Terms and Conditions

1. DEFINITIONS

In this Contract the following words have the following meanings:

(i) “Annual Licence Fee” means the fee payable by the Customer for the Software licences, which shall be 95 per cent of the ‘Annual Fee’.
(ii) “Annual Fee” means the annual fee specified in the Order Form, representing the aggregate of the Annual Support Fee and the Annual Licence Fee.
(iii) “Annual Start Date” means the annual start date specified in the Order Form.
(iv) “Annual Support Fee” means the fee payable by the Customer for the Hosted Service, Support, and Maintenance, which shall be five per cent of the ‘Annual Fee’.
(v) “Doctors Appraisal” means Doctors Appraisal Informatics Limited, a company incorporated under the laws of England with company number 04133376 of Clayton House, Clayton Road, Newcastle upon Tyne, NE2 1TL.
(vi) “Contract” means the Order Form, these Terms & Conditions and the Schedule.
(vii) “Contract Date” means the contract date specified in the Order Form.
(viii) “Fees” means the fees and charges specified in the Order Form.
(ix) “Hosted Service” means Doctors Appraisal: (a) making the Software available (99.5% of the time on a 24 x 7 x 365 basis; measured during each calendar month) except during Maintenance; and (b) making Support available for Users in accordance with Clause 4.3.
(x) “Maintenance” encompasses the provision of new releases and new versions of the Software from time to time (at Doctors Appraisal’s discretion), and the provision of minor improvements, updates, enhancements, error corrections, upgrade scripts, and changes to the Software from time to time (at Doctors Appraisal’s discretion); each containing updates to the help files and documentation.
(xi) “Minimum Term” means the period from the Contract Date to the Annual Start Date, plus the period of whole years specified as such in the Order Form (measured from the Annual Start Date).
(xii) “Order Form” means the foregoing “Order Form”, which when completed and countersigned by the Customer incorporates these Terms & Conditions and constitutes the Contract.
(xiii) “Paper MSF” means Doctors Appraisal’s paper-based multi-source feedback service as further specified at http://www.doctorsappraisal.com/msfservice
(xiv) “Software” means Doctors Appraisal’s software application known as ‘DA’ as described in the user guide (freely available on request), including help files and documentation, and all new releases, new versions, updates, and modifications thereto that are provided to the Customer under this Contract.
(xv) “Support” encompasses the provision of a helpdesk service in respect of the Software errors and queries raised by Users.
(xvi) “Use” means permit the number and type of Users (as specified in the Order Form) to use the functionality of the Software that corresponds to their User type for internal purposes only and in accordance with the terms of this Contract.
(xvii) “Users” means the total number of named users set out in the Order Form. Each User is provided with a separate user account which is freely transferable to another User. Users must be employees of the Customer or individuals working on short term contracts for the Customer.

2. THIS CONTRACT

2.1 This Contract is formed (and becomes legally binding) when the completed Order Form is countersigned by the Customer.
2.2 The Customer acknowledges that Users may enter into separate contracts with Doctors Appraisal in respect of the provision of Paper MSF.
2.3 The Customer may contract separately with Doctors Appraisal in respect of the provision of Paper MSF for Users.
2.4 Doctors Appraisal warrants that it is authorised to enter into this Contract (and grant the licences herein).
2.5 From time to time, Doctors Appraisal may update these Terms and Conditions by notifying the Customer. Unless the Customer objects to the updated Terms & Conditions within 30 days of notification, it will be bound by the updated Terms & Conditions.

3. LICENCE

3.1 In consideration of payment of the Annual Licence Fee(s) covering the period of the Minimum Term, Doctors Appraisal shall grant to the Customer a non-exclusive licence to Use the Software from the Contract Date until expiry of the Minimum Term. In consideration of payment of each subsequent Annual Licence Fee, Doctors Appraisal shall grant to the Customer a non-exclusive licence to Use the Software for 12 months (from the relevant anniversary of the Annual Start Date until the subsequent anniversary of the Annual Start Date).

4. SERVICES

4.1 In consideration of payment of each Annual Support Fee, from the Contract Date and for the duration of this Contract Doctors Appraisal shall use its reasonable endeavours to provide the Hosted Service, Maintenance, and Support.
4.2 Doctors Appraisal shall be entitled to provide Maintenance either: (i) by providing ten days’ written notice to the Customer (or such other period as the parties may agree from time to time); or (ii) between 23:00 and 08:00 on any day or at any time on a Sunday. Doctors Appraisal shall use its reasonable endeavours to ensure that, during the provision of Maintenance, the Software will be unavailable for no more than 14 days in any calendar year.
4.3 Support is made available: (i) 09:00 – 17:00, Monday to Friday, excluding public holidays in England (“Working Hours”) by telephone, email, or by completing and submitting an internet based form via the web; or (ii) outside Working Hours by (a) leaving a voice mail message; or (b) completing and submitting an internet based form via the web; in which case details of the problem will be logged into the system at 09:00 the next working day.
4.4 Doctors Appraisal shall use its reasonable endeavours to provide training to the Customer as specified in the Order Form.

5. RESPONSIBILITIES

5.1 Doctors Appraisal shall undertake all services provided pursuant to this Contract using reasonable care and skill.
5.2 Doctors Appraisal shall check all software that it provides to the Customer under this Contract with an up-to-date virus checker immediately prior to hosting of such software to the Customer.
5.3 The Customer shall: (a) make reasonable efforts to understand and implement any working practice changes required to make successful use of the Software; (b) ensure that the Software is used properly by the Users.
5.4 The Customer is responsible for procuring, maintaining, and updating its hardware, software, telecommunications, and internet environment.

6. PAYMENT

6.1 The Customer shall pay the Annual Fee annually in advance (or, if the Customer requests, covering multiple years within the Minimum Term) with effect from the Annual Start Date and for the duration of this Contract.
6.2 Doctors Appraisal shall be entitled to submit an invoice for the Fees when they become payable and the Customer must pay Doctors Appraisal’s invoices no later than 30 days after receipt.
6.3 All Fees payable by the Customer to Doctors Appraisal under this Contract are payable in Pounds Sterling and are exclusive of any tax, levy or similar governmental charge, including value added or sales tax, that may be assessed by any jurisdiction, except for income, net worth or franchise taxes on Doctors Appraisal.
6.4 All Fees shall increase on each anniversary of the Annual Start Date by an amount, as notified by Doctors Appraisal, that does not exceed the rate of change in the Retail Price Index (for all items) as published by the Office for National Statistics plus two per cent, measured between the date of review and the last review date (or in the event of the first review date, the Annual Start Date), provided that no Fee increase shall take place in respect of any prepaid period (for example, if the Customer agrees a five year Minimum Term and agrees to pay the first three Annual Fees on the first Annual Start Date, no Fee increase shall take place over this three year period).
6.5 If any sum payable under this Contract is not paid within 30 days after the due date, then (without prejudice to Doctors Appraisal’s other rights and remedies) Doctors Appraisal reserves the right to charge interest on that sum on a daily compounded basis at the annual rate of 10% measured from the due date to the date of payment.

7. TERM AND TERMINATION

7.1 This Contract shall commence on the Contract Date and shall continue unless and until terminated by either party in accordance with this Clause 7. Either party shall be entitled to terminate this Contract upon the first day of expiry of the Minimum Term or any anniversary thereafter by giving to the other party not less than 30 days’ prior written notice.
7.2 The Customer shall be entitled to terminate the provision of the Hosted Service, Maintenance, and Support by giving written notice to Doctors Appraisal. Such termination shall take effect on the Annual Start Date that follows the date of such termination notice, and from that date the Annual Fee shall be reduced to reflect only the Annual Licence Fee and not the Annual Support Fee. Doctors Appraisal shall, on the Customer’s request and at Doctors Appraisal’s standard daily rates, provide reasonable assistance with the migration of any Customer data to the Customer’s IT systems.
7.3 Either party shall be entitled to terminate either this Contract immediately if that other party: (a) commits any material breach of its duties and fails to remedy that breach within 30 days of written notice of that breach; or (b) has a winding up petition presented or enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of amalgamation or reconstruction without insolvency) or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over any of its assets, or a court or arbitrator with authority to so determine, determines that the debtor is unable to pay its debts.

8. CONSEQUENCES OF TERMINATION

8.1 On termination of this Contract howsoever caused: (a) the rights and duties created by Clauses 6, 9, 11, 12.2, and 15 and any perpetual licences arising under Clause 12.3 shall survive; (b) the rights of either party which arose on or before termination shall be unaffected; and (c) Doctors Appraisal shall, on the Customer’s request and at Doctors Appraisal’s standard daily rates, provide reasonable assistance with the migration of any Customer data to the Customer’s IT systems.

9. CONFIDENTIAL INFORMATION

9.1 Each party that receives (“Receiving Party”) non-public business or financial information (“Confidential Information”) from the other (“Disclosing Party”) whether before or after the date of this Contract shall: (a) keep the Confidential Information confidential; (b) not disclose the Confidential Information to any other person other than with the prior written consent of the Disclosing Party or in accordance with Clauses 9.2, or 9.3; and (c) not use the Confidential Information for any purpose other than the performance of its obligations or the enjoyment of its rights under this Contract (“Permitted Purpose”).
9.2 The Receiving Party may disclose Confidential Information to its own officers, directors, employees and advisers who reasonably need to know for the Permitted Purpose (each a “Permitted Third Party”), provided that the Receiving Party shall remain liable to the Disclosing Party for the acts, omissions, and compliance with the terms of this Clause 9.2 of such Permitted Third Party as if such Permitted Third Party was the Receiving Party (and a party to this Contract). The Receiving Party shall ensure that each Permitted Third Party is made aware of and complies with all the Receiving Party’s obligations of confidentiality under this Clause 9.2.
9.3 If required by law, the Receiving Party may disclose Confidential Information to a court or regulatory authority or agency, provided that the Receiving Party shall (if legally permissible) provide reasonable advance notice to the Disclosing Party and co-operate with any attempt by the Disclosing Party to obtain an order for providing for the confidentiality of such information.

10. DATA AND DATA PROTECTION

10.1 Doctors Appraisal shall not own (or claim ownership rights in respect of) data uploaded (to Doctors Appraisal) using the Software by Users (“User Data”).
10.2 The Customer shall procure that all Users shall share (and give Doctors Appraisal permission to share) User Data with third parties authorised (whether by the User or by any organisation that is licensed to use the Software) to appraise, revalidate, review, and/or assess the user and/or the User Data. Permission granted pursuant to this Clause 10.2 shall be irrevocable and for the duration of this Contract.
10.3 The Customer warrants that Users are lawfully entitled to upload User Data and that the content of User Data shall not be defamatory or offensive.
10.4 In relation to any Personal Data provided by the Customer to Doctors Appraisal pursuant to this Agreement, the parties agree that the Customer and/or the User is the Data Controller and Doctors Appraisal is the Data Processor, and Doctors Appraisal shall:
(i) keep the Personal Data secure and take technical and organisational measures to ensure the continued security of the Personal Data;
(ii) notify the Customer if it receives: (a) a request from a Data Subject to have access to that person’s Personal Data; or (b) a complaint or request relating to the Customer’s (or User’s) obligations under the Data Protection Legislation;
(iii) assist the Customer in relation to any subject access request, provided the Customer shall be responsible for Doctors Appraisal’s costs in respect of such assistance, such costs capped at any applicable limit that is imposed by the Data Protection Legislation; and
(iv) not Process Personal Data outside the European Economic Area.
10.5 For the purposes of this Clause 10, “Data Protection Legislation” means the Data Protection Act 1998, the Privacy and Electronic Communications Regulations 2003 and any related act or regulation in the UK, including statutory modification or re-enactment of it, and “Data Controller”, “Data Subject”, “Personal Data”, “Data Processor”, and “Process” shall have the meaning specified in the Data Protection Act 1998 (as amended).

11. LIABILITY

11.1 Neither party shall exclude or limit its liability for: (a) death or personal injury caused by its negligence; and / or (b) fraudulent misrepresentation.
11.2 Doctors Appraisal shall not be liable to the Customer for any loss of profit, loss of revenue, loss of anticipated savings, and/or loss of goodwill. The Customer must ensure that Users make regular back-ups of the User Data. Doctors Appraisal shall not be liable for loss of data to the extent that any User has failed to make regular back-ups in line with best practice.
11.3 The Customer agrees that it will have no remedy in respect of any untrue statement made to it upon which it relied in entering into this Contract and that its only remedies can be for breach of contract (unless the statement was made fraudulently).
11.4 In the event that Doctors Appraisal fails to provide the Hosted Service, Support, and/or Maintenance in accordance with this Contract, Doctors Appraisal shall refund the Annual Support Fee in the year in which the failure arose. In no circumstances shall such a failure
give rise to any refund of the Annual Licence Fee. The Annual Licence Fee is non-refundable, except in the event of Doctors Appraisal’s breach of Clause 2.4.
11.5 Doctors Appraisal’s Contractual Liability to the Customer shall not exceed fifty thousand Pounds (£50,000) minus any refund paid by Doctors Appraisal to the Customer pursuant to Clause 11.4. “Contractual Liability” means liability howsoever arising under or in relation to the subject matter of this Contract that is not: (a) unlimited by virtue of Clause 11.1; (b) excluded pursuant to Clauses 11.2 and 11.3.
11.6 Doctors Appraisal hereby excludes any implied condition or warranty concerning the merchantability, quality or fitness for purpose of the Software and any services supplied pursuant to this Contract, whether such condition or warranty is implied by statute or common law.

12. BUSINESS CONTINUITY

12.1 For the duration of the Contract, Doctors Appraisal shall make the Software freely available from Doctors Appraisal’s website for the Customer to download on request. Doctors Appraisal grants to the Customer a non-exclusive licence to deploy the Software onto a web-server in order to enable Use of the Software in accordance with Clause 3.1. The Customer accepts technical responsibility for such deployment. The Customer should download the Software as part of its risk mitigation strategy and / or if it terminates (or intends to terminate) the Hosted Service, Maintenance, and Support in accordance with Clause 7.2.
12.2 The Customer acknowledges that the downloaded Software (and any code that may be accessible from de-compilation of it) is and shall always be the confidential information of Doctors Appraisal and as such subject to the provisions of Clause 9.
12.3 In the event that during the term of this Contract Doctors Appraisal ceases trading by reason of insolvency, the licences granted pursuant to Clause 3.1 shall cease to be limited in duration and shall become perpetual (and shall survive termination of this Contract).

13. ASSIGNMENT AND SUBCONTRACTING

13.1 The Customer shall not assign or otherwise transfer this Contract or any of its rights and duties hereunder whether in whole or in part without the prior written consent of Doctors Appraisal.
13.2 Doctors Appraisal shall not be entitled to assign or otherwise transfer this Contract or any of its rights and duties hereunder whether in whole or in part without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, provided that, upon notification to the Customer, Doctors Appraisal shall be freely entitled to assign this Contract to any company that is directly or indirectly controlled by any parent company of Doctors Appraisal.
13.3 Subject to the foregoing, the rights and liabilities of the parties hereto are binding on, and shall inure to the benefit of, the parties and their respective successors and permitted assigns.

14. CHANGES

14.1 No changes to this Contract shall be valid unless made in writing and signed by the authorised representatives of both parties.

15. GENERAL PROVISIONS

15.1 Intellectual Property. Doctors Appraisal owns all copyrights (including copyright in computer software), database rights, rights in inventions, patent applications, patents, trade marks, trade names, know-how, service marks, design rights (whether registered or unregistered), trade secrets, rights in confidential information and all other industrial or intellectual property rights of whatever nature (“Intellectual Property Rights”) in the Software and any deliverables provided pursuant to this Contract.
15.2 Publicity. The Customer hereby irrevocably consents to Doctors Appraisal referring to the Customer as a client of Doctors Appraisal in Doctors Appraisal’s sales and marketing literature (including its web site).
15.3 Third Party Rights. The parties hereby exclude to the fullest extent permitted by law any rights of third parties to enforce or rely upon any of the provisions of this Contract.
15.4 Force Majeure. Neither party shall be liable for any delay or failure in performing its duties under this Contract caused by any circumstances beyond its reasonable control. Without limitation, the following shall be regarded as causes beyond either party’s reasonable control: (a) act of God, explosion, flood, tempest, fire or accident; (b) unusual atmospheric conditions and unusual conditions in outer space which may affect signals to and from and the workings of satellites; (c) war or threat of war, sabotage, insurrection, civil disturbance or requisition; (d) acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental agency or local authority; (e) import or export regulations or embargoes.
15.5 Entire Agreement. This Contract supersedes any prior contracts, arrangements and undertakings between the parties in relation to its subject matter and constitutes the entire contract between the parties relating to that subject matter.
15.6 Severance. If any part of this Contract is held unlawful or unenforceable that part shall be struck out and the remainder of this Contract shall remain in effect.
15.7 No Waiver. No delay, neglect or forbearance by either party in enforcing its rights under this Contract shall be a waiver of or prejudice those rights.  
15.8 No Bribery. Each party warrants to the other that it: (i) has not and will not commit an offence under the Bribery Act 2010 in relation to this Contract or any other contract between the parties; and (ii) has adequate procedures (as defined in section 7(2) of that Act) in place to prevent its associated persons from committing an offence under that Act.
15.9 Notices. All notices under this Contract shall be in writing and shall be sent to the address of the recipient set out in this Contract or to such other address as the recipient may have notified from time to time or, as specified below, by publication on Doctors Appraisal’s website. Any notice may be delivered personally (deemed served when delivered), by a reputable courier service (deemed served 48 hours after delivery), by email (deemed served immediately), or in respect of notice under Clauses 2.5 or 13.2 by update to the website www.Doctors appraisal.com/ (deemed served 14 days after publication).
15.10 Law and Jurisdiction. This Contract is governed by the laws of England and subject to the exclusive jurisdiction of the courts of England and Wales.

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