Pharmacy Terms and Conditions

PHARMAPPY SERVICES LIMITED PHARMACY TERMS AND CONDITIONS

(A) PharmAppy Services Limited (Company No: 14407492) of 317 Golden Hill Lane, Leyland, England, PR25 2YJ (“Supplier”) has developed certain software applications and a platform which it makes available to subscribers via the internet for the purpose of developing mobile device applications, uploading them to the platform and making them and parts of the platform available to end-users.

(B) The Pharmacy wishes to use the Supplier's services in its business operations.

(C) The Supplier has agreed to provide and the Pharmacy has agreed to take and pay for the Supplier's services subject to the terms and conditions of this agreement.

Agreed terms

1. Interpretation

The definitions and rules of interpretation in this clause apply in this Agreement.

1.1 Definitions:

Acceptable Use Policy: means the Supplier’s policy on acceptable use of the Subscription Services as updated from time to time and made available at www.pharmappy.com or on request via email to hello@pharmappy.co.uk

Agreement: means these Terms, the Online Order entered into between the parties referencing these Terms, Marketplace Terms and Conditions and the other documents incorporated into the Agreement as described in these Terms.

Application(s): the mobile application(s) and tools developed by the Supplier (including for the avoidance of doubt the Portal) and made available on the Platform, including all Intellectual Property Rights in and to the Application(s) (but excluding any Pharmacy Content), and which are provided under this Agreement by the Supplier from time to time as part of the Subscription Services, including any updates the Supplier may make to such Application(s) and tools from time to time.

Authorised Users: those employees of the Pharmacy who are authorised by the Pharmacy to use the Subscription Services and the Documentation.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13.5.

Data Sharing Terms: the data sharing terms upon which the parties agree to share personal data under this Agreement and as set out in Part 1 of the Schedule.

Documentation: the document made available to the Pharmacy by the Supplier via email from time to time which sets out a description of the Subscription Services and the user instructions for the Subscription Services.

EEA: all countries within the European Economic Area.

Effective Date: means the date the Supplier sends an order confirmation to the Pharmacy in accordance with clause 2.7.

End-User: any person the Pharmacy permits access to use the Application(s).

End-User Account: the account held and maintained by any End-User as a prerequisite to accessing and using the relevant Application on the Platform.

End-User Content:

a) all text, information, data, images, audio or video material, in whatever medium or form, inputted by any End User in relation to the use of any Application or the Subscription Services; and

b) all information related to any End User that is processed or stored by any Application,

but excluding all authentication information provided in relation to any End User Account.

End User Documentation: has the meaning set out in clause 3.8, copies of which are made available to the Pharmacy by the Supplier via email from time to time.

Fee: means as applicable, Set-Up Fee, Subscription Fee and White Label Development Fee.

Healthcare Legislation: any laws, regulations or mandatory codes applied or enforced by any national or regional medical or healthcare regulatory body.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, and Intellectual Property Rights include, without limitation, any Marks.

Initial Term: 12 months.

Marketplace Services: means the marketplace services to be provided by the Supplier to the Pharmacy as further described in and subject to the Marketplace Terms and Conditions.

Marketplace Terms and Conditions: means the terms and conditions applying to the Marketplace Services accessible in the Pharmacy PharmAppy portal or on request by contacting hello@pharmappy.co.uk

Marks:

a) any trade marks, trade names, service marks, trade dress, logos, URLs and domain names;

b) any identifying slogans and

symbols;

c) any abbreviation, contraction or simulation of any of the items in paragraph (a) or paragraph (b); and

d) the "look and feel",

of a party to this agreement, whether or not registered.

Normal Business Hours: 9.00 am to 6.00 pm local UK time, each Business Day.

Online Order: means an order placed by the Pharmacy via the Website or the Portal for the Services.

Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative's Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Services or the Software, or with which the Services or the Software is compiled or to which it is linked.

Payment Terms: means the payment terms set out online when purchasing a Subscription Package and/or Services with an Online Order.

Pharmacy: means the Pharmacy as set out in the Online Order.

Pharmacy Account: the Pharmacy's account with the Supplier in respect of the Services.

Pharmacy Content:

a) all text, information, data, software, executable code, images, audio or video material, in whatever medium or form, inputted by the Pharmacy, Authorised Users or the Supplier on the Pharmacy's behalf for the purpose of using, developing or maintaining any Application or using the Services or facilitating the Pharmacy's or any End-User's use of the Subscription Services; and

b) all End-User Content,

but excluding all authentication information provided in relation to the Pharmacy Account.

Platform: the Supplier's infrastructure and cloud computing platform and runtime environment, as described in the Documentation.

Portal: means the portal developed by the Supplier and made available on the Platform to enable the Pharmacy to manage their business. The Pharmacy can also submit Online Orders via the Portal.

Privacy Policy: means the Supplier’s privacy policy available at www.pharmappy.com.

Purpose: using the Application(s) to record and fulfil prescription/repeat prescription requests/orders and orders for other pharmacy services and/or making an appointment for an End User.

Renewal Period: a successive period of 12 months commencing on the day following expiry of the Initial Term.

Security Event:

a) any unauthorised third-party access to the Services or the Platform; or

b) any use of the Subscription Services by the Pharmacy, any Authorised User or any End-User that is in breach of the Acceptable Use Policy and has the potential to materially impact the Platform, the Subscription Services or use of the Services by any other Pharmacy of the Supplier or any of that Pharmacy's users; or

c) any Vulnerability or Virus introduced into the Platform or the Subscription Services by (or facilitated through) the Pharmacy, any Authorised User, or any End-User.

Service Level Agreement: the service level agreement set out in Part 2 of the Schedule.

Services: means the delivery of the Documentation, provision of the Marketplace Services, Subscription Services, Set-Up Services, and White Label Development Services as set out in an Online Order.

Set-Up Fee: means the fee payable by the Pharmacy to the Supplier for the Set-Up Services more particularly set out online when purchasing a Subscription Package with an Online Order.

Set-Up Services: means the set-up services to be provided by the Supplier to the Pharmacy under an Online Order for a paid Subscription Package.

Subscription Fees: means the annual recurring subscription fees payable by the Pharmacy to the Supplier for the Subscription Package purchased by the Pharmacy, as more particularly set out online when purchasing a Subscription Package with an Online Order.

Subscription Package: means the subscription package that the Pharmacy selects and purchases in relation to the Subscription Services with an Online Order, which entitles Authorised Users, and their End Users (up to a maximum number), to access and use the Subscription Services in accordance with this Agreement.

Subscription Services: means the subscription services provided by the Supplier to the Pharmacy under this Agreement as more particularly described in the Documentation, including:

a) the provision of access to the Platform, the Application(s) and the Support;

b) the hosting of any Applications on the Platform; and

c) such other services as the Supplier may decide, at its discretion, to integrate into the Platform from time to time.

Subscription Term: has the meaning given in clause 16.1 (being the Initial Term together with any subsequent Renewal Periods).

Support: the support to be provided to the Pharmacy under clause 5.5.

Terms: means these terms and conditions or any of them.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; 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 re-arranging, 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.

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

Website: means www.pharmappy.com.

White Label Development Services: means the additional white label development services to be provided by the Supplier as may be ordered by the Pharmacy under an Online Order for a PharmAppy Business Subscription Package.

White Label Development Services Fee: means the white label development services fee payable by the Pharmacy to the Supplier as detailed in an Online Order.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

1.9 A reference to writing or written includes faxes but not email.

1.10 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.

1.11 If there is an inconsistency between any of the provisions of this Agreement and the terms and conditions located at any URL, the provisions of this Agreement shall prevail. If there is an inconsistency between any of the provisions in the main body of this Agreement and the terms and conditions set out in any schedule to this Agreement, the provisions in the main body of this Agreement shall prevail.

1.12 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

2. Online Order Process

2.1 The advertising of the Services on the Website and Portal constitutes an ‘invitation to treat’ rather than a contractual offer.

2.2 No Agreement will come into force between the parties unless and until the Supplier accepts the Online Order in accordance with the procedure set out in this clause 2.

2.3 To enter into an Agreement through the Website or Portal to purchase the Subscription Services, the Pharmacy must select the Subscription Package it wishes to purchase and complete and submit an Online Order which must include the following information; first name, email address, telephone number, Pharmacy name, role, password and payment details.

2.5 The Pharmacy must submit the Online Order and tick the relevant box to indicate the Pharmacy’s acceptance to these Terms and the Privacy Policy.

2.6 The Pharmacy will be transferred to the Supplier’s payment service provider’s website and the Supplier’s payment service provider will take payment.

2.7 Once the Supplier has checked whether it is able to meet the Pharmacy’s Online Order it will either send the Pharmacy an order confirmation (at which point the Online Order will become a binding Agreement between the parties) or the Supplier will confirm by email that it is unable to meet the Pharmacy’s Online Order.

3. Right to use the Subscription Service

3.6 Subject to the Pharmacy purchasing the Subscription Package and compliance with these Terms, the Supplier hereby grants to the Pharmacy a non-exclusive, non-transferable right during the Subscription Term:

(a) to permit the Authorised Users to use the Subscription Services (including the Authorised User Account) and the Documentation solely in accordance with this Agreement and specifically to make it available to End-Users for the Purpose;

(b) to integrate the Subscription Services into any Application, to provide the Services, solely as integrated into any Application, to End-Users and to permit those Subscription Services to be used in association with the Pharmacy's Marks; and

(c) to permit End-Users to use the Application(s) and such of the Subscription Services as have been integrated into those Applications for the Purpose, provided the number of End-Users do not exceed the maximum number of End-Users permitted with the Subscription Package purchased by the Pharmacy.

3.7 In relation to the Subscriptions, the Pharmacy undertakes that it will not allow or suffer any End-User Account to be used by more than one individual End-User.

3.8 The Pharmacy acknowledges that the End-User will require, in order to use the Application(s), to agree to be bound by the Supplier’s Privacy Policy and End User Licence Agreement (“End User Documentation”) and the Supplier reserves the right to suspend or terminate any End Users access to the Application(s) in accordance with such End User Documentation. In the event the Supplier exercises its rights referred to under this clause 3.8, the Supplier shall notify the Pharmacy as soon as reasonably practicable. For the avoidance of doubt, the provisions of this clause shall also apply where the Pharmacy has purchased a Subscription Package which permits the Application(s) to contain the Pharmacy’s Marks.

For the avoidance of doubt, in the event the Supplier terminates any End User’s access to the Application in accordance with the End User Documentation, such End User shall not be considered as counting towards the permitted amount of End Users within the relevant Subscription Package.

3.9 Notwithstanding any other provision in this Agreement, if there is a Security Event, the Supplier may, without liability or prejudice to its other rights and without prior notice to the Pharmacy or any End-User, remove the relevant Pharmacy Content and disable the Pharmacy Account and/or any End-User Account and access to the relevant Application until the relevant Security Event has been resolved. The Supplier shall give the Pharmacy written notice as soon as is reasonably practicable of the nature of the relevant Security Event and the obligation to pay the Subscription Fee shall be suspended until access to the relevant Application(s) has been resolved, except where the Security Event is due to the acts or omissions of the Pharmacy.

3.10 The Pharmacy shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i) except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application and/or Documentation (as applicable) in any form or media or by any means; or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application;

(b) access all or any part of the Subscription Services and Documentation in order to build a product or service which competes with the Subscription Services and/or the Documentation;

(c) use the Subscription Services and/or Documentation to provide services to third parties or;

(d) subject to clause 24.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Subscription Services and/or Documentation available to any third party except the Authorised Users, provided that the provision of the Subscription Services to End-Users is permitted to the extent necessary to enable them to use the relevant Application;

(e) attempt to obtain, or assist third parties in obtaining, access to the Subscription Services and/or Documentation, other than as provided under this clause 3; or

(f) introduce, or permit the introduction of, any Virus or Vulnerability into the Platform or the Subscription Services.

3.11 The Pharmacy shall:

(a) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Subscription Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier;

(b) keep any password or log in details of its Pharmacy Account confidential; and

(c) comply with any further obligations set out in the Documentation that govern use of the Subscription Services or development of Applications.

3.12 The rights provided under this clause 3 are granted to the Pharmacy only and shall not be considered granted to any subsidiary or holding company of the Pharmacy.

3.13 Any Open-Source Software provided by the Supplier may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided "as is" and expressly subject to the disclaimer in clause 15.2(c). Such terms and conditions shall govern such use to the extent that they expressly supersede this agreement.

4. Additional user subscriptions

4.1 The Subscription Package purchased by the Pharmacy as at the Effective Date shall specify the maximum number of End Users permitted under the relevant package. If the number of End Users who have downloaded the Application reach 75% of the maximum number of End Users permitted in the Subscription Package purchased by the Pharmacy under this Agreement, the Portal will send a notification to the Pharmacy. The Supplier may also notify the Pharmacy.

4.2 In the event that the number of End Users exceed the permitted amount within the Subscription Package purchased by the Pharmacy under this Agreement, the number of End Users shall automatically be increased by an additional 500 End Users and the Subscription Fee shall be increased accordingly, with such increase taking effect from the date the maximum threshold of End-Users is breached.

4.3 If following the Initial Term, the Supplier wishes to downgrade its Subscription Package, it shall notify the Supplier in writing setting out: (i) the level of Subscription Package it wishes to downgrade to; and (ii) the date it wishes the new Subscription Package to take effect. The Supplier shall evaluate such request (including the number of End Users using the Application) and respond to the Pharmacy with approval or rejection of the request (such approval not to be unreasonably withheld). Notwithstanding the foregoing, should the number of End Users who download the Application exceed the permitted maximum number of End Users in the Subscription Package the Pharmacy has downgraded to, the provisions of Clause

4.4 request 4.2 shall apply.

4.5 If the Supplier approves the Pharmacy’s under Clause 4.3, the Subscription Fee shall be amended accordingly and shall take effect from the date the parties agree the new package is to take effect under Clause 4.3 (as relevant).

5. Services

5.1 Should the Pharmacy elect to purchase White Label Development Services, the Supplier shall contact the Pharmacy to discuss the Pharmacy’s requirements. Time shall not be of the essence for the performance of the White Label Development Services and the Supplier shall not be liable for any failure to perform the White Label Services by any dates specified or within a reasonable time thereafter.

5.2 The Supplier shall, during the Subscription Term:

(a) provide the Subscription Services and access to the Platform and make available the Documentation to the Pharmacy on and subject to the terms of this Agreement; and

(b) enable End-Users to connect via the internet to the Application deployed on the Platform and to use in accordance with this Agreement such of the Subscription Services as have been integrated into that Application.

5.3 The provision of the Subscription Services shall be subject to ongoing provision of the Supplier’s hosting services provider from time to time. The Supplier shall use reasonable endeavours to inform the Pharmacy in advance of any planned service interruption to the Subscription Services.

5.4 The Supplier warrants that it will provide the Subscription Services in accordance with the Service Level Agreement.

5.5 The Supplier will, as part of the Subscription Services and at no additional cost to the Pharmacy, provide the Pharmacy with the Supplier's standard Pharmacy support services during Normal Business Hours.

5.6 During the first quarter of 2024 (January – 31 March), the Supplier will provide the Marketplace Services to all Pharmacies which will be subject to the payment of additional fees by the Pharmacy. Full details are set out within the Marketplace Terms and Conditions.

5.7 Notwithstanding any other provision in this Agreement, the Pharmacy acknowledges and agrees that it is responsible for technical support of all Applications.

5.8 From time to time the Supplier may:

(a) modify the Subscription Services by issuing updates; and

(b) make new features, functionality, applications or tools available in respect of the Subscription Services, whose use may be subject to the Pharmacy's acceptance of further terms and conditions,

6. Pharmacy Content, Marks and data protection

6.1 The Pharmacy (or its licensors) shall own all Intellectual Property Rights in and to all of the Pharmacy Content including any End User Content and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Pharmacy Content. The Pharmacy warrants that use of the Pharmacy Content (excluding End User Content) by the Supplier under or in relation to this Agreement shall not infringe any third-party rights, including Intellectual Property Rights.

6.2 The Pharmacy hereby grants to the Supplier a non-exclusive, non-transferable right during the Subscription Term to carry out any acts that would otherwise be restricted by any of the Intellectual Property Rights in the Pharmacy Content (including for the avoidance of doubt applying the Pharmacy’s Mark to the Application where the Pharmacy has purchased a PharmAppy Business Subscription Package) for the sole purpose of enabling the Supplier to provide the Services to the Pharmacy in accordance with this Agreement.

6.3 The Pharmacy acknowledges and agrees that the Application shall display the Supplier’s Mark as set out in the Documentation and the positioning of the Supplier’s Mark on the Application is at the Supplier’s discretion.

6.4 The Supplier shall follow its archiving procedures for Pharmacy Content as set out in its Back-Up Policy, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Pharmacy Content, the Pharmacy's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Pharmacy Content from the latest back-up of such Pharmacy Content maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Pharmacy Content by any third party (except those third parties sub-contracted by the Supplier to perform services related to maintenance and back-up of Pharmacy Content). 

6.5 The Pharmacy acknowledges and agrees that:

(a) the Supplier may include the Pharmacy's name or the Pharmacy's Marks in a list of the Supplier's customers in any medium or in any link from the Platform to the Pharmacy's website; and

(b) the Supplier may refer to the Pharmacy, orally or in writing, as a customer of the Services for promotional, marketing and financial reporting purposes.

6.6 The parties acknowledge that it shall be necessary for the Supplier to process personal data under this Agreement for it to provide and for the Pharmacy to use, the Services. The parties agree to be bound by the terms of the Data Sharing Terms in relation to any data processing or sharing activities by either party under or in relation to this Agreement.

7. Third party providers

The Pharmacy acknowledges that the Subscription Services may enable or assist it or any of the End-Users to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does, and the End-Users do, so solely at its own risk. The Supplier makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Pharmacy or any End-User (as the case may be), with any such third party. Any contract entered into, and any transaction completed via any third-party website is between the Pharmacy or the relevant End-User (as the case may be) and the relevant third party, and not the Supplier. The Supplier recommends that the Pharmacy and End-Users refer to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Subscription Services.

8. Supplier's obligations

8.1 The Supplier undertakes that the Subscription Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

8.2 The Supplier undertakes that the Set-Up Services and the White Label Development Services will be performed with reasonable skill and care.

8.3 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Subscription Services contrary to the Supplier's instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents.

8.4 If the Services do not conform with the foregoing undertakings at clause 8.1 and clause 8.2, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Pharmacy with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Pharmacy's sole and exclusive remedy for any breach of the undertakings set out in clause 8.1 and clause 8.2. Notwithstanding the foregoing, the Supplier:

(a) does not warrant that:

(i) the Pharmacy's use of the Subscription Services will be uninterrupted or error-free; or

(ii) the Subscription Services, Documentation and/or the information obtained by the Pharmacy, or any End-User through the Subscription Services will meet the Pharmacy's or any End-User's requirements; or

(iii) the Platform or the Subscription Services will be free from Vulnerabilities; and

(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Pharmacy acknowledges that the Subscription Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

8.5 This Agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

8.6 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

9. Pharmacy's obligations

The Pharmacy shall:

(a) provide the Supplier with:

(i) all necessary co-operation in relation to this Agreement; and

(ii) all necessary access to such information as may be required by the Supplier,

in order to provide the Services, security access information and configuration services;

(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations, including any of those relating to the export of data and software, with respect to its activities under this Agreement;

(c) carry out all other Pharmacy responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Pharmacy's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) ensure that the Authorised Users and End-Users use the Subscription Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for breach of this Agreement caused or contributed to by any acts or omissions on the part of any Authorised User or End-User;

(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this Agreement, including provision of the Services;

(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;

(g) be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Pharmacy's or any End-User's network connections or telecommunications links or caused by the internet;

(h) as between the parties, be responsible for responding to all third-party requests concerning the use of the Subscription Services by the Pharmacy or any End-User; and

(i) not access the Subscription Services in a manner intended to avoid incurring fees or unreasonably to reserve names for Applications, by creating multiple Applications or deployments of the same Application or otherwise.

10. Charges and payment

10.1 The Pharmacy agrees to pay the Fees at the rates and in the currency displayed on the Website during the Online Order process and in accordance with this clause 10. The Fees for each Service are listed on the Online Order and the Pharmacy shall pay each invoice within the Payment Terms.

10.2 All payments shall be paid in full, without deduction of taxes or other fees that may be imposed by any government, unless applicable local legislation prohibits such deductions. Any such taxes and fees are the responsibility of the Pharmacy.

10.3 If the Supplier does not receive payment authorisation or any authorisation is subsequently cancelled, the Supplier may immediately terminate or suspend the Services. The Supplier shall not ne responsible for any loss, damage, costs, expenses or other claims of the Pharmacy or any third-party result for the termination or suspension of the Services.

10.4 If the Supplier has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of the Supplier:

(a) the Supplier may, without liability to the Pharmacy, disable the Pharmacy Account and password and the Pharmacy's access, to all or part of the Subscription Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and

(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

10.5 All Fees stated or referred to in this Agreement:

(a) shall be payable in pounds sterling unless otherwise specified in the Online Order;

(b) are, subject to clause 15.4(b), non-cancellable and non-refundable;

(c) are exclusive of value added tax, which shall be added to The Supplier’s invoice(s) at the appropriate rate.

10.6 The Supplier will give the Pharmacy at least 14 days’ notice of any increase in the Subscription Fee, which will take effect at the next Renewal Period.

10.9 If the Supplier incorrectly states Fees on the Website or otherwise, the Supplier is not obliged to provide the Pharmacy with the Services at that price, even if the Supplier has mistakenly accepted the Pharmacy’s offer to buy the Services. If the Supplier notifies the Pharmacy of a pricing error the Pharmacy may cancel the Services and the Supplier will refund the Pharmacy any Fees paid, or the Pharmacy may pay the correct Fees. If the Pharmacy does neither, the Supplier may cancel the Services and refund any money the Pharmacy has paid.

10.10 If the Pharmacy is entitled a refund, the Supplier will credit that refund to the card or other payment method the Pharmacy used to submit payment unless it has expired in which case the Supplier will contact the Pharmacy.

10.11 Payments shall be made by direct debit or other payment mechanism notified to the Pharmacy by the Supplier from time to time.

11. Mobile Payment Terms

11.1 The Supplier uses Stripe Connect as its payment processing platform which enables the Pharmacy to receive payments from End-Users for products and services including prescription medication.

11.2 The Pharmacy shall receive payments through a Stripe Connected Account whose usage is governed by the Stripe Connected Account Agreement https://stripe.com/gb/connect-account/legal].

11.3 The Pharmacy shall provide all business information, credentials and valid bank details to Stripe as is necessary to activate its Stripe Connected Account.

11.4 Unless otherwise agreed between the parties, Stripe Connect shall pay out monthly to the Pharmacy’s bank account. 

11.5 The Supplier shall be liable for the Pharmacy’s fees pertaining to its Stripe Connected Account including set-up fee, pay-out fees, and account hosting fees.

12. Proprietary rights

12.1 The Pharmacy acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Services (whether integrated into an Application or not), the Application(s), Documentation, and the Supplier's Marks. Except as expressly stated in this Agreement, this Agreement does not grant the Pharmacy any rights to, or in, any Intellectual Property Rights or any other rights or licences in respect of the Services, the Application(s), the Documentation or the Supplier's Marks.

12.2 The Supplier confirms that it has all the rights in relation to the Services, the Application(s), the Documentation and the Supplier's Marks that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

12.3 Other than in respect of the Supplier’s Mark already appearing in the Documentation and Application(s) as placed by the Supplier, if the Pharmacy wishes to display the Supplier's Marks in relation to its use of the Services, the Pharmacy shall obtain the Supplier’s prior written consent.

12.4 All uses of a party's Marks under this Agreement, including all goodwill arising, shall accrue solely to the benefit of the party owning the Intellectual Property Rights in those Marks.

13. Confidentiality and compliance with policies

13.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party's lawful possession before the disclosure;

(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

13.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this Agreement.

13.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents (and also, in the case of the Pharmacy only, by the End-Users) in breach of the terms of this Agreement.

13.4 The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

13.5 The parties acknowledge that:

(a) the Supplier's Confidential Information includes details of the Services, and the results of any performance tests of the Services; and

(b) the Pharmacy's Confidential Information includes the Pharmacy Content and all Applications.

13.6 The above provisions of this clause 13 shall survive termination of this Agreement, however arising.

13.7 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.

13.8 In performing its obligations under this Agreement, the Supplier shall comply with all applicable laws, statutes, regulations from time to time in force.

14. Indemnity

14.1 The Pharmacy shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with:

(a) the Pharmacy Content;

(b) the Pharmacy's Marks; or

(c) the Pharmacy's use of the Services and/or Documentation.

14.2 The Supplier shall defend the Pharmacy, its officers, directors and employees against any claim that the use of any of the Services (excluding Pharmacy Content) or the Documentation or any of the Supplier's Marks by the Pharmacy in accordance with this Agreement infringes any third party rights including intellectual property rights of third parties, and shall indemnify the Pharmacy for any amounts awarded against the Pharmacy in judgment or settlement of such claims, provided that this indemnity does not apply to the extent that any such claim is based on the use of any Open-Source Software.

14.3 The obligations of the Pharmacy and the Supplier under clause 14.1 and clause 14.2 respectively are conditional on:

(a) the indemnifying party being given prompt notice of any relevant claim;

(b) the indemnified party providing reasonable co-operation to the indemnifying party in the defence and settlement of such claim, at the indemnifying party expense; and

(c) the indemnifying party being given sole authority to defend or settle such claim.

14.4 Except as specifically provided in this Agreement, the enforcement and protection of a party's Intellectual Property Rights shall be in the sole discretion and control of that party and any and all recoveries resulting from such enforcement or protection actions shall be retained by that party.

14.5 In the defence or settlement of any claim, the Supplier may procure the right for the Pharmacy to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two Business Days' notice to the Pharmacy without any additional liability or obligation to pay liquidated damages or other additional costs to the Pharmacy.

14.6 In no event shall the Supplier, its employees, agents and subcontractors be liable to the Pharmacy to the extent that the alleged infringement is based on:

(a) a modification of the Services or Documentation by anyone other than the Supplier;

(b) the use of the Services or Documentation by the Pharmacy in combination with any Pharmacy Content or any Application;

(c) the use of the Services or Documentation by the Pharmacy in a manner contrary to the instructions given to the Pharmacy by the Supplier; or

(d) the use of the Services or Documentation by the Pharmacy after notice to the Pharmacy of the alleged or actual infringement from the Supplier or any appropriate authority.

14.7 The foregoing states the Pharmacy's sole and exclusive rights and remedies, and the Supplier's (including the Supplier's employees', agents' and subcontractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

15. Limitation of liability

15.1 This clause 15 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Pharmacy and its Authorised Users:

(a) arising under or in connection with this Agreement;

(b) in respect of any use made by the Pharmacy and its Authorised Users of the Services and Documentation or any part of them; and

(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

15.2 Except as expressly and specifically provided in this Agreement:

(a) the Pharmacy assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Pharmacy or any End-User, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Pharmacy or any End-User in connection with the Services, or any actions taken by the Supplier at the Pharmacy's direction;

(b) the Supplier makes no warranty or representation that the Services or its Platform comply with any Healthcare Legislation and the Pharmacy assumes sole responsibility for compliance with the same;

(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement;

(d) the Subscription Services and the Documentation are provided to the Pharmacy and the End-Users on an "as is" basis.

15.3 Nothing in this Agreement excludes the liability of the Supplier:

(a) for death or personal injury caused by the Supplier's negligence; or

(b) for fraud or fraudulent misrepresentation.

15.4 Subject to clause 15.2 and clause 15.3:

(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

(b) the Supplier's total aggregate liability in contract (including in respect of the indemnity at clause 14.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for during the 12 months immediately preceding the date on which the claim arose.

16. Term and termination

16.1 This Agreement shall, unless otherwise terminated as provided in this clause 16, commence on the Effective Date and shall continue for the Initial Term and, thereafter, this agreement shall be automatically renewed after each Renewal Period, unless:

(a) either party notifies the other party of termination, in writing, at least 60 Business Days before the end of the Initial Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or

(b) otherwise terminated in accordance with the provisions of this Agreement.

The Initial Term together with any subsequent Renewal Periods shall constitute the Subscription Term.

16.2 In the event the Pharmacy wishes to terminate the Agreement prior to the notice period set out at clause 16.1 (a) it must contact the Supplier to discuss. Any request to terminate the Agreement without having to pay additional Fees will be considered by the Supplier in its sole and absolute discretion. For the avoidance of doubt, should the Supplier consent to the Pharmacy terminating the Agreement early it shall not be entitled to a refund of any Fees paid.

16.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;

(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;

(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.2(d) to clause 16.2(j) (inclusive);

(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

16.4 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Pharmacy if:

(a) the Supplier discontinues the Application(s) and the Services; or

(b) the Supplier loses the right to provide the Application(s) and/or the Services or the provision of it becomes unlawful in any way.

16.5 If the Supplier terminates this Agreement for any of the reasons set out in clause 16.4 it will provide the Pharmacy with a pro rata refund of any Subscription Fees paid in respect of the remaining period of the Subscription Term. Except as provided in this clause 16.5, the Supplier shall have no other liability to the Pharmacy in respect of termination of this Agreement in accordance with clause 16.4.

16.6 On termination of this Agreement for any reason:

(a) all licences granted under this Agreement shall immediately terminate;

(b) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;

(c) without limiting the effect of clause 16.6(b), the Supplier may require the Pharmacy immediately to return all copies of the Software, the Documentation, the Supplier's Confidential Information and any other materials or to erase the same from the Pharmacy's computer and communications systems and devices used by the Pharmacy (but not those used by any End-User in relation to any Application), including such systems and data storage services provided by third parties (to the extent technically and legally practicable). The Pharmacy may, at the Supplier's request, be required to confirm in writing that all such copies have been returned or so erased;

(d) the Supplier may destroy or otherwise dispose of any of the Pharmacy Content and Applications in its possession unless the Supplier receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Pharmacy of the then most recent back-up of the Pharmacy Content and Applications. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Pharmacy within 30 days of its receipt of such a written request, provided that the Pharmacy has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Pharmacy shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Pharmacy Content and Applications;

(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced;

(f) any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect; and

(g) any outstanding balance becomes immediately due and payable.

17. Force majeure

The Supplier shall have no liability to the Pharmacy under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, provided that the Pharmacy is notified of such an event and its expected duration.

18. Conflict

If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.

19. Variation

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

20. Waiver

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21. Rights and remedies

Except as expressly provided in this Agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

22. Severance

22.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

22.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

23. Entire agreement

23.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

23.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this agreement.

24. Assignment

24.1 The Pharmacy shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.

24.2 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement.

25. No partnership or agency

Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

26. Third party rights

This Agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

27. Notices

27.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this Agreement.

27.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

28. Governing law

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

29. Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

Schedule

Part 1 DATA SHARING TERMS

Part 1 of this Schedule contains the terms and conditions that shall apply where the Supplier is sharing Personal Data with the Pharmacy on a Controller to Controller basis.

AGREED TERMS

In this Schedule, the following words and expressions will have the following meanings:

Agreed Purposes: means the purpose(s) for which Shared Personal Data can be processed under these Data Sharing Terms and which are:

(i) to allow the Supplier to host the Personal Data inputted into the Application;

(ii) to allow the Supplier to provide the Services and inform the Pharmacy of the End Users request for a prescription and/or other request such as making an appointment and/or submitting an order for goods and/or services;

(iii) to allow the Pharmacy to review use of the Application by End Users;

(iv) to allow the Pharmacy to receive, review and process the End Users request for the purpose of processing prescription requests/orders and orders for other pharmacy goods and/or services .

Data Controller: has the meaning set out in the Data Protection Legislation.

Data Processor: has the meaning set out in the Data Protection Legislation.

Data Protection Authority:  the relevant data protection authority in the territories where the parties to this Data Sharing Agreement are established.

Data Protection Legislation:  while they remain in force the Data Protection Act 2018, Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, the Electronic Communications Data Protection Directive, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the GDPR and any other laws and regulations relating to the processing of personal data and privacy which apply to a party and, if applicable, the guidance and codes of practice issued by the relevant data protection or supervisory authority.

Data Security Breach:  a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Shared Personal Data.

Data Subject: has the meaning set out in the Data Protection Legislation.

GDPR: Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of the natural person with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.

Personal Data: has the meaning set out in the Data Protection Legislation.

Processing: has the meaning set out in the Data Protection Legislation.

Shared Personal Data: means the Personal Data and/or Special Category of Data to be shared between the parties and which fall into the following categories: name, e-mail address, password, details of prescription(s); or as otherwise agreed between the parties from time to time.

Special Category of Data: has the meaning set out in the Data Protection Legislation.

Subject Access Request:  has the same meaning as “Right of access to personal data” in Article 15 of GDPR.

2. PURPOSE

2.1 The parties agree to only process Shared Personal Data for the Agreed Purposes.

2.2 The parties shall not process Shared Personal Data in a way that is incompatible with the Agreed Purposes.

3. COMPLIANCE WITH NATIONAL DATA PROTECTION LAWS

3.1 Each party must process the Shared Personal Data in compliance with applicable Data Protection Laws at all times during the Term.

3.2 In the event that the applicable data protection law of each party conflict, the requirements of the country that necessitates stricter or additional requirements to protect individuals’ privacy and personal data shall be applied.

4. SHARED PERSONAL DATA

4.1 The parties agree that:

(i) for the purposes of the Data Protection Legislation, the parties shall be considered Data Controllers and shall comply with its obligations under the Data Protection Legislation as a Data Controller; and

(ii) they shall cooperate with each other in so far as reasonably necessary to enable each other to perform their obligations under the Data Protection Legislation in respect of any Shared Personal Data collected, held or processed as part of these Data Sharing Terms.

4.2 Each party shall appoint a single point of contact (SPoC) who will work together to reach an agreement with regards to any issues arising from the data sharing and to actively improve the effectiveness of the data sharing initiative.

5. FAIR AND LAWFUL PROCESSING

5.1 Each party shall ensure that it processes the Shared Personal Data fairly in accordance with the Data Protection Legislation, which shall include providing the Data Subjects it collects the Personal Data from with the necessary fair processing information required under the Data Protection Legislation.

5.2 Each party shall ensure it processes the Shared Personal Data lawfully and in doing so, has established the legal basis upon which it is authorised to process the Shared Personal Data under the Data Protection Legislation. The parties agree that the legal ground for processing is consent.

6. DATA QUALITY

6.1 Each party shall ensure, in so far as reasonably practicable that before transferring the Shared Personal Data to the other party, that the Shared Personal Data are adequate, accurate, relevant and not excessive for the Agreed Purposes.  

6.2 Shared Personal Data must be limited to the definition of Shared Personal Data or as otherwise agreed between the parties.

7. DATA SUBJECTS’ RIGHTS

7.1 Each party’s SPoC shall be responsible for handling any Data Subject Access Request or other request from Data Subjects received by them under or in relation to this Data Sharing Agreement.

7.2 Each party shall cooperate with each other in so far as reasonably necessary to enable each other to perform their obligations under the Data Protection Legislation or other applicable legislation, in respect of any Personal Data collected, held or processed.

7.3 When dealing with Data Subject Access Requests or other requests under Clause 7.1, each party shall maintain a record of individual requests for information, the decisions made and any information that was exchanged. Records must include copies of the request for information, details of the data accessed and shared and where relevant, notes of any meeting, correspondence or phone calls relating to the request.

8. DATA RETENTION AND DELETION

8.1 The party receiving the Shared Personal Data shall not retain or process Shared Personal Data for longer than is necessary to carry out the Agreed Purposes.

8.2 Notwithstanding Clause 8.1, the parties shall continue to retain Shared Personal Data in accordance with any statutory or professional retention periods applicable in their respective countries and / or industry.

8.3 Subject to Clause 8.2, each party shall ensure that any Shared Personal Data including End User Personal Data are destroyed securely in accordance with secure deletion procedures once processing of the Shared Personal Data is no longer necessary for the Agreed Purposes.

9. TRANSFERS

9.1 For the purposes of this Clause 9, transfers of Shared Personal Data shall mean any sharing of Shared Personal Data by the receiving party with a third party, and shall include, but is not limited to, the following:

(a) storing Shared Personal Data on

servers outside the EEA;

(b) sub-contracting the processing of Shared Personal Data to data processors located outside the EEA; and

(c) granting third parties located outside the EEA access rights to the Shared Personal Data.

9.2 The receiving party shall not disclose or transfer the Shared Personal Data to a third party located outside the EEA without (i) the disclosing party’s prior written consent; and (ii) ensuring that such transfer is permitted under the applicable Data Protection Legislation.

9.3 Clause 9.2 will not apply to any data transfers carried out by one party to the other party in respect of Shared Personal Data.

10. SECURITY AND TRAINING

10.1 Each party shall only provide the Shared Personal Data to the other by using secure methods. With regard to the Supplier, all Shared Personal Data shall be sent to the Pharmacy in pdf format attached to a secure email. With regard to the Pharmacy, all Shared Personal Data shall be shared with the Supplier by either secure email to the Supplier’s SPoC or by inputting the Shared Personal Data into the Application.

10.2 Having regard to the state of technological development and the cost of implementing such measures, the parties agree and confirm, during the Subscription Term, to have in place appropriate technical and organisational security measures in order to:

(a) prevent:

(i) unauthorised or unlawful processing of the Shared Personal Data; and

(ii) the accidental loss or destruction of, or damage to, the Shared Personal Data; and

(b) ensure a level of security appropriate to:

(i) the harm that might result from such unauthorised or unlawful processing; or

(ii) accidental loss,

destruction or damage;

and

(iii) the nature of the Shared Personal Data to be protected.

10.3 It is the responsibility of each party to ensure that its staff members are appropriately trained to handle and process the Shared Personal Data in accordance with applicable Data Protection Laws.

10.4 The level, content and regularity of training referred to in clause 10.3 shall be proportionate to the staff members’ role, responsibility and frequency with respect to their handling and processing of the Shared Personal Data.

11. DATA SECURITY BREACHES AND

REPORTING PROCEDURES

11.1 Having considered the applicable Data Protection Laws, the parties confirm they have in place their own guidance that must be followed in the event of a Data Security Breach.

11.2 Parties are under a strict obligation to notify any potential or actual losses of the Shared Personal Data to each and every SPoC as soon as possible and, in any event, within 12 hours of identification of any potential or actual loss to enable the parties to consider what action is required in order to resolve the issue in accordance with the applicable Data Protection Legislation.

11.3 Clause 11.1 also applies to any breaches of security which may compromise the security of the Shared Personal Data.

11.4 The parties agree to provide reasonable assistance as is necessary to each other to facilitate the handling of any Data Security Breach in an expeditious and compliant manner.

12. RESOLUTION OF DISPUTES WITH DATA SUBJECTS OR THE DATA PROTECTION AUTHORITY

12.1 In the event of a dispute or claim brought by a Data Subject or the Data Protection Authority concerning the processing of Shared Personal Data against either or both parties, the parties will inform each other about any such disputes or claims as soon as reasonably practicable, and will cooperate with a view to settling them amicably in a timely fashion.

12.2 The parties agree to respond to any generally available non-binding mediation procedure initiated by a Data Subject or by the Data Protection Authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.

12.3 Each party shall abide by a decision of a competent court of the Data Discloser’s country of establishment or of the Data Protection Authority which is final and against which no further appeal is possible.

13. WARRANTIES

13.1 Each party warrants and undertakes that it:

(a) has authority to share and/or transfer the Shared Personal Data to the other party under and in accordance with these Data Sharing Terms;

(b) shall process the Shared Personal Data in compliance with all applicable Data Protection Legislation that apply to its personal data processing operations;

(c) shall take all appropriate steps to ensure compliance with the security measures set out in clause 11 above.

13.2 Except as expressly stated in these Data Sharing Terms, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.

14. LIMITATION OF LIABILITY

14.1 Neither party excludes or limits liability to the

other party for:

(a) fraud or fraudulent misrepresentation;

(b) death or personal injury caused by negligence, fraud or breach of statutory duty;

(c) a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

(d) any matter for which it would be unlawful for the parties to exclude liability.

14.2 Subject to Clause 14.1, neither party shall in any circumstances be liable whether in contract, delict (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:

(a) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill; 

(b) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time).

14.3 Clause 14.2 shall not prevent claims, for:

(a) direct financial loss that are not excluded under any of the categories set out in Clause 14.2(a), which shall include any penalties or fines issued by a Data Protection Authority; or

(b) tangible property or physical damage.

Part 2 SERVICE LEVEL AGREEMENT

The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for unscheduled maintenance performance outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Pharmacy at least six Normal Business Hours’ notice in advance.