WHEREAS
(1) Ardens is the owner of intellectual property rights in the items listed in clause 7 hereto, and as updated from time to time (”Intellectual Property”) which are included within a collection of SystmOne templates enabling data viewing and entry and reporting of health care data (“the System”) .
(2) The User wishes to use the System.
(3) Payment for such use, and the corresponding paid-for obligations on Ardens to maintain, upgrade and support the System are not dealt with in this agreement, but may be the subject of a separate agreement, whose terms shall, unless otherwise stated, prevail over the terms of this Agreement.
NOW IT IS AGREED THAT:
Grant of licence
1. In consideration of the mutual obligations contained herein (and in particular but without prejudice, to the indemnity in clause 4 below given by the User to Ardens, Ardens grants to The User a non-exclusive, non-transferable licence to use the System.
Warranties
2. Ardens warrants that:
(i) the System is reasonably fit for its purpose of displaying data entry and data viewing screens for SystmOne, generating reports, documents and emails from SystmOne, but always on the assumption that SystmOne is performing as it needs to in order to support the System;
(ii) where information is displayed to The User by the System which also gives the source document(s) from which that information is derived, the information reasonably reflects the contents of the source document(s); but subject always to the overriding duty of The User to exercise reasonable care in clinical matters, which may require The User to check the source document(s). Any obligation to provide updates to the System in the light of updates to source documents are not the subject of this agreement, but may be the subject of a separate agreement, if any.
3. No warranty is given by Ardens:
(i) that SystmOne will continue to perform as it needs to in order to support the System, and further that the functionality of SystmOne will not change, thereby potentially impeding or preventing the operation of the System in the future;
(ii) that information which the System invites to be input is relevant and complete, either in respect of any particular patient’s condition, or as to any business aspect of the GP Surgery; nor that any output from the System is relevant and complete in relation to such matters; nor that any source document relied upon by the System is correct and relevant;
(iii) that GP Surgery IT systems and internet connections will perform as they need to in order to support the System, nor that emails and other communications sent by the System will inevitably be received by the recipient, nor that the SystmOne server is always accessible to the GP Surgery via the internet.
(iv) that SystmOne is itself suitable for recording and processing patient data and/or complies with data protection legislation;
(v) which relieves, in whole or in part, The User of any aspect of his or her duty to the patient, which may include exercising independent clinical judgment, checking that communications from System have been received in a timely fashion by the intended recipient thereof and obtaining the necessary consents from the patient for the purposes of processing the patient’s personal data using SystmOne.
Indemnity
4. The User indemnifies Ardens in respect of any liability or alleged liability of Ardens arising out of or in connection with the use of the System.
Termination
5. This agreement shall terminate immediately upon:
(i) termination of any prevailing separate agreement;
(ii) The User may terminate this agreement at any stage but Ardens will not offer any refunds on payments that have already been made.
(iii) any material change to the role or responsibilities of The User, including the reorganisation or amalgamation into a different corporate structure.
(iv) notice in writing by either party in the event of a material breach by the other party.
Effect of Termination
6. Upon termination of this agreement:
(i) The licence granted in clause 1 shall terminate.
(ii) all obligations owed by either party to the other under this agreement shall cease, save that (a) the indemnity in clause 4 shall continue; and (b) the obligation of confidentiality in clause 9 below shall continue.
(iii) Ardens are unable to offer any refunds once a payment has been made for any of the Ardens packages.
Intellectual Property Rights
7. “Intellectual Property” is defined herein as
(a) copyright in:
(i) Each compilation of items of textual information and data input fields contained within each template comprised within the System, and/or within each tabbed pane contained within the template, the compilation comprising the selection and ordering of items of textual information and data input fields, and the said items of textual information and data input fields including labelled text fields and drop down selection boxes.
The compilation comprising the selection and ordering of blocks of information into tabbed panes within each template; and within each report generated by the System.
(ii) The compilation comprising the selection and ordering of templates within the System.
(iii) Compilations comprising the selection of default Read codes applicable to particular conditions or treatments.
(iv) Graphical user interfaces comprising each tabbed pane, each view, and the combinations and hierarchies of views which make up the System;
(v) Graphic works comprised within the templates.
(b) copyright and database rights in:
(i) Default address books supplied with the System.
(ii) Default Read codes supplied with the System.
8. The Intellectual Property shall remain vested in Arden’s. Insofar as the System is updated, whether by incorporation of information supplied by The Users or otherwise, the Intellectual Property of the System as updated shall vest or remain vested in Ardens.
Confidentiality
9. The User shall keep the System confidential and will not use or disclose to any person firm or company any information as to the content of screens or reports therein, or procure enable or assist any other person to do so, save as may be necessary for the operation of this agreement.
General
10. Neither The User nor Ardens shall be liable for any loss or damage arising from a failure on their respective parts to perform any obligation under this Agreement where such failure arises solely due to causes beyond their respective control.
11. Nothing in this Agreement shall create or be deemed to create a partnership or the relationship of principal and agent, or any fiduciary duty, or any duty of good faith.
12. If in any exceptional circumstances Ardens ceases to exist and can no longer provide its services to its users, the user may copy and continue to use all existing templates and resources. However, the user will then be responsible for all the content. The user will also need to keep this content up to date and clinically governed to insure clinical safety is maintained.
13. Ardens will not have access to any confidential patient data unless separately and specifically agreed in writing with The User. If this occurs, Ardens will handle all confidential data in accordance with the appropriate information governance procedures.
14. Any feedback and comments made by The User may be used by Ardens for marketing purposes but will be anonymised.
15. Neither this Agreement, nor the Licence granted by this Agreement, may be assigned by The User to any third party.
16. If any term condition or other provision of this Agreement is held to be invalid void or unenforceable or to render this Agreement or any part of it void or unenforceable then that provision shall be severable from the remaining terms conditions and provisions of this Agreement which will continue in force and be construed as if such provision had never been contained in the Agreement.
17. This Agreement supersedes all previous agreements and understandings made between The User and Ardens in relation to the System and embodies the entire agreement of the parties (save where supplemented by a Framework Agreement). In particular no statement representation or warranty made by either party (whether before or after the signing of this Agreement and whether such statement representation or warranty induced either part to enter this Agreement) shall be effective or enforceable or give rise to any legal remedy unless it is repeated in this Agreement. Provided that nothing in this clause shall serve to exclude the liability of either party in respect of any fraudulent pre-contractual statement or misrepresentation.
18. For the ‘Refer a Friend’ scheme, up to a maximum of 5 practices can be referred per applicant. This must occur before Ardens have had direct contact with them.
19. Ardens will provide Users help, support, feedback and request mechanisms via; online contact forms, email or via phoning the helpdesk Monday-Friday 8.30-18.30 (excluding bank holidays). Contact details can be found on our Support Desk.
20. If any feedback or a request is deemed clinically urgent by Ardens, an initial response will be made within 4 hours and a fix will be made within 8 hours (excluding issues which are outside of Ardens control). For all other feedback and requests, a result will be delivered within 1-4weeks, depending upon the volume of work required.
21. The User is responsible for notifying Ardens of any changes to local referral forms, local contracts or other local content, in order that Ardens can keep local content accurate and up to date.
22. Any localisation is done to a CCG level. Please note that this does not include localisation of practice specific in-house documents, letters, pathways, formularies and other items.
23. The User allows any local content or resources that are added to Ardens to be used by all other Ardens Users. All content is held on Microsoft OneDrive and should be in a ‘View Only’ format. The content should not contain any patient identifiable data and it is the Users responsibility to ensure that the correct information governance is followed. Ardens holds no responsibility for the content of these documents and is not responsible for any content held or lost.
24. All clinical guidance on Ardens, including all NICE guidance, is accurate at the time it was published. Please see the Clinical Governance Policy for further details.
25. The user must not copy or upload any Ardens templates or resources to the Resources Library on SystmOne or any other sharing platform.
26. Ardens holds no responsibility for content that is copied, shared with a third party or uploaded to the Resource Library or a central platform for others to access. Only licensed users using original Ardens templates and resources will be covered by Ardens clinical governance and insurance.
27. Ardens has a UK Open Content Licence to use National Institute for Health and Care Excellence Guidance, available from NICE. NICE guidance is prepared for the National Health Service in England, and is subject to regular review and may be updated or withdrawn. NICE has not checked the use of its content by Ardens to confirm that it accurately reflects the NICE publication from which it is taken.
28. The medication protocols, alerts and reports are intended only as an aid to clinical judgement when a patient is stable on their medication. The patient may require more frequent monitoring when starting a medication, changing doses, altering other medications that they take and if disease remission or relapse occurs. The test result threshold ranges are only intended for use as a guide and interpretation of any results remains the responsibility of the User at all times.
29. This agreement shall be governed by and construed according to the laws of England and Wales and the parties submit to the jurisdiction of the Courts of England and Wales.
30. The User is reponsible for understanding how their data and their organisations data is used and process, as per our Privacy Policy
Join Me – Screen Sharing Solution
31. Screen sharing between Ardens may be used with the consent of The User for trouble-shooting reports, investigating payment & coding issues and to provide training & education.
32. Screen sharing can only be instigated by The User.
33. The User agrees to use JoinMe for screen sharing and agrees with the Join.Me security policy.
34. Ardens will be IG Toolkit Compliant to ensure data privacy and security at all times.
35. Ardens will only perform screen sharing in the Ardens Support Office. The computer monitors in the Ardens Support Office are only accessible by Ardens staff all of whom have up-to-date DBS checks and follow strict codes of conduct.
36. Ardens will not collect, copy, record, share or store any data during a screen sharing session.
Beta Products
Beta Licence
37. Ardens may wish to test and evaluate new beta product before including it as the main part of the System.
38. Users may become a Beta Licensed Users and Sites by separately signing up their organisation to Beta Products
39. Ardens grants to the Beta user a non-exclusive, non-transferable, revocable, royalty-free licence to use the Beta product for the Beta testing period for the sole purpose of the evaluation of the Beta Product in accordance with the terms of this Agreement.
40. The Beta testing period shall be defined by Ardens and can be shortened or extended as Ardens see fit.
41. Either party may terminate this Beta Licence for convenience on giving no less than 5 Business Days’ written notice to the other party.
42. Either party may terminate this Beta Licence immediately and without notice where the other party commits a material breach of its obligations hereunder, which breach is irremediable or (if remediable) where the breaching party fails to remedy it within a period of 10 Business Days after being notified in writing to do so.
43. Ardens does not warrant that the fitness and accuracy of the Beta product or that its use will be uninterrupted or error free.
44. Ardens shall;
(i) provide the new Beta product to the Beta user for feedback and evaluation purposes
(ii) use commercially reasonable endeavours to make the Beta product available 24 hours a day, seven days a week.
(iii) make all Beta user data available for download in a commonly-available electronic format during the term of the Agreement for a period of 10 Business Days, after which Ardens shall be free to delete it.
(iv) provide support and training with respect to the Beta product Monday to Friday 8.30am-6.30pm (excluding bank holidays).
45. Beta Users shall;
(i) provide reasonable feedback to Ardens concerning the features and functionality of the Software. They shall also submit feedback forms containing accurate, complete information as may be requested by Ardens with respect to the functionality of the Beta product. All such feedback will be the sole and exclusive property of Ardens.
(ii) co-operate in a timely manner with any reasonable request made by Ardens with respect to the Beta product;
46. The Beta Users acknowledges and agrees that:
(i) the purpose of using the Beta product is for testing and evaluating new functionality
(ii) the Beta product is not an Ardens product which is ready for commercial release for sale by Ardens;
(iii) the Beta product may not operate properly, be in final form or fully functional and may contain errors, design flaws or other defects;
(iv) that all other clauses in this agreement apply to both beta and full products
(v) it may not be possible to make the Beta product fully functional, and Ardens may abandon its development at any time and without any obligation or liability to the Beta user/ Ardens is under no obligation to release a commercial version of the Software. Ardens is under no obligation to release a commercial version of the Software.
(vi) the information obtained using the Beta product may not be accurate and may not accurately correspond to information extracted from any database or other data source;
(vii) use of the Beta product may result in unexpected results, loss of data or communications, project delays or other unforeseen losses or delays.
(viii) they shall not rely or depend on the Beta functionality for any reason and is solely responsible for maintaining and protecting all data and information that is retrieved, extracted, transformed, loaded, stored or otherwise processed by the Beta product.
(ix) they shall be responsible for all costs and expenses required to backup and restore any data and information that is lost or corrupted as a result of its use of the Beta product.
47. Ardens has the right unilaterally to abandon development of the Software, at any time and without any obligation or liability to User.
48. The User irrevocably transfers and assigns to Ardens and agrees to irrevocably assign and transfer to Ardens all of User’s right, title, and interest in and to all feedback including all intellectual property rights therein (collectively, “Intellectual Property Rights”).
49. User will not earn or acquire any rights or licences in the Software or in any of Arden’s Intellectual Property Rights on account of this Agreement or User’s performance under this Agreement, even if Ardens incorporates any feedback into the Software.
Viruses, Bugs and Malware
50. A virus can be defined as anything or device (including any software, code, file or programme) which may:
(i) 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;
(ii) 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 rearranging, 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.
51. Ardens warrants that it regularly scans the Ardens Manager products using up-to-date virus scanning and malware detection programmes, however does not warrant that the Beta product will be and remain 100% free of Viruses during the Beta Test Period.
