This END USER LICENCE AGREEMENT (the “EULA” or the “Licence”) is a legal agreement between you (the “Licensee” or “you”) and TORAN HEALTH TECHNOLOGY LIMITED, a limited company, whose operational place of business is at the 6B Scott St., Killarney, Co. Kerry, Republic of Ireland V93 HW28, Companies Registration Office number 505429 (“the Company”, “Licensor”, “MyClinic365”, “our” or “we”) for your licensed use of and access to www.MyClinic365.com (the “Website”), the internet based user interface (the “Web Application”) and the multi-platform smartphone and tablet software application (the “Mobile Application”) (together the Website, the Web Application and the Mobile Application are hereafter described as the “Platform”) and your access to the clinical practice management solution provided by MyClinic365 and as described on the Website from time to time (the “Services”) in accordance with the terms of this Agreement.
DISCLAIMER: MyClinic365 is not a HealthCare Provider. MyClinic365 is not intended and does not replace the advice of a Healthcare Provider or clinician. It is not intended to override the professional judgment of a healthcare professional.
BY REGISTERING FOR, UPLOADING TO AND/OR DOWNLOADING DATA AND INFORMATION FROM THE PLATFORM AND YOUR SUBSEQUENT CONTINUED USE OF THE PLATFORM AND THE SERVICES, YOU CONSENT TO BE BOUND BY THIS LICENCE. BY TICKING THE BOX ON REGISTRATION, AND AT ANY OTHER TIME ON LOGGING IN TO THE WEBSITE, THE WEB APPLICATION AND/OR THE APPLICATION AND THROUGH YOUR CONTINUED USE OF THE SERVICES AND THE PLATFORM, YOU AGREE TO BE BOUND TO THE TERMS OF THIS LICENCE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT REGISTER FOR THE PLATFORM, OR USE ANY OF THE SERVICES. BY TICKING THE BOX YOU CONFIRM THAT YOU HAVE READ, ACCEPT AND UNDERSTOOD THE TERMS OF THIS LICENCE AGREEMENT, THAT YOU ALSO CONSENT TO USE ELECTRONIC SIGNATURES AND ACKNOWLEDGE YOUR TICKING OF BOX TO BE AN ELECTRONIC SIGNATURE SUFFICIENT TO BIND YOU TO THE TERMS OF THIS LICENCE AGREEMENT.
1. GRANT AND SCOPE OF LICENCE
1.1 General: The Company provides you with access to the Services through the Platform, for your own personal use only, Healthcare Providers are provided with access to the Services on a commercial basis via the Business User/Healthcare Provider Agreement [ LINK].
1.2.1 Content: the Services and the Platform provides information, calculations, algorithms and tools, designed to assist and inform the decisions of clinicians in the treatment of patients “Content”; and
1.2.2 User Generated Content: the information or content provided by an End User posted to the Platform.
1.2.3 Healthcare Provider: the business user engaging with the platform and leveraging the MyClinic365 Services.
1.3 Licence: MyClinic365 hereby grants to you a limited, personal, non-commercial, non- exclusive, non-transferable, temporary, revocable, non-assignable, non-sub-licensable licence and right to access the Platform and the Services though a generally available web browser, mobile device operating system or through the Web and Mobile Applications in consideration of your strict and continued compliance with the following conditions:
1.3.1 your agreement, as evidenced by your acceptance of this EULA and your continued use of the Platform and the Services, to abide by the terms of this Licence;
1.3.3 not to use scraping, spidering, crawling or other technology or software of a malicious nature to access or make available to third parties information or data secured by the Platform, whether such data or information relates to MyClinic365, the Platform, the Services or Content without the express written consent of MyClinic365.
1.4 Use: Any use of the Platform, its software and/or Services or any part thereof in a manner contrary to the scope and purpose of this Licence is strictly prohibited and a violation of this Agreement, terminable in accordance with Section 12. MyClinic365 is not intended to override the professional judgment of a healthcare professional or Healthcare Provider. This Platform and the Content is only available via licensed application marketplaces such as the Apple App Store and Google Play and directly as a web app from www.myClinic365.com. Sourcing this Platform from another source without the consent of MyClinic365 is not permitted and a direct breach of the terms of this Agreement.
1.5 Intellectual Property:
1.5.1 “Intellectual Property Right(s)” includes any patent, trade or other mark, registered design, topography right, copyright, database right or any other right in the nature of any of the foregoing (or application, or right to apply for, any of the foregoing), and trade or business name, invention, discovery, improvement, design, technique, confidential process or information or know how, in each case subsisting anywhere in the world and whether registered, unregistered, or unregisterable, and any licence or right of user of any of the foregoing, and the full right to all legal protection relating to the same;
1.5.2 MyClinic365 reserves all Intellectual Property Rights in and to the Platform, the Content and the Services and any such Intellectual Property Right shall at all times be and for all purposes remain vested in MyClinic365 and/or its licensors, including all copies made of the Website, the Web Application and the Mobile Application in accordance with Section 10.
2. ACCESS TO THE SERVICES
2.1 Your Account: MyClinic365 is offering access to and use of the Platform and the Services solely for use by the person or entity in whose name an account is registered and not for the use or benefit of any third party. In particular, no use of the Platform may be made by an individual other than you personally. Healthcare Providers will access the Platform and the Services via the Healthcare Provider Agreement [link]. MyClinic365 may change, suspend or discontinue any part of the Platform, the Content and/or the Services at any time, including the availability of any feature, database, or content.
2.2 Account Limitation: The Company may also impose limits on certain features of the Platform and the Services or restrict your access to parts or all of the Services without notice or liability. For as long as the Company continues to offer the Platform and the Services, we shall provide and seek to update, improve and expand. Therefore, MyClinic365 reserves the right, at its discretion, to modify this EULA at any time by posting a notice on the Web Application or the Mobile Application, or by sending you a notice via e-mail, and you consent to the receipt of such notice. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Platform and the Services following such notification constitutes your acceptance of the terms and conditions of this EULA as modified. Any new features that materially augment or enhance the Platform and/or the Services currently available, including the release of new tools and resources, shall be subject to this Agreement (as updated). You can review the most current version of the EULA at any time at: www.MyClinic365.com/eula .
2.3 Account Availability: The Company will use reasonable efforts to ensure that the Platform and the Services are available twenty-four hours a day, seven days a week. However, access to the Platform and Services shall be as they may exist and be available on any given day and the Company has no other obligation, except as expressly stated in this EULA. There will be occasions when the Platform and the Services will be unavailable or interrupted for maintenance, upgrades and emergency repairs or due to failure of telecommunications links and equipment. Every reasonable step will be taken by MyClinic365 to minimize such disruption where it is within MyClinic365’s reasonable control. YOU AGREE THAT MYCLINIC365 WILL NOT BE LIABLE IN ANY EVENT TO YOU OR ANY OTHER PARTY FOR ANY SUSPENSION, MODIFICATION, DISCONTINUANCE OR LACK OF AVAILABILITY OF THE PLATFORM, SERVICES OR OTHER CONTENT. MyClinic365 retains the right to create limits on use and storage with respect to the Platform and the Services determined at its sole discretion at any time with or without notice.
2.4 Eligibility: To be eligible to use the Website, the Application and the Services, you must meet the following criteria and represent and warrant that you:
2.4.1 are not currently restricted from use of the Website, the Application and the Services, or not otherwise prohibited from having an MyClinic365 account;
2.4.2 will only maintain one End User Account at any given time (unless explicitly consented to by MyClinic365);
2.4.3 will not violate any rights of MyClinic365, including Intellectual Property Rights such as copyright, patent, design or trademark rights;
2.4.4 agree to provide at your cost all equipment, software, and internet access necessary to use the Platform and the Services;
2.4.5 understand and agree that use of the Plaform and the Services may entail the applicability of certain incidental usage charges (“Incidental Charges”) during the installation and use of the Service. These Incidental Charges may, among others, be levied by your mobile network operator or your internet service provider. You are advised to consult your mobile data or internet data plan to identify the Incidental Charges which may be incurred prior to the installation and operation of these Services; and
2.5 Suitability: You certify to MyClinic365 that you are legally permitted to use the Platform and the Services, and take full responsibility for the selection and use of the Platform and the Services.
2.6 Prohibition by law: This Agreement is void where prohibited by law, and the right to use the Platform and Services are revoked in such jurisdictions. MyClinic365 makes no claim that the Services may be lawfully used or that User Generated Content may be uploaded or downloaded in any jurisdiction save the jurisdiction specified by this EULA. Access to the Content made available via the Platform may not be legally permitted by certain persons or in certain countries. If you use the Services or the Platform from outside Ireland, you do so at your own risk and you are responsible for compliance with the laws of that jurisdiction. Furthermore, if you believe that you are entitled or obligated to act contrary to this Agreement under any mandatory law, you agree to provide us with a detailed and substantiated explanation of your reasons in writing at least 30 days before you act contrary to this Agreement, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.
3.1 Registration Process:
3.1.2 Registering: When you register, you will be required to generate a unique log -in credential (a password) which relates to your own personal email address. Your password will be subject to certain limitations as regards availability, at the sole discretion of MyClinic365. We reserve the right to forfeiture of your password at any time. The combination of your email address and password permits us to verify you as the permitted and authorised user of the particular End-User Account, as well as providing access to the secure parts of the Platform and the Services. Access to the secure aspects of the Platform and the Services is not permitted for any other person or entity using your email and password and you are responsible for preventing such unauthorized use. Upon successful completion of the registration process, you will be afforded access to your End-User Account. You will be required to validate your End User Account through a validation process by email.
3.2 Access Denial: Individuals whose access to the Website, the Application or use of the Services has previously been terminated by MyClinic365 may not register for another account, nor may you designate another individual to use your account on your behalf. MyClinic365 expressly reserves the right not to grant access to anyone they may choose, to the Services, the Platform or to create an End-User Account for any reason.
3.3 Authentication: The Website and Application rely on email addresses and passwords to know whether the person accessing the Platform and utilising the Services are authorized to do so. If someone accesses the Platform and or the Services using an email address and/or password that you have provided us with, we will rely on that email address and password and will assume that access has been made by you. You are recommended to change your password regularly to prevent unauthorised use. You are solely responsible for any and all access to the Platform, your End-User Account and/or use of the Services by persons using your email address and password. Please notify us immediately if you believe or become aware that your End-User Account is being used without your authorization.
3.4 Access Indemnity: You indemnify us and hold us harmless for all damages and losses related to your failure to comply with the provisions of this Section 3, including, without limitation, your failure to secure your End-User Account from third party access.
4. AGE AND RESPONSIBILITY
4.1 Age: Any individual making use of the Platform or the Services must be over 18 years of age to register or utilise them.
4.2.1 By using and registering for the Platform and the Services, you understand that you are financially responsible for the applicable costs (if any) of using the services as detailed in this Agreement.
4.2.2 You agree to notify us immediately of any unauthorised use of your log-on information or any other breach of security.
4.2.3 This Platform is not intended to override the professional judgment of a healthcare professional or Healthcare Provider. Any and all content relating to healthcare is provided by a particular Healthcare Provider and expressly not by MyClinic365. MyClinic365 is not involved, save as to facilitate a connection between End Users and a particular Healthcare Provider. We cannot assure that the transactions will be completed, nor do we guarantee the ability or the intention of the Healthcare Provider. As we cannot control the information provided by the Healthcare Providers or the Service provided to you or any third party by the Healthcare Providers we do not guarantee or endorse the authenticity, quality, safety or legality of any Healthcare Providers or the Services provided or purported to be provided by the Healthcare Providers, or the ability of the Healthcare Providers to complete the transaction. This website may include information and materials uploaded by other users of the site. This information and these materials have not been verified or approved by us. The views expressed by other users on our site do not represent our views or values. This Platform must not be considered complete or comprehensive due to possible errors in the database and the Content. Use of the Platform is solely at the End User’s risk.
5. USER UNDERTAKINGS
5.1 Undertaking: Except as expressly set out in this Licence or as permitted by any local law, you undertake not to:
5.1.1 use the Services for any unlawful or illegal purpose;
5.1.2 act dishonestly or fraudulently by engaging in objectionable conduct, or by posting inappropriate, inaccurate, or objectionable content to or through the Platform;
5.1.3 publish inaccurate information in the designated fields on registration for the service (e.g. do not include a link or an email address in your name field)
5.1.4 make any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Platform, the software and or content contained in either or both;
5.1.5 make any translation, adaptation, arrangement or any other alteration of the permanent aspects of the Platform or any of the software contained in either or both;
5.1.6 make any form of distribution to the public of the content of the Platform, the software, in whole or in part, or of copies thereof;
5.1.7 make any form of distribution to the public of the Content or any other content on the Platform save as in accordance with the terms of this EULA;
5.1.8 remove or alter any copyright, meta-tags or other proprietary notice from the Platform, the Software and/or the Content;
5.1.9 disseminate, sell, give away, hire, lease, offer or expose for sale or distribute the content of the Platform, the Content or another associated data, information, product or content wholly or partially derived from any of the foregoing;
5.1.10 create an End-User Account for anyone other than a natural person;
5.1.11 harass, abuse or harm another person, including sending unwelcomed communications to others using the Services;
5.1.12 use or attempt to use another End Users account without authorization from MyClinic365 or that End User or create a false identity on the Website and/or the Application;
5.1.13 Upload, post, email, transmit or otherwise make available or initiate any content that:
a) falsely states, impersonates or otherwise misrepresents your identity to MyClinic365, including but not limited to the use of a pseudonym;
b) is unlawful, libellous, abusive, obscene, discriminatory or otherwise objectionable;
c) adds to a content field such content that is not intended for such field (i.e. submitting a telephone number in the “Name” or any other field, or including telephone numbers, email addresses, street addresses or any personally identifiable information for which there is not a field provided by MyClinic365);
d) includes information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships.
e) infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights; and/or
f) includes any unsolicited or unauthorised communication, advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation. This prohibition includes but is not limited to (i) using MyClinic365 to send messages to people who have not expressly consented to the receipt of such contact through the privacy controls on the system; (ii) sending messages to distribution lists, newsgroup aliases, or group aliases.
5.1.14 imply or state, directly or indirectly, that you are affiliated with or endorsed by MyClinic365 unless you have entered into a written agreement with MyClinic365;
5.1.15 reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used in the Platform or to provide the Services, or any part thereof;
5.1.16 use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the Platform;
5.1.17 infringe or use the MyClinic365 brand, logos and/or trademarks, including, without limitation, using the word “MyClinic365” in any business name, email, or URL or including MyClinic365’s trademarks and logos except as expressly permitted by MyClinic365;
5.1.18 use bots or other automated methods to access the Platform, add or download contacts, send or redirect messages, or perform other activities through the Platform, unless explicitly permitted by MyClinic365;
5.1.19 Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Platform;
5.1.20 Attempt to or actually access the Platform by any means other than through the interfaces provided by MyClinic365. This prohibition includes accessing or attempting to access MyClinic365 using any third-party service, including software-as- a-service platforms that aggregate access to multiple services, including MyClinic365 and proxy services;
5.1.21 Deep-link to the Platform for any purpose, (i.e. including a link to MyClinic365 other than the home page) unless expressly authorized in writing by MyClinic365 or for the purpose of authorised promotion;
5.1.22 Engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on MyClinic365’s infrastructure, including, but not limited to, sending unsolicited communications to other Users or MyClinic365 personnel, attempting to gain unauthorised access to MyClinic365, or transmitting or activating computer viruses through or on the Platform.
5.2 Compliance Indemnity: You hereby agree to indemnify and hold MyClinic365 and its licensors harmless from and against any liabilities, damages, judgments, costs and expenses (including reasonable legal fees and indirect and consequential loss) (“Losses”) arising out of your registration for the Website, any downloading, installation and use of the Application software, or use of the Services in a manner inconsistent with this EULA. This tool should only be used by qualified oncology healthcare professionals.
5.3 Warranty: You represent and warrant that you have the legal right and capacity to enter into this EULA in your jurisdiction.
6. MYCLINIC365’S UNDERTAKINGS
6.1 MyClinic365 Indemnity: We shall indemnify you against any claim that your use of or access to the Platform or Services infringes the copyright of any third party provided:
6.1.1 such claim relates to the technology and software underlying the Platform and or the Services;
6.1.2 we are immediately notified of any such claim;
6.1.3 you do not make any admission of liability;
6.1.4 we are given immediate and complete control of such claim, including the right to conduct the defence of any claim and to make any settlements as appropriate; and
6.1.5 the claim does not arise on foot of any of the circumstances set out in Section 5 above.
6.2 Remedies: We shall have the right at our discretion, to replace, modify or change the software incorporated in the Services to make any such software non-infringing. The maximum aggregate liability of MyClinic365 shall be equal to that which is set out in section 9 of this Agreement. This states the entire liability of MyClinic365 to you in respect of the infringement of the Intellectual Property Rights of any third parties.
6.3 Disclosure of End User Information:
6.3.1 You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide to us, if required to do so by law or we, in good faith believe that such access, preservation or disclosure is reasonably necessary in our opinion to:
(a) comply with legal process, including, but not limited to, civil and criminal subpoenas, court orders or other compulsory disclosures;
(b) enforce this Agreement;
(c) respond to claims of a violation of the rights of third parties, whether or not the third party is a User, individual, or government agency;
(d) respond to customer service inquiries; or
(e) protect the rights, property, or personal safety of MyClinic365 employees, our users or the public.
7. THIRD PARTY SITES
7.1 Links: MyClinic365 if it includes links to third party web sites in its Content (“Third Party Site(s)”) is not responsible for and does not endorse any features, content, advertising, products or other materials on or available from Third Party Sites or applications. If you decide to access Third Party Sites, you do so at your own risk and agree that your use of any Third Party Sites is on an “as-is” basis without any warranty, and your use of any Third Party Site is subject to the terms and conditions contained therein.
8. WARRANTY & DISCLAIMER
8.1 ANY INFORMATION OR CONTENT CONTAINED IN THE PLATFORM OR PROVIDED VIA THE SERVICES IS PROVIDED “AS IS” OR “AS AVAILABLE”. WHILE MYCLINIC365 STRIVES TO PROVIDE YOU WITH USEFUL AND ACCURATE EVIDENCE BASED INFORMATION, MYCLINIC365 DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS, THAT THE INFORMATION CONTAINED IN CONTENT PROVIDED BY THIS PLATFORM IS UP-TO- DATE AND COMPLETE.
8.2 MYCLINIC365 EXPRESSLY DISCLAIMS RESPONSIBILITY FOR CONTENT DELIVERED OR PROVIDED BY HEALTHCARE PROVIDERS TO END USERS. MYCLINIC365 IS NOT IN CONTROL OF AND DOES NOT DELIVER ANY SUCH ADVICE OR CONTENT.
8.3 TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. IF YOU ARE DISSATISFIED WITH THE PLATFORM, THE SERVICES, OR DO NOT AGREE WITH THE TERMS OF THIS EULA, YOU MAY CLOSE YOUR MYCLINIC365 ACCOUNT AND TERMINATE THIS EULA IN ACCORDANCE WITH SECTION 12 (“TERMINATION”) AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY. THIS PLATFORM AND THE CONTENT PROVIDED BY IT, MUST NOT BE CONSIDERED COMPLETE OR COMPREHENSIVE DUE TO POSSIBLE ERRORS IN THE DATABASE.
8.4 MYCLINIC365 IS NOT RESPONSIBLE AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR THE DELIVERY OF ANY MESSAGES OR COMMUNICATION (SUCH AS EMAILS, FORUM POSTINGS OR TRANSMISSION OF ANY OTHER USER GENERATED CONTENT) UPLOADED TO THE MYCLINIC365 PLATFORM. THE TRANSMISSION OF ANY SUCH MESSAGES OR COMMUNICATION SHALL BE ENTIRELY THE RESPONSIBILITY OF THE MOBILE NETWORK OPERATOR OR BROADBAND INTERNET PROVIDER. IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR PERSONAL USE OF THE SERVICE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON THE PLATFORM OR ANY USER MANUALS MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL, SERVICE, OR TECHNOLOGY TO US.
8.5 MYCLINIC365 DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY OTHER USERS; THEREFORE, MYCLINIC365 DISCLAIMS ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
8.6 MYCLINIC365 DOES NOT GUARANTEE THAT THE SERVICES IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN OPERATION. IN PARTICULAR, THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. MYCLINIC365 DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONALITY. FURTHERMORE, MYCLINIC365 DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE PLATFORM DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
9. LIMITATION OF LIABILITY.
9.1 Precedence: This Section prevails over all other provisions of this EULA and sets out the entire liability of MyClinic365 in respect of:
9.1.1 the performance, non-performance, purported performance or delay in performance by MyClinic365 of its obligations under this EULA; and
9.1.2 otherwise in relation to this Agreement or the entering into or performance of this EULA.
9.2 Losses not excluded: Nothing in this EULA shall exclude or limit MyClinic365’s liability specifically;
9.2.1 under the tort of deceit;
9.2.2 for death or personal injury caused by any breach of duty;
9.2.3 any breach of an obligation implied by the Sale of Goods Act 1893 and/or the Sale of Goods, Supply of Services Act 1980 (if any); or
9.2.4 any other liability to the extent that under applicable law it cannot be excluded or limited.
9.3 No Implied Terms: The terms of this EULA are in lieu of all other conditions, warranties and other terms concerning the supply or purported supply of, or failure to supply or delay in supplying, any services (except for those arising under the Sale of Goods Act 1893 and/or the Sale of Goods, Supply of Services Act 1980 (if any) which might but for this Clause have effect between MyClinic365 and you or would otherwise be implied or incorporated into this EULA or any collateral contract, whether by statue, common law, or otherwise (including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or as to the use of reasonable skill and care), all of which are hereby excluded.
9.4 Non-Contractual Liability: Subject to 9.2, MyClinic365 does not accept, and excludes all liability for breach of any obligation or duty to take reasonable care or exercise reasonable skill other than any such obligation or duty arising under this EULA.
9.5 Indirect Loss: Subject to 9.2, MyClinic365 shall not be liable in contract, tort or otherwise howsoever for any of the following losses or damage, (whether or not such damage was foreseen, foreseeable, known or otherwise):
9.5.1 revenue, actual or anticipated profits, contracts, use of money, anticipated savings, business, opportunity, goodwill, reputation, damage or corruption of data ; or
9.5.2 any indirect or consequential loss howsoever caused (including, for the avoidance of doubt, whether such loss or damage is of a type specified in 9.5.1).
9.6 Breach of Warranty: For the avoidance of doubt, MyClinic365 shall have no liability to remedy a breach of warranty where such breach arises as a result of any of the following circumstances:
9.6.1 any use of the Services by you other than in accordance with the terms of this Agreement or use of the Services for a purpose for which they were not designed;
9.6.2 any temporary or permanent reproduction by any means and in any form, in whole or in part, of the Platform;
9.6.3 any reverse assembly, reverse compilation, reverse engineering or adaptation of the whole or part of the Platform;
9.6.4 any alteration, modification, adjustment, translation, adaptation or enhancement made by you to the Website or the Application or any combination, connection, operation or use of the Platform with any other equipment, software or documentation;
9.6.5 any dissemination, sale, hire, lease offer or exposure for sale or distribution of the Platform;
9.6.6 any item of third party hardware or software, even if forming part of the software or if the Licensor has recommended such third party hardware or software;
9.6.7 any breach by you of your obligations under this Agreement or of the Licensor’s Intellectual Property Rights; or
9.6.8 any act, omission, negligence, fraud or default of or by you.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Vesting: You acknowledge that all Intellectual Property Rights, title and interest in the Platform and the Services contained therein, throughout the world belong to MyClinic365, that rights in the these are licensed (not sold) to you, and that you have no rights in, or to, the Platform and the Services other than the right to use them in accordance with the terms of this EULA.
10.2 Contributions: MyClinic365 provides a feedback facility and engages in surveys from time to time. Please note that MyClinic365 develop or are developing similar ideas independently of any content, information, ideas, suggestions or other materials which you may supply.. Any ideas, suggestions, documents, improvements, comments, proposals or feedback in relation to the operation of the Website, the Application and or the Services (“Feedback”) in whatever manner or form facilitated by the Platform; any such communication with MyClinic365 whether verbally, via postings on blogs, forums, questionnaires, email and the like (“Communication”), you acknowledge and agree that such Feedback and or Communication (together “Contributions”):
10.2.1 do not contain confidential or proprietary information;
10.2.2 do not create any express or implied obligation of confidentiality in respect of MyClinic365;
10.2.3 MyClinic365 is free to use or disclose (or choose not to use or disclose) such Contributions for any purpose, in any way, in any media worldwide;
10.2.4 does not preclude MyClinic365 from having something similar to the Contributions already under consideration or in development;
10.2.5 that you irrevocably waive and assign all right, title and interest in and to the Contributions to MyClinic365;
10.2.6 does not entitle you to any compensation, royalty or reimbursement of any kind from MyClinic365 under any circumstances; and
10.2.7 you further agree to provide MyClinic365 with such assistance as may be required in documenting, perfecting and maintaining MyClinic365’s rights in and to any such Contributions.
11. INTEGRITY OF DATA
11.1 Not Bespoke: You acknowledge that the Platform, the Services and the software have not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Platform and the Services as described on the Website, meet your requirements.
11.2 Minor Errors: You acknowledge that the Platform and the Services may not be free of bugs or errors and you agree that the existence of any errors shall not constitute a breach of this Licence.
11.3 Insurance: You agree that you are the best judge of the value and importance of the data held on your End-User Account and that you will be solely responsible for taking out any insurance policy or other financial cover for loss or damage which may arise from loss of data for any reason.
12.1 Duration: This Licence is effective either until deactivated by you by emailing us at feedback@myClinic365.com.
12.2 Immediate Termination: MyClinic365 may terminate this Licence immediately if:
12.2.1 you commit a material or persistent breach of this Licence which you fail to remedy (if remediable) within 14 days after the service on you of notice requiring you to do so;
12.2.2 a petition for a bankruptcy order to be made against you has been presented to the court;
12.2.4 for just cause at the sole discretion of MyClinic365 to include, but not limited to the abuse of any fair usage policy or for the breach of any matter outlined under Section 5.1 above.
12.3 Upon termination for any reason:
12.3.1 all rights granted to you under this Licence shall cease;
12.3.2 you must cease all activities authorised by this Licence;
12.3.3 you must immediately pay to the Licensor any sums due to the Licensor under this Licence if applicable; and
12.3.4 All data stored and retained in the System will be deleted within a reasonable period.
13. DATA PROTECTION:
13.2 The Company and the Healthcare Provider acknowledge that for the purposes of the Data Protection Act 1988, 2003, 2018 and GDPR, the Company is the Data Processor and the Healthcare Provider is the Data Controller in respect of Patient(s) Data
13.3 The Healthcare Provider will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Patient’s Personal Data via MyClinic365 for the duration and purposes of the Services.
13.4 The Company shall, in relation to any Patient(s) Data processed in connection with the performance by the Company of the Services:
13.4.1 process Patient(s) Data only on the written instructions of the Healthcare Provider unless required by the laws of any member of the European Union or by the laws of the European Union applicable to the Company to process Personal Data (“Applicable Laws”);
13.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Patient(s) Data and against accidental loss or destruction of, or damage to, Patient(s) Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
13.4.3 ensure that all the Company’s staff who have access to and/or process Patient(s) Data are obliged to keep the Patient(s) Data confidential;
13.4.4 ensure that where a Sub-Processor is used, the Company shall:
a) only engage a Sub-Processor with the prior consent of the Healthcare Provider;
b) inform the Healthcare Provider of any intended changes concerning the addition or replacement of Sub-Processors;
c) implement a written contract containing the same data protection obligations as set out in this agreement, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the Applicable Laws;
d) understand that where any Sub-Processor is used on their behalf, that any failure on the part of the Sub-Processor to comply with the Applicable Laws or the relevant data processing agreement, the Company, as the initial Data Processor, remains fully liable to the Healthcare Provider for the performance of the Sub- Processor’s obligations;
13.4.5 not transfer any Patient Data outside of the European Economic Area unless:
a) the European Commission has issued a decision confirming that the country to which we transfer the Personal Data ensures an adequate level of protection for the data subjects’ rights and freedoms;
b) appropriate safeguards are in place such as binding corporate rules (BCR), standard contractual clauses approved by the European Commission, an approved code of conduct or a certification mechanism;
c) the Patient has provided explicit consent to the proposed transfer after being informed of any potential risks; or
d) the Patient Data is being transferred to a company in the US which has self- certified its compliance with the EU-US Privacy Shield which has been found by the European Commission to provide an adequate level of protection to the Personal Data of EU citizens;
13.4.6 assist the Healthcare Provider, at the Healthcare Provider’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the data protection laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
13.4.7 notify the Healthcare Provider without undue delay on becoming aware of a Personal Data breach;
13.4.8 within 45 days of the date of termination or cancellation of your Contract delete Patient’s Data and copies thereof unless required by Applicable Laws to store the Personal Data; and
13.4.9 maintain complete and accurate records and information to demonstrate its compliance with these obligations and make such records and information available to the Healthcare Provider and allow for and contribute to audits, including inspections, conducted by the Healthcare Provider or another auditor mandated by the Healthcare Provider.
13.5 Each party warrants to the other that it will process the Personal Data in compliance with all Applicable Laws, enactments, regulations, orders, standards and other similar instruments.
13.6 The Company is not liable in respect of any Patient(s) Data which is controlled by the Healthcare Provider in breach of data protection laws or outside the scope of the permissions granted to the Healthcare Provider by the Patient.
14.1 Service messages: For the purposes of service messages and notices about the Services to you, MyClinic365 may place a banner notice across the Platform to alert you to certain changes such as modifications to this EULA. Alternatively, notice may consist of an email from MyClinic365 to an email address associated with your account, even if we have other contact information, or via a digital distribution platform for mobile applications, applicable to your particular device.
14.2 General Communication: You also agree that MyClinic365 may communicate with you through your account or through other means including email, mobile and telephone about your account or services associated with MyClinic365. Please review your settings to control what kind of messages you receive from us. To unsubscribe from any communication we circulate to you, please click on the unsubscribe mechanism at the bottom of the communication. You acknowledge and agree that we shall have no liability associated with or arising from your failure to do so, to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Platform and Services.
14.3 Contacting MyClinic365: In addition MyClinic365 may be contacted via our mail courier at: 6B Scott St., Killarney, Co. Kerry, Republic of Ireland V93 HW28, and feedback@MyClinic365.com
15. AMENDMENTS TO THE LICENCE
15.1 Amendments: MyClinic365 reserves the right, at our sole discretion, to amend, add or delete any of the terms and conditions of this Licence. MyClinic365 will post notifications of any such changes to this Licence on the Website or in the Application, will provide a link to the revised version of this Licence, and may provide such other notice as the Licensor may elect in its sole discretion. If any future changes to this Licence are unacceptable to you or cause you to no longer be in compliance with this Licence, you may terminate this Licence in accordance with the terms herein.
15.2 Evidence of Acceptance: Your installation, download and/or use of any updated or modified Software (if any) and/or your continued use of the Website, the Application or the Services following notice of changes to this Licence as described above means you accept any and all such changes. MyClinic365 may change, modify, suspend, or discontinue any aspect of the Website, the Application and/or the Services at any time.
15.3 Limits: MyClinic365 may also impose limits on certain features without notice or liability. You disclaim any right, title or interest, monetary or otherwise, in any feature or content contained in the Platform and/or the Services.
16. WAIVER: Strict Performance: If MyClinic365 fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if MyClinic365 fails to exercise any of the rights or remedies to which it is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
17. CONFIDENTIAL INFORMATION
18. SEVERABILITY: Severance of Terms: If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
19. ENTIRE AGREEMENT: This EULA and any document expressly referred to in it represents the entire agreement between you and MyClinic365, in relation to the license hereunder and supersedes any prior agreement, representation, understanding or arrangement between us, whether oral or in writing. Both Parties hereunder acknowledge that, in entering into this EULA, neither Party has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Licence except as expressly stated in this Licence.
20. LAW AND JURISDICTION: Jurisdiction: This EULA is governed by Irish law. Any dispute arising from, or related to, any term of this EULA shall be subject to the exclusive jurisdiction of the Irish courts.
21. LANGUAGE: Any dispute arising from, or related to, any term of this EULA arising between the Parties, shall be resolved or determined based on the English language version alone. These terms were originally written in English. In the event that these terms are translated into any other language, the translation shall be for review purposes only and have no legal effect.
22. RELATIONSHIP: Nothing in this Agreement shall create, evidence or imply any agency, partnership or joint venture between you and MyClinic365. Neither you nor MyClinic365 shall act or describe itself as the agent of the other; nor shall either party represent that it has any authority to make commitments on behalf of the other.
END USER LICENCE AGREEMENT VERSION DRAFT 1.0
LAST UPDATED JANUARY 2020
TORAN HEALTH TECHNOLOGY LIMITED