1. Interpretation

1.1  Words shall have the following meanings:

• Agreement – means these Terms
• Fee – means the Software Fee, Services Fee and/or any other agreed fees identified and payable by the Customer to AIT Medihelp;
• Intellectual Property Rights – means all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights, rights in data and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world;
• Secure Network – means a network only accessible to Authorised Users whose identities are authenticated by the Customer (and AIT Medihelp if it so requires at its option) at the time of login.
• AIT Medihelp (we, us or our)
• Customer (you, your)

1.2  The headings in this Agreement do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to the clauses and schedules of this Agreement.

1.3 Unless the context otherwise requires:

    1.3.1     references to AIT Medihelp, the Customer and Authorised User include their permitted successors and assigns;

    1.3.2     references to statutory provisions include those statutory provisions as amended or re-enacted; and

    1.3.3     references to any gender include all genders.

1.4 Words in the singular include the plural and in the plural include the singular.

 

2. Licence & Term

2.1  In consideration of the applicable Fees paid by the Customer to AIT Medihelp, we grant to the Customer a non-exclusive, non-transferable licence for each Authorised User to use the Software for the applicable Licence Period in accordance with clause 3 below.

2.2 On completion of any course, Authorised Users will retain access for 6 months, after which time their account will be automatically de-activated.

2.3 Licences are for a single use. Authorised Users who need to retake the same course will incur the applicable licence fee.

 

3. Use of the Software

3.1     You shall ensure that use of the Software is restricted to Authorised Users employed by Authorised Organisations. During the term of this Agreement you shall only permit use of the Software for the purpose of providing education and training for Authorised Users via a Secure Network. This includes allowing Authorised Users to print selected portions of web content accessible to them when using the Software for their personal use but not for wider distribution.

3.2     You shall not, and shall ensure that the Authorised Users or Authorised Organisations whom it permits to use the Software do not, sell, resell, redistribute, publish or otherwise make the Software available (including without limitation any content it contains or displays) in any manner or any media to anyone else.

3.3     You may not use the Software other than as expressly specified in this Agreement without the prior written consent of us in its sole discretion and you acknowledge that additional fees may be payable on any change of use approved by us.

3.4     You have no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by you, or as otherwise expressly permitted by applicable law. You have no right to use any Software source code.

3.5     In relation to assignment and sub-licensing:

    3.5.1     You have no right to sub-license or to assign the benefit or burden of this licence in whole or in part and by novation or otherwise, or to allow the Software to become the subject of any charge, lien or encumbrance without the prior written consent of AIT Medihelp.

    3.5.2     We may sub-license, assign, charge or otherwise transfer any of its rights or obligations under this Agreement, provided it gives written notice to you of any sub-licence, assignment, charge or other transfer. You shall at your own expense on request from us do all things and execute all documents as reasonably required by us to give effect to the foregoing.

    3.5.3     You shall provide AIT Medihelp with monthly reports detailing the number of Authorised Users and any other information concerning this Agreement reasonably requested by us. We shall provide a certificate of completion to each Authorised User that in our sole opinion satisfactorily meets the criteria for completing the e- learning course.

You shall: 

3.5.4     not permit more than the permitted number of Authorised Users to access the Software in total;

3.5.5     prevent sharing of login details; and

3.5.6     keep proper and accurate records of Authorised Users and Authorised Organisations and permit us to inspect and have access to such records and any other records kept pursuant to this Agreement and to the computer equipment (including that of any third party) on which the Software is being kept or used, for the purposes of ensuring that the Customer is complying with the terms of this Agreement, provided that we give seven days written notice to you of such inspections, which shall take place at reasonable times.

3.6     In order to operate satisfactorily the Software must be used with SCORM 1.2. or 2004 (industry standard) We shall notify you of, and you shall at your own expense meet, any other minimum system requirements or technical requirements.

 

4. Fees

4.1     You shall pay to us the Fees (including expenses) as set out in the order confirmation plus any applicable VAT at the prevailing rate. All sums payable under this Agreement are exclusive of VAT, for which you shall be responsible for paying.

4.2     If you fail to pay any amount payable by it under this Agreement, we shall be entitled to charge you interest on the overdue amount, payable by you forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate provided for under the Late Payment of Commercial Debts (Interest) Act 1998, as amended by the Late Payment of Commercial Debts Regulations 2013. Without limitation to its other rights and remedies, if we do not receive payment when due we may restrict or terminate access to the Software in its sole discretion.

 

5. Computer Misuse Act

You agree (and shall ensure that the Authorised Users and Authorised Organisations agree and consent) that the Software may contain mechanisms for creating records of access made to the Software and the login details of users for security purposes and for monitoring usage and fraud (including access by more that the authorised number of Authorised Users) and that such mechanisms will create records within the host environment accessible to AIT Medihelp upon audit.

 

6. Warranties and Limits of Liability

6.1     We warrant that the Software will function reasonably satisfactorily for a period of 90 days after the Commencement Date. If you notify us in writing of any defect or fault in the Software in consequence of which it fails to function satisfactorily, and such defect or fault does not result from you, or anyone acting with the authority of you, having amended the Software or used it outside the terms of this Agreement or its technical specifications, or for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by AIT Medihelp, we may, at our option, do one of the following:

    6.1.1     repair the Software; or

    6.1.2     replace the Software; or

    6.1.3     terminate this Agreement immediately by notice in writing to you and refund any of the Software Fee paid by you as at the date of termination (less a reasonable sum in respect of your use of the Software to the date of termination) on return of the Software and all copies thereof, provided you provide all the information that may be necessary to assist us in resolving the defect or fault, including sufficient information to enable us to re-create the defect or fault.

6.2     We do not warrant that the use of the Software will be uninterrupted or error-free.

6.3     You accept sole responsibility for the selection of the Software and/or Services to achieve its intended results. You are responsible for ensuring that your own software and systems and internet connections are compatible for use with the Software unless otherwise agreed.

6.4     We have no reason to believe that there are any inaccuracies or defects in the information contained in the Software, however we make no representation and give no warranty as to the accuracy of the information contained in the Software and accepts no liability for loss suffered or incurred by you or Authorised Users or anyone else as a result of their direct or indirect reliance on information contained in the Software. We shall have no liability for indirect or consequential loss or damage however arising as a result of this Agreement.

6.5     We warrant that it is entitled to enter this Agreement and will provide any Services under this Agreement with reasonable care and skill. All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose.

6.6     Except as expressly stated in clause 6.7:

    6.6.1     We shall have no liability for any losses or damages which may be suffered by you (or any person claiming under or through you including without limitation any Authorised User or Authorised Organisation), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract,tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

(a)     special damage even though we were aware of the circumstances in which such special damage could arise;

(b)     loss of profits;

(c)     loss of anticipated savings;

(d)     loss of business opportunity;

(e)     loss of goodwill;

(f)     loss of data; provided that this clause 6.6.1 shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of this clause or any other claims for direct financial loss that are not excluded by any of categories (a) to (f) inclusive of this clause 6.6.1;

    6.6.2     subject to clause 6.7, the total liability of AIT Medihelp for any and all claims, damage, loss, costs or expenses, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed a sum equal to the aggregate Fees payable to us under this Agreement; and

 6.6.3     you agree that, in entering into this Agreement, either it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this Agreement or (if it did rely on any representations, whether written or oral, not expressly set out in this Agreement) that it shall have no remedy in respect of such representations and (in either case) AIT Medihelp shall have no liability otherwise than pursuant to the express terms of this Agreement.

6.7     The exclusions in clause 6.6 shall apply to the fullest extent permissible at law, but we do not exclude liability for death or personal injury caused by the negligence of AIT Medihelp, its officers, employees, contractors or agents; for fraud or fraudulent misrepresentation; for breach of the obligations implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982 which cannot be excluded by law; or for any other liability which may not be excluded by law.

 

7  . Intellectual Property rights

7.1     You acknowledge that all Intellectual Property Rights in the Software (including without limitation any e-learning materials contained within or accessible using the Software) belong and shall belong to AIT Medihelp. You shall have no rights in or to the Software other than the right to use it in accordance with the terms of this Agreement. In particular, all Intellectual Property Rights in data acquired by or on behalf of AIT Medihelp relating to use of the Software (such as learner data and results gathered concerning use of online materials) shall belong exclusively to us.

7.2     We undertake at our own expense to defend you or, at its option, settle any claim or action brought against you alleging that the possession, or use of the Software (or any part thereof) in accordance with the terms of this Agreement infringes the UK Intellectual Property Rights of a third party (Infringement Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the you as a result of or in connection with any such Infringement Claim. For the avoidance of doubt, clause 7.2 shall not apply where the Infringement Claim in question is attributable to possession, use, development, modification or maintenance of the Software (or any part thereof) by you other than in accordance with the terms of this Agreement.

7.3     Clause 7.2 is conditional on:

    7.3.1     you notifying us in writing, as soon as reasonably practicable, of any Infringement Claim of which it has notice;

    7.3.2     you not making any admission as to liability or compromise or agreeing to any settlement of any Infringement Claim without the prior written consent of AIT Medihelp, which consent shall not be unreasonably withheld or delayed; and

    7.3.3     AIT Medihelp having, at its own expense, the conduct of or the right to settle all negotiations and litigation arising from any Infringement Claim and you giving us all reasonable assistance in connection with those negotiations and such litigation at our request and expense.

7.4     If any Infringement Claim is made, or in our reasonable opinion is likely to be made, against you, we may at our sole option and expense:

    7.4.1     procure for you the right to continue using the Software (or any part thereof) in accordance with the terms of this Agreement; or

    7.4.2     modify the Software so that it ceases to be infringing; or

    7.4.3     replace the Software with non-infringing software; or

    7.4.4     terminate this Agreement immediately by notice in writing to you and refund any of the Fee paid by you as at the date of termination (less a reasonable sum in respect of your use of the Software to the date of termination) on return of the Software and all copies thereof,

provided that if we modify or replace the Software, the modified or replacement Software must comply with the warranties contained in clause 6.1 and you shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this Agreement been references to the date on which such modification or replacement was made.

 

8. Termination

8.1     Either party may terminate this Agreement at any time on written notice to the other if the other is in material breach of any of the terms of this Agreement and either that breach is incapable of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring it to remedy that breach.

8.2     Termination by either party in accordance with the rights contained in clause 8 shall be without prejudice to any other rights or remedies of that party accrued prior to termination.

8.3     On termination for any reason including expiry of the Agreement term:

    8.3.1     all rights granted to you under this Agreement shall cease;

    8.3.2     you shall cease all activities authorised by this Agreement;

    8.3.3     you shall immediately pay to us any sums due to us under this Agreement; and

    8.3.4     you shall immediately delete from its systems and procure the deletion from the systems of any sublicensees and return to us all other copies of the Software then in its possession, custody or control and, at our request a responsible officer of the Customer shall certify to us, in terms reasonably required by us, that it has done so.

 

9. Force Majeure

No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion or civil commotion. For the avoidance of doubt, nothing in clause 9 shall excuse you from any payment obligations under this Agreement or from liability for any act or omission of any of its sub-contractors or sub-licensees which put you in breach of this Agreement.

 

10. Confidentiality and Publicity

10.1     Each party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any Authorised Users, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or subsequently comes lawfully into the possession of such party from a third party.

10.2     The terms of this Agreement are confidential and may not be disclosed by you without our prior written consent.

10.3     The provisions of clause 10 shall remain in full force and effect notwithstanding termination of this Agreement for any reason.

 

11. Waiver

No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

 

12. Severability

If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.

 

13.  Amendments

Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.

 

14. Third Party rights

No term of this Agreement is intended to be enforceable by any person who is not a party to this Agreement. For the avoidance of doubt the Customer agrees that it shall be liable for any act or omission of its sub-licensees which put it in breach of this Agreement.

 

15. Notices

Any notice required to be given pursuant to this Agreement shall be in writing, and shall be sent to the other party at the address set out for such party in this Agreement. Notices shall be sent by first-class mail. Correctly addressed notices sent by first-class mail shall be deemed to have been delivered 72 hours after posting.

 

16. Entire Agreement

This Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.

 

17. Governing Law & Jurisdiction

This Agreement, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the exclusive jurisdiction of the English courts.