Agreement and shall be responsible for any Authorised User’s breach of the Agreement;

7.1.7 obtain and shall maintain all necessary licences, consents, and permissions necessary for Healthera, its contractors and agents to perform their obligations under the Agreement, including without limitation the Services;

7.1.8 ensure that its network and systems comply with the relevant specifications provided by Healthera from time to time; and

7.1.9 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Healthera’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.

8 Charges and payment

8.1 The Customer shall pay the Subscription Fees to Healthera in accordance with this clause 8.

8.2 The Customer shall provide to Healthera valid, up-to-date and complete credit debit card or direct debit details or approved purchase order information acceptable to Healthera and any other relevant valid, up-to-date and complete contact and billing details and the Customer hereby authorises Healthera to take payment from such card on the Contract Start Date and every three months thereafter during the Subscription Term.

8.3 Subscription Fees shall be payable 3 months in advance or as agreed in accordance with the Customer’s Order Form.

8.4 If Healthera has not received payment within thirty days after the due date, and without prejudice to any other rights and remedies of Healthera:

8.4.1 Healthera may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Healthera shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

8.4.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to four percent (4%) over the then current base lending rate of Barclays Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8.5 All amounts and fees stated or referred to in the Agreement:

8.5.1 shall be payable in pounds sterling;

8.5.2 are non-cancellable and non-refundable

8.5.3 are exclusive of value added tax, which shall be added to Healthera’s invoice(s) at the appropriate rate.

8.6 Healthera shall be entitled to increase the Subscription Fees at the start of each Renewal Period based on a fair evaluation of inflation and any additional costs and an Order Form shall be deemed to have been amended accordingly

8.7 Mobile Payment Terms.

8.7.1 Healthera uses Stripe Connect as its payment processing platform which enables the Customer to receive payments from App users for products and services including prescription medication.
8.7.2 The Customer shall receive payments through a Stripe Connected Account whose usage is governed by the Stripe Connected Account Agreement https://stripe.com/gb/connect-account/legal
8.7.3 The Customer shall provide all business information, credentials and valid bank details to Stripe as is necessary to activate its Stripe Connected Account.
8.7.4 Stripe Connect shall charge a Transaction Fee of 2.00% of the transaction volume and £0.13 per transaction which is applicable to all Customers. 
8.7.5 Stripe Connect shall pay out monthly to the Customer’s bank account on or around the 8th day of the following month, minus the Transaction Fees applicable to the transactions of the month. 
8.7.6 The Customer’s Delivery Partner Fee, if applicable, shall be deducted during monthly payout.
8.7.7 Healthera shall be liable for the Customer’s fees pertaining to its Stripe Connected Account including set-up fee, pay-out fees, and account hosting fees.

8.8 Features under Usage-Based Fees.

8.8.1 From 1 January 2023 Healthera shall, at its sole discretion, make the following additional New Features available to Customers under a fee that is calculated on the Customer’s processing volume of prescription items (“Usage Fees”):

8.8.1.1 Web-based Patient Application with Customer logo accessible through an URL

8.8.1.2 Integration with the Electronic Prescriptions Service

8.8.1.3 Visibility into an App User’s ordering statistics, medicine history, and scheduled orders

8.8.1.4 The ability to propose scheduled orders for App Users

8.8.1.5 The ability to message specific demographics of App Users

8.8.1.6 Any other features Healthera shall introduce from time to time

8.8.2 Unless otherwise agreed, Healthera is under no obligation to provide these features without the Usage Fees also applying

8.8.3 The Usage Fees shall be calculated as £0.08 for each Prescription Item that is not a Referred Item (as defined under Marketplace Terms)

8.8.4 The Usage Fees shall be billed monthly in arrears alongside the Referred Item Fees through the same method as Subscription Fees.

8.8.5 Healthera reserves the right to adjust any fee or fee parameters at any time with one month notice to existing customers

9 Proprietary rights

9.1 The Customer acknowledges and agrees that Healthera and/or its licensors own all Intellectual Property Rights in the Services and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer any Intellectual Property Rights to, or in, or any other rights or licences in respect of the Services or the Documentation.

9.2 Healthera 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 the Agreement.

10 Data Protection

Each party shall comply with its obligations in the Data Protection Schedule.

11 Confidentiality

11.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement.  A party’s Confidential Information shall not be deemed to include information that:

11.1.1 is or becomes publicly known other than through any act or  omission of the receiving party;

11.1.2 was in the other party’s lawful possession before the  disclosure;

11.1.3 is lawfully disclosed to the receiving party by a third party  without restriction on disclosure;

11.1.4 is independently developed by the receiving party, which  independent development can be shown by written evidence;  or

11.1.5 is required to be disclosed by law, by any court of competent  jurisdiction or by any regulatory or administrative body.

11.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.

11.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Healthera’s Confidential Information.

11.6 Healthera acknowledges that the Customer Data is the Confidential Information of the Customer.

11.7 This clause 11 shall survive termination of the Agreement, however arising.

11.8 No party shall make, or permit any person to make, any public announcement concerning the 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.

12 Indemnity

12.1 The Customer shall defend, indemnify and hold harmless Healthera 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:

12.1.1 the Customer is given prompt notice of any such claim;

12.1.2 Healthera provides reasonable co-operation to the  Customer in the defence and settlement of such claim, at the  Customer’s expense; and

12.1.3 the Customer is given sole authority to defend or settle the  claim.

12.2 Healthera shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Contract Start 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:

12.2.1 Healthera is given prompt notice of any such claim;

12.2.2 the Customer provides reasonable co-operation to the  Supplier in the defence and settlement of such claim, at the  Supplier’s expense; and

12.2.3 Healthera is given sole authority to defend or settle the  claim.

12.3 In the defence or settlement of any claim, Healthera 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 the Agreement on two Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

12.4 In no event shall Healthera, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

12.4.1 a modification of the Services or Documentation by anyone  other than Healthera; or

12.4.2 the Customer’s use of the Services or Documentation in a  manner contrary to the instructions given to the Customer by  Healthera; or

12.4.3 the Customer’s use of the Services or Documentation after  notice of the alleged or actual infringement from Healthera  or any appropriate authority.

12.5 The foregoing and clause 13.5.2 state the Customer’s sole and exclusive rights and remedies, and Healthera’s (including Healthera’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any Intellectual Property Rights.

13 Limitation of liability

13.1 This clause 13 sets out the entire financial liability of Healthera (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

13.1.1 arising under or in connection with the Agreement;

13.1.2 in respect of any use made by the Customer of the Services  and Documentation or any part of them; and

13.1.3 in respect of any representation, statement or tortious act or  omission (including negligence) arising under or in connection  with the Agreement.

13.2 Except as expressly and specifically provided in the Agreement:

13.2.1 the Customer assumes sole responsibility for results obtained  from the use of the Services and the Documentation by the  Customer, and for conclusions drawn from such use. The  Supplier shall have no liability for any damage caused by  errors or omissions in any information, instructions or scripts  provided to Healthera by the Customer in connection with  the Services, or any actions taken by Healthera at  the  Customer’s direction;

13.2.2 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 the Agreement; and

13.2.3 the Services and the Documentation are provided to the  Customer on an “as is” basis.

13.3 Nothing in the Agreement excludes the liability of Healthera:

13.3.1 for death or personal injury caused by Healthera’s  negligence;

13.3.2 for fraud or fraudulent misrepresentation; or

13.4 any other matter in respect of which liability cannot by applicable law be limited.

13.5 Subject to clause 13.3, the Customer acknowledges and understands that software is inherently complex and may not be free from errors and neither Healthera, its licensors nor its suppliers shall be liable to the Customer  whether in tort (including for  negligence or breach of statutory duty), contract,  misrepresentation, restitution or otherwise for:

13.5.1 any loss of profits, loss of business, depletion of goodwill  and/or similar losses or loss or corruption of data or  information, or pure  economic loss, or for any special, indirect  or consequential loss, costs, damages, charges or expenses  however arising under the Agreement; and

13.5.2 Healthera’s total aggregate liability in contract (including in  respect of the indemnity at clause 12.2), tort (including  negligence or breach of statutory duty), misrepresentation,  restitution or otherwise, arising in connection with the  performance or contemplated performance of the Agreement  shall be limited to the greater of £1000 or the total  Subscription Fees paid for the User Subscriptions  during the  twelve months immediately preceding the date on which  the claim arose.

14 Term and termination

14.1 The Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Contract Start Date and shall continue for the Initial Subscription Term and, thereafter, the Agreement shall be automatically renewed for successive Renewal Periods, unless:

14.1.1 either party notifies the other party of termination, in writing, no earlier than 90 days before the end of the Initial Subscription Term but at least 14 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Agreement  shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

14.1.2 otherwise terminated in accordance with the provisions of the Agreement,

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term“.

14.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

14.2.1 the other party fails to pay any amount due under the  Agreement on the due date for payment and remains in  default not less than thirty days after being notified in writing  to make such payment;

14.2.2 the other party commits a material breach of any other term  of the Agreement which breach is irremediable or (if such  breach is remediable) fails to remedy that breach within a  period of thirty days after being notified in writing to do so;

14.2.3 the other party repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the  opinion that its conduct is inconsistent with it having the  intention or ability to give effect to the terms of the  Agreement  (including, for the benefit of Healthera, where the Customer  repeatedly breaches the Delivery Partner Obligations);

14.2.4 the other party suspends, or threatens to suspend, payment  of its debts or is unable to pay its debts as they fall due or  admits inability to pay its debts or is deemed unable to pay its  debts within the meaning of section 123 of the Insolvency Act  1986;

14.2.5 the other party commences negotiations with all or any class  of its creditors with a view to rescheduling any of its debts, or  makes a proposal for or enters into any compromise or  arrangement with its creditors other than for the sole purpose  of a scheme for a solvent amalgamation of that other party  with one or more other companies or the solvent  reconstruction of that other party;

14.2.6 a petition is filed, a notice is given, a resolution is passed, or  an order is made, for or in connection with the winding up of  that other party other than for the sole purpose of a scheme  for a solvent amalgamation of that other party with one or  more other companies or the solvent reconstruction of that  other party;

14.2.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to  appoint an administrator is given or if an administrator is  appointed, over the other party;

14.2.8 the holder of a qualifying floating charge over the assets of  that other party has become entitled to appoint or has  appointed an administrative receiver;

14.2.9 a person becomes entitled to appoint a receiver over the  assets of the other party or a receiver is appointed over the  assets of the other party;

14.2.10 a creditor or encumbrancer of the other party attaches or  takes possession of, or a distress, execution, sequestration or  other such process is levied or enforced on or sued against,  the whole or any part of the other party’s assets and such  attachment or process is not discharged within fourteen days;

14.2.11 any event occurs, or proceeding is taken, with respect to the  other party in any jurisdiction to which it is subject that has an  effect equivalent or similar to any of the events mentioned in  clause 14.2.4 to clause 14.2.10 (inclusive); or

14.2.12 the other party suspends or ceases, or threatens to suspend  or cease, carrying on all or a substantial part of its business.

14.3 On termination of the Agreement for any reason:

14.3.1 all licences granted under the Agreement shall immediately terminate;

14.3.2 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;

14.3.3 Healthera may destroy or otherwise dispose of any of the  Customer Data in its possession;

14.3.4 Customer shall immediately pay Healthera all Subscription  Fees under an Order Form to the end of the Initial  Subscription Term;

14.3.5 the Customer shall immediately provide to Healthera the Healthera and if the Customer fails to do so Healthera may enter the Customer premises and take possession of them; and

14.3.6 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 and shall not affect any provision of the Agreement that is expressly or by implication  intended to continue beyond termination.

15 Force Majeure

Healthera shall have no liability to the Customer under the Agreement if it is prevented from or delayed in performing its obligations under the 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 Healthera 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 suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.

16 Conflict

If there is an inconsistency between any of the provisions in the main body of the Agreement and the Schedules, the provisions in the main body of the Agreement shall prevail.

17 Update to Terms

Healthera may vary these Terms and Conditions from time to time by giving to the Customer at least 1 month notice in writing. 

18 Waiver

No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

19 Rights and remedies

Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

20 Severance

20.1 If any provision (or part of a provision) of the 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.

20.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

21 Entire agreement

21.1 The 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.

21.2 Each of the parties acknowledges and agrees that in entering into the 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 the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement.

22 Assignment

22.1 The Customer shall not, without the prior written consent of Healthera, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.

22.2 Healthera 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 the Agreement.

23 No partnership or agency

Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

24 Third party rights

The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

25 Notices

25.1 Any notice required to be given under the Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s fax number as set out in the Agreement.

25.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender), provided a hard copy is sent by post to the recipient within one Business Day.

26 Governing law

The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

27 Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1

Data Protection Schedule

 1 Definitions

1.1 In this Schedule, unless the context otherwise requires, the following words and expressions have the following meanings:

Controller: has the meaning given in the Data Protection Legislation;

Data Loss Event: any event that results, or may result, in unauthorised access to Personal Data held by Healthera under this Agreement, and/or actual or potential loss and/or destruction of Personal Data in breach of this Agreement;

Data Protection Legislation: the UK Data Protection Legislation including Data Protection Act 2018 and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable regulation relating to privacy;

Data Protection Officer: has the meaning given in the Data Protection Legislation;

Data Subject: has the meaning given in the Data Protection Legislation;

Healthera Personnel: means all directors, officers, employees, agents, consultants engaged in relation to the performance of Healthera’s obligations under the Agreement;

Personal Data: has the meaning given to it in the Data Protection Legislation;

Processor and processing: have the meaning given to it in the Data Protection Legislation;

Sub-Processor: any third party appointed to process Personal Data on behalf of Healthera related to the Agreement; and

UK Data Protection Legislation: means any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or the Data Protection Act 2018 or any successor or replacement legislation.

2 Basis for Processing or Sharing

2.1 Both parties will comply with all applicable requirements of the Data Protection Laws. This Schedule is in addition to, and does not relieve, remove or replace, the party’s obligations under the Data Protection Laws.

2.2 The parties acknowledge that for the purposes of this Agreement, Healthera is the Data Controller. Customer will be a joint data controller for some personal data as set out in Appendix 1.

2.3 The basis for processing and sharing Personal Data under this Agreement is in accordance with a lawful basis for processing Personal Data provided for by the Data Protection Laws. The details of the data processing activities in relation to this Agreement are set out in in Appendix 1.

3 Obligations of Healthera

3.1 Healthera shall only process Data on behalf of the Customer in accordance with the written instructions provided and to the extent, and in such a manner as set out in  Appendix 1. If Healthera is required to do otherwise by law then it will promptly notify the Customer of that legal requirement before processing the Personal Data.

3.2 Healthera will maintain complete and accurate records of any processing of Personal Data it carries out on behalf of the Customer.

3.3 If Healthera receives any complaint, notice or communication which relates directly or indirectly to the processing or sharing of the Personal Data or to either party’s compliance with the Data Protection Laws, it shall promptly notify the Customer and provide full co-operation and assistance in relation to any such complaint, notice or communication.

3.4 Healthera shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing and to protect against a Data Loss Event. The protective measures should take account of:

3.4.1 the nature of the data to be protected;

3.4.2 the harm that might result from a Data Loss Event;

3.4.3 the state of technological development; and

3.4.4 the cost of implementing any measures.

3.5 Healthera shall promptly inform the Customer if any Personal Data it holds is lost or destroyed or becomes damaged, corrupted, or unusable. Healthera will restore such Personal Data at its own expense.

3.6 Healthera shall notify the Customer immediately if it becomes aware of any unauthorised or unlawful processing of Personal Data and in such circumstances shall comply with all requests of the Customer in dealing with the situation.

3.7 At the Customer’s request, Healthera shall provide to the Customer a copy of all Personal Data belonging to the Customer (See Appendix 1) in a portable machine-readable format.

3.8 Upon termination of the Agreement for any reason, Healthera shall cease processing any Personal Data (See Appendix 1) and shall return Personal Data (See Appendix 1) to the Customer and any copies thereof or shall securely destroy all such Data if instructed to do so by the Customer and shall certify that this has been done, unless prevented from doing so by law.

4 Transfers outside the EEA

4.1 Healthera shall not transfer any Personal Data outside of the European Economic Area (“EEA”) unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

4.1.1 Healthera has provided appropriate safeguards in relation to the transfer to the satisfaction of the

4.1.2 the Data Subject has enforceable rights and effective legal remedies;

4.1.3 Healthera complies with its obligations under the Data Protection Laws by providing an adequate level of protection for any Personal Data that is transferred; and

4.1.4 Healthera complies with reasonable instructions notified to it in

advance by the Customer with respect to the processing of the Personal Data.

5 Healthera Personnel

5.1 Healthera shall ensure that access to the Personal Data (as described in Appendix 1) is limited to those Personnel who need access to the Personal Data to meet the Healthera’s obligations under this Agreement.

5.2 Healthera shall ensure that all Personnel:

5.2.1 are aware both of the Healthera’s duties and their personal duties and obligations under the Data Protection Laws and this Agreement

5.2.2 are informed of the confidential nature of the Personal Data and do not publish, disclose or divulge any of the Personal Data to any third party unless directed in writing to do so by the Customer or as otherwise permitted by this Agreement;

5.2.3 are subject to appropriate confidentiality undertakings with Healthera or any Sub-Processor; and

5.2.4 have undertaken adequate training on the Data Protection Laws relating to the use, care, protection and handling of Personal Data.

6 Rights of the Data Subject

6.1 Healthera shall notify the Customer immediately if it:

6.1.1 receives a request from a Data Subject for access to that person’s Personal Data;

6.1.2 receives a request to rectify, block or erase any Personal Data;

6.1.3 receives a request from any third party for disclosure of Personal Data where compliance with such a request is required or purported to be required by Law; or

6.1.4 becomes aware of a Data Loss Event.

6.2 Healthera shall provide the Customer with full co-operation and assistance in relation to any request referred to in clause 6.1.

6.3 Healthera shall promptly comply with any request from the Customer requiring Healthera to amend, transfer or delete the Personal Data (as described in Appendix 1).

6.4 Healthera shall designate a Data Protection Officer.

7 Rights of the Customer

7.1 The Customer is entitled, on giving reasonable notice to the Healthera, to inspect or appoint representatives to inspect all facilities, equipment, documents and electronic data relating to the processing of Personal Data by Healthera.

7.2 The requirement under clause 7.1 to give notice will not apply if the Customer believes that Healthera is in breach of any of its obligations under this Agreement.

8 Warranties

8.1 Healthera warrants that:

8.1.1 it will process (and share) the Personal Data in compliance with the Data Protection Laws and all other applicable laws, enactments, regulations, orders, standards and other similar instruments;

8.1.2 it will take such appropriate technical and organisational measures in order to ensure the safety and security of the Personal Data

8.1.3 it will take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data.

9 Appointment of Sub-Processors

9.1 Healthera may only authorise a third party (Sub-Processor) to process the Personal Data:

9.1.1 subject to the Customer ’s prior written consent where Healthera has supplied the Customer with details of such Sub- Processor;

9.1.2 provided that the Sub-Processor’s contract is on terms which are substantially the same as those set out in this Schedule; and

9.1.3 provided that the Sub-Processor’s contract for services provided to the Customer terminates automatically on termination of the Agreement for any reason.

10 Data sharing

10.1 The parties acknowledge that there may be circumstances in which Personal Data is input by Customer (as described in Appendix 1) to Healthera platform and Customer becomes a Data Controller in respect of that Personal Data. Furthermore, the Customer acknowledges that in such circumstances the Customer will comply with all its obligations as a Data Controller under the Data Protection Laws, will determine the purposes for which the Personal Data is being processed and will be liable directly to the Data Subject and regulatory authorities in relation to its responsibilities as Data Controller.

11 Customer Obligations

11.1 The Customer confirms that where Personal Data is shared in the circumstances envisaged by clause 10.1 above then it shall:

11.1.1 have in place an appropriately worded privacy and data  protection policy;

11.1.2 where appropriate, it will directly inform the relevant Data  Subjects that it is processing their Personal Data and is the  Data Controller in respect of that Personal Data;

11.1.3 ensure that it has in place appropriate procedures for dealing  with requests or any other complaints or queries from Data  Subjects;

11.1.4 have in place procedures and mechanisms for keeping all  Personal Data accurate and up to date in accordance with its  obligations as a Data Controller under the Data Protection  Laws;

11.1.5 the Customer agrees to promptly supply copies of its policies, procedures, notices and requests (and such other information  as may be reasonably required by Healthera) to Healthera  upon request;

11.1.6 Customer shall promptly inform Healthera if any Personal  Data is lost or destroyed or becomes damaged, corrupted, or  unusable;

11.1.7 Customer shall notify Healthera immediately if it becomes  aware of any unauthorised or unlawful processing of Personal  Data.

Appendix 1

Data Protection Schedule

Description of Processing

There are 3 categories of data subject:

• Registered Healthera App User
• Dependant of a registered Healthera App User
• Pharmacist

Technical and Organisational Measures

As a minimum, the following security measures shall be implemented by the Customer:

• Staff Policies and procedures on information security and privacy shall be written and made available. These policies must ensure that people processing the data are aware that they are subject to a duty of confidence
• User access controls
• Data protection and privacy training for staff
• Anti-virus and anti-malware deployed on all laptops and workstations
• To have a successful NHS Data Security and Protection submission

Written instructions for processing personal data when using the Healthera Connect service

The Customer acknowledges and agrees to follow the obligations described within this contract: Section 4 Obligations of the Data Processor, Section 28 Obligations of the Data Controller, Section 29 Data Subject Access Rights, Section 30 Confidentiality, Section 31 Sub-Contracting, Section 32 Incident Management, Section 33 Audit.