|(A)||X-Lab has developed the software application known as NETIMIS which X-Lab makes available as a service to Customers on the Website via the Internet on a monthly subscription basis for the purpose of simulating healthcare situations which the Customer can analyse by means of pathway modelling.|
|(B)||The Customer wishes to use NETIMIS to assist in their business operations and acknowledges their use of NETIMIS will be solely for this purpose.|
|(D)||The Customer acknowledges that NETIMIS will evolve and X-Lab reserves the right to vary these Terms, the Software and the Support Service by notice to the Customer on the Website. The Customer is deemed to have accepted such variations by their continued use of NETIMIS.|
|(E)||By signing up to use the Services you confirm that you have read and agree to these Terms.|
|1.||DEFINITIONS AND INTERPRETATION|
The definitions and rules of interpretation in this clause apply in these Terms.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Commencement Date: the date on which the customer signs up with the Pricing Plan selected.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.
Contract Duration: the period starting on the date you sign up for the Services and ending on the date on which your use of the Services is terminated in accordance with these Terms.
CSP: the cloud service provider engaged by X-Lab to host the Software.
Customer/you: the person who has access to NETIMIS and who is identified with their user email and password.
Data: the data input by the Customer.
Documentation: the documents made available to the Customer by X-Lab online via the Website which set out a description of the Services, the cost of the Services and the user instructions for the Services.
Fees: the fees payable by the Customer to X-Lab for the provision of the Services at the Pricing Plan selected by the Customer.
Normal Business Hours: 9:00 am to 5:00 pm local UK time, each Business Day.
Services: the use of the NETIMIS services together with the Support Services provided by X-Lab.
Software: the online software application (as amended from time to time by X-Lab) known as NETIMIS and provided by X-Lab as part of the Services.
Support Services: the services referred to in clause 4.5 and more particularly in the Schedule.
Trial Period: any period during which X-Lab may agree to provide the Services to a Customer subject as provided in clause 2.10 to enable the Customer to evaluate the Software.
Personal Plan: the Personal Plan (including the Free Trial), the functionality and other features of which are described from time to time on the Website.
Virus: anything 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 or access to the same.
Website: The website at www.netimis.co.uk or such other website address as may be notified from time to time by X-Lab to the Customer.
Fault: any failure, bug, error or problem encountered by the users of the Software.
X-Lab: X-Lab Limited (Company Number 05995322) whose registered office is at 10C Joseph's Well, Hanover Walk, LEEDS, LS3 1AB.
|1.2||Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.|
|1.3||A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).|
|1.4||Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.|
|1.5||Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.|
|1.6||A reference to a statute or statutory provision is a reference to it as it is amended, extended or re-enacted from time to time.|
|1.7||A reference to a statute or statutory provision shall include all subordinate legislation made under that statute or statutory provision.|
|1.8||References to clauses and schedules are to the clauses in and schedules to these Terms; references to paragraphs are to paragraphs of the relevant schedule to these Terms.|
|2.1||Subject to the Customer paying the fees in accordance with clause 8, and the other terms and conditions of these Terms, X-Lab hereby grants to the Customer a non-exclusive, non-transferable right to use the Services and the Documentation only for the purpose of processing the Customer's Data for the Customer's internal business operations.|
|2.2||Subject as provided in clause 12, the rights granted in clause 2.1 are granted from the Commencement Date and thereafter until either party shall give to the other not less than 30 days notice to terminate the Customer's use of the Services in accordance with clause 12.3.|
|2.3||X-Lab shall enable the Customer to access and use the Services and the Documentation by means of user email and password which the Customer undertakes to keep confidential.|
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of his
use of the Services that:
and X-Lab 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.
The Customer shall not:
|2.6||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 X-Lab.|
|2.7||The rights provided under this clause are granted to the Customer only, and shall not be considered granted to any other person.|
|2.8||The Customer acknowledges that X-Lab may monitor the use of the Services and the Documentation to ensure that the users are signed up users and otherwise to ensure that these Terms are being complied with.|
|2.9||The Customer accepts responsibility for the selection of the Software to achieve their intended results and acknowledges that the Software has not been developed to meet the individual requirements of the Customer.|
|2.10||If the Customer has been granted the right to use the Services and the Documentation for a Trial Period these Terms (other than any terms relating to the payment of the Fees) shall apply to the Customer during the Trial Period.|
|2.11||You warrant that you are not a consumer within the meaning of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations.|
|3.1||X-Lab shall, during the Contract Duration provide the Services and make available the Documentation to the Customer on and subject to these Terms.|
|3.2||The Customer shall only use the Services in accordance with the Documentation.|
X-Lab shall use commercially reasonable endeavours to make the Services available 24 hours a day,
seven days a week, except for:
|3.4||X-Lab will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Support Services during Normal Business Hours in accordance with the Schedule and the Customer will, if required by X-Lab permit X-Lab to have remote access to the Customer's computer system to enable X-Lab to provide the Support Service. X-Lab may amend the Support Services in its sole and absolute discretion from time to time.|
|3.5||The extent of the Services are limited by the Pricing Plan selected by the Customer. If there shall be any change in the features of any Pricing Plan, X-Lab shall notify the Customer of such change by not less than 30 days prior written notice.|
|4.1||The Customer shall own all right, title and interest in and to all of the Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Data.|
|4.2||X-Lab shall use reasonable commercial endeavours to ensure that the CSP provides sufficient capacity to store and back up Data.|
|4.3||The Customer acknowledges that any Data can only be retrieved by the use of NETIMIS and X-Lab shall not be responsible for any loss of Data or corruption of Data caused by any attempt to use, back up or retrieve Data by use of any system or software other than NETIMIS.|
|4.5||The Customer acknowledges that X-Lab is neither a data controller nor a data processor of the Customer's Data for the purposes of the Data Protection Act 1998.|
|4.6||The Customer warrants that it will comply with the terms of the Data Protection Act.|
|5.1||X-Lab undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.|
The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which
is caused by use of the Services contrary to X-Lab's instructions, or modification or
alteration of the Services by any party other than X-Lab. If the Services do not conform
with the foregoing undertaking, the Customer will, at their 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 5.1.
Notwithstanding the foregoing, X-Lab:
|5.3||These Terms shall not prevent X-Lab 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 these Terms.|
|5.4||X-Lab warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.|
The Customer shall:
|7.||CHARGES AND PAYMENT|
|7.1||The Customer shall pay the Fees to X-Lab in accordance with this clause 7.|
The Customer shall on the Commencement Date provide to X-Lab valid, up-to-date
and complete debit card/ credit card/ PayPal details or approved purchase order
information acceptable to X-Lab and any other relevant valid, up-to-date and complete
contact and billing details and, if the Customer provides:
If X-Lab has not received payment within 30 days after the invoice date, and without prejudice
to any other rights and remedies of X-Lab:
All amounts and fees stated or referred to in these Terms:
|7.5||X-Lab shall be entitled to increase the Fees by notice on the Website and via email communication to the Customer.|
|8.1||The Customer acknowledges and agrees that X-Lab and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, these Terms do not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether sign up or not), or any other rights or licences in respect of the Services or the Documentation.|
|8.2||X-Lab 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 these Terms.|
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 these Terms Provided that a party's Confidential Information shall not be
deemed to include information that:
|9.2||Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.|
|9.3||X-Lab acknowledges that the Data is the Confidential Information of the Customer.|
|9.4||This clause 9 shall survive termination of these Terms, however arising.|
The Customer shall defend, indemnify and hold X-Lab harmless 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:
X-Lab shall defend the Customer against any claim that the Services or Documentation infringes any United Kingdom patent effective as
of the Commencement 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:
|10.3||In the defence or settlement of any claim, X-Lab 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 these Terms 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.|
In no event shall X-Lab, its employees, agents and sub-contractors be liable to the Customer to the extent that the
alleged infringement is based on:
|10.5||The foregoing and clause 11.4(2) state the Customer's sole and exclusive rights and remedies, and X-Lab's (including X-Lab's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.|
|11.||LIMITATION OF LIABILITY|
This clause 11 sets out the entire financial liability of X-Lab (including any liability for the
acts or omissions of its employees, agents and sub-contractors) to the Customer:
Except as expressly and specifically provided in these Terms:
Nothing in these Terms excludes the liability of X-Lab:
Subject to clause 11.2 and clause 11.3:
|12.||TERMS AND TERMINATION|
|12.1||These Terms shall, unless otherwise terminated as provided in their clause 12, commence on the Commencement Date and shall continue thereafter until terminated in accordance with clause 12.3.|
Without affecting any other right or remedy available to it, X-Lab may terminate these Terms with immediate effect by
giving written notice to the Customer if:
|12.3||The Customer may give 30 days notice to terminate their use of the Services by writing and sent to X-Lab at email@example.com.|
|12.4||X-Lab may terminate the Customer's use of the Services by giving the Customer 30 days notice to terminate sent to the signed up users email address of the Customer.|
|12.5||A notice sent by email shall be deemed to have been received when the sender has confirmation of sending, or if an email is sent other than during Normal Business Hours that email shall be deemed to have been sent at 9am on the first business day following the date of sending.|
|X-Lab shall have no liability to the Customer under these Terms if it is prevented from or delayed in performing its obligations under these Terms, 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 X-Lab 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 Customers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.|
|No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).|
|No failure or delay by a party to exercise any right or remedy provided under these Terms 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.|
|16.||RIGHTS AND REMEDIES|
|Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.|
|17.1||If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.|
|17.2||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.|
|18.1||These Terms, 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.|
|18.2||Each of the parties acknowledges and agrees that in entering into these Terms 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 these Terms or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.|
|19.1||The Customer shall not, without the prior written consent of X-Lab, assign, transfer, charge, sub-contract or deal in any other manner with all or any of their rights or obligations under these Terms.|
|19.2||X-Lab may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.|
|20.||NO PARTNERSHIP OR AGENCY|
|Nothing in these Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).|
|21.||THIRD PARTY RIGHTS|
|These Terms does not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.|
|22.1||Any notice required to be given under these Terms (other than a notice given in accordance with clause 12.3 and other than any notice given on the Website to users of the Website or to users of the Services) shall be in writing shall be sent by X-Lab to the Customer at the signed up users email address of the Customer and shall be sent by the Customer to X-Lab at firstname.lastname@example.org.|
|22.2||A notice sent by email shall be deemed to have been received when the sender has confirmation of sending, or if an email is sent other than during Normal Business Hours that email shall be deemed to have been sent at 9am on the first business day following the date of sending.|
|These Terms 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.|
|Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).|
The agreement to which these Terms relate has been entered into on the Commencement Date.
|1.||X-Lab shall provide a support desk to deal with enquiries raised by you during 9am to 5pm local UK time during Normal Business Hours, excluding for the avoidance of doubt Saturdays, Sundays and Bank Holidays.|
|2.||The support desk and the services described in the following paragraphs of this Schedule 2 will be provided only during Normal Business Hours. Any Faults reported by you (whenever sent) if reported other than during Normal Business Hours shall be deemed to have been first received during those Normal Business Hours which immediately follow the date and time of your report.|
|3.||Diagnosis and, where possible, the correction of faults, including to correct all errors, bugs and failures of the Software to comply with the description of the Software on the Website.|
|The impact and security level of reported Faults will be discussed with you at the time X-Lab receives or is deemed to receive notice of the Fault. Support Desk will agree with you, assign and document the severity of all reported Faults.|
|Problem Level||Response Time||Escalation||Fault Resolution Time|
|Critical||1 Hour||Immediate||4 Hours to Support Desk Resolution|
|Urgent||1 and a Half Hours||6 Hours||16 Hours to Support Desk Resolution|
|Routine||Next Business Day||None||Preventative maintenance as appropriate|
|Each incident will be prioritised individually based on an agreement between the support desk and you and with regard to the potential impact on the end users. Faults preventing you from working or accessing the system will be treated as higher priority than those related to non-critical activity.|
|Critical - Problems have occurred where one or more processes or programs have experienced abnormal termination and these problems must be resolved before you can continue with normal business operations. X-Lab will response to Critical issues within one hour from you reporting the issue.|
|Urgent - Problems have occurred that severely limit normal use of the system however the system is still operational and work-around solutions are available to continue with business operations. X-Lab will respond to urgent issues within one and a half hours.|
|Routine - Problems not defined as Critical or Urgent and which do not materially affect your use of the Software or your business operations. X-Lab shall respond to Routine issues no later than the next business day from your reporting of the issue.|