Terms & Conditions for Hosted Services & Related Services


Please read these Terms and Conditions carefully. All contracts that MCA may enter into from time to time for the provision of the Hosted Services and related services shall be governed by these Terms and Conditions, and MCA will ask the Customer for the Customer's express written acceptance of these Terms and Conditions before providing any such services to the Customer.

1.       Definitions

1.1     Except to the extent expressly provided otherwise, in these Terms and Conditions:

"Acceptance Period" means a period of 10 Business Days following the making available of a Customisation or any repeated making available of the Customisation to the Customer for the purposes of testing in accordance with Clause 7, or such other period or periods as the parties may agree in writing;

"Acceptance Tests" means a set of tests designed to establish whether a Customisation:

(a)      conforms in all material respects with any specification for the Customisation agreed in writing by the parties; and

(b)      does not introduce any Defects into the Hosted Services,

providing that the exact form of the tests shall be determined and documented by MCA acting reasonably, and communicated to the Customer in advance of the first relevant Acceptance Period;

"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;

"Affiliate" means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;

"Agreement" means a contract between the parties incorporating these Terms and Conditions, and any amendments to that contract from time to time;

"Agreement Period" means a period of 1 month or 1 year (as specified in the Service Order) beginning:

(a)      upon the Effective Date; or

(b)      immediately following a previous Agreement Period;

"Business Day" means any weekday other than a bank or public holiday in England;

"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;

"Charges" means the following amounts:

(a)      the amounts specified in the Service Order;

(b)      such other amounts as may be agreed in writing by the parties from time to time; and

(c)      to the extent that the parties have agreed upon time-based charging, amounts calculated by multiplying MCA's standard time-based charging rates (as notified by MCA to the Customer from time to time) by the time spent by MCA's personnel performing the relevant Services (rounded up by MCA to the nearest quarter hour);

"Confidential Information" means the Customer Confidential Information and MCA Confidential Information;

"Consultancy Services" means any consultancy services that MCA provides or agrees to provide to the Customer from time to time (excluding Support Services and Training Services), which services are subject to Schedule 3;

"Control" means the legal power to control (directly or indirectly) the management of an entity (and "Controlled" should be construed accordingly);

"Customer" means the person or entity identified as such in the Service Order;

"Customer Confidential Information" means:

(a)      any information disclosed by the Customer to MCA during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (i) was marked as "confidential"; or (ii) should have been reasonably understood by MCA to be confidential; and

(b)      the Customer Data;

"Customer Data" means all data, works and materials uploaded to or stored on the Platform by the Customer or supplied by the Customer to MCA for uploading to, transmission by or storage on the Platform;

"Customer Personal Data" means Personal Data that is processed by MCA on behalf of the Customer in relation to the Agreement;

"Customisation" means a customisation of the Hosted Services produced by MCA for the Customer, which may arise out of: basic or advanced website design, software configuration, software integration and/or software development, in each case as detailed in the Service Order or agreed by the parties in writing;

"Defect" means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:

(a)      any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;

(b)      any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;

(c)      a failure of the Customer to perform or observe any of its obligations in the Agreement; and/or

(d)      an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software;

"Documentation" means any documentation for the Hosted Services produced by MCA and delivered or made available by MCA to the Customer, as it may be updated from time to time by MCA;

"Effective Date" means the date when MCA confirms the Customer's order for the Hosted Services by issuing a Service Order;

"Expenses" means the travel, accommodation and subsistence expenses that are reasonably necessary for, and incurred by MCA exclusively in connection with, the performance of MCA's obligations under the Agreement;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);

"Hosted Services" means the MyCareAdmin ERP hosted services owned and operated by MCA which will be made available by MCA to the Customer as a service via the internet in accordance with these Terms and Conditions, and includes any services provided by means of add-on modules purchased by the Customer from MCA's app store;

"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);

"MCA" means MyCareAdmin Limited, a company incorporated in England and Wales (registration number 09394841) having its registered office at 140 High Street, Iver, Buckinghamshire, England, SL0 9QA;

"MCA Confidential Information" means:

(a)      any information disclosed by or on behalf of MCA to the Customer at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure: (i) was marked as "confidential"; or (ii) should have been reasonably understood by the Customer to be confidential; and

(b)      any financial terms negotiated and agreed by the parties;

"MCA Indemnity Event" has the meaning given to it in Clause 21.1;

"Personal Data" has the meaning given to it in the Data Protection Act 1998;

"Platform" means the platform managed by MCA and used by MCA to provide the Hosted Services, which may be:

(a)      a shared platform; or

(b)      a dedicated platform,

as specified in the Service Order, and including in each case the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;

"Service Order" means a document issued by MCA after receipt of the Customer's order (whether such order is given online or offline), confirming that the Agreement has come into force and setting out the particulars of the Agreement;

"Services" means any services that MCA provides to the Customer, or has an obligation to provide to the Customer, under these Terms and Conditions, which may include Set Up Services, Hosted Services, Support Services, Training Services, Consultancy Services and the creation of any Customisation;

"Set Up Services" means set up services relating to the Hosted Services and detailed in the Service Order, which may include the configuration of the Hosted Services;"

"Training Services" means the provision of training by MCA to the Customer in relation to the Hosted Services, as agreed in the Service Order or otherwise agreed by the parties in writing;

"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;

"Term" means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;

"Terms and Conditions" means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions, the Schedules and the Service Order, including any amendments to that documentation from time to time;

"Update" means a hotfix, patch or minor version update to any Platform software;

"Upgrade" means a major version upgrade of any Platform software; and

"Usage Restriction" means a specific restriction on the use of the Hosted Services set out in the Service Order or agreed by the parties in writing.

2.       Term

2.1     The Agreement shall come into force upon the Effective Date.

2.2     The Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 5.2 or 24.

2.3     Unless the parties expressly agree otherwise in writing, each Service Order shall create a distinct contract between the parties.

3.       Set Up Services

3.1     If the Service Order provides that the Customer is entitled to Set Up Services, MCA shall provide the Set Up Services to the Customer in accordance with the Service Order.

3.2     MCA shall use reasonable endeavours to ensure that the Set Up Services are provided upon or promptly following the Effective Date.

3.3     The Customer acknowledges that a delay in the Customer performing its obligations in the Agreement may result in a delay in the performance of the Set Up Services; and, subject to Clause 22.1, MCA will not be liable to the Customer in respect of any failure to meet any agreed Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under these Terms and Conditions.

3.4     Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by MCA shall be the exclusive property of MCA.

4.       Hosted Services

4.1     MCA shall create an Account for the Customer and shall provide to the Customer login details for that Account promptly following the Effective Date and the completion of any Set Up Services.

4.2     MCA hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a web browser for the business purposes of the Customer during the Term.

4.3     The licence granted by MCA to the Customer under Clause 4.2 is subject to the following limitations:

(a)      the administrator Accounts for the Hosted Services may only be used by the officers and employees of the Customer; and

(b)      the Customer must not exceed the express licensing limitations set out in the Service Order, including any limitations on the number of locations in respect of which the Hosted Services may be used.

4.4     Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licence granted by MCA to the Customer under Clause 4.2 is subject to the following prohibitions:

(a)      the Customer must not permit any unauthorised person to access or use the Hosted Services by means of an administrator Account;

(b)      the Customer must not use the Hosted Services to provide services to third parties;

(c)      the Customer must not republish or redistribute any content or material from the Hosted Services;

(d)      the Customer must not use the Hosted Services in any way prohibited by the Documentation; and

(e)      the Customer must not make any alteration to the Platform, except as permitted by the Documentation.

4.5     The Customer shall use reasonable endeavours, including reasonable security measures relating to administrator Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an administrator Account.

4.6     MCA shall use reasonable endeavours to maintain the availability of the Hosted Services during the term at the gateway between the hosting environment of the Platform and the public internet. The Customer acknowledges that the Hosted Services will from time to time be unavailable, including as a result of scheduled or emergency maintenance. MCA shall use reasonable endeavours to ensure that scheduled maintenance will take place outside Business Hours, but does not guarantee this.

4.7     The Customer must comply with the fair use policy set out in Schedule 1, and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an administrator Account comply with that policy.

4.8     The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.

4.9     The Customer must not use the Hosted Services:

(a)      in any way that is unlawful, illegal, fraudulent or harmful; or

(b)      in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

4.10    The Customer must not make any use of the Hosted Services that exceeds any Usage Restriction; and the Customer acknowledges that MCA may use technical measures to enforce the Usage Restrictions. If:

(a)      the Customer exceeds a Usage Restriction; and

(b)      the Usage Restrictions are not enforced by means of any technical measures,

          then MCA may charge the Customer in respect of the excess usage at its applicable standard rates from time to time.

4.11    The Customer must not access or attempt to access any feature or function of the Platform or the Hosted Services, unless the Customer has purchased access to that feature or function.

4.12    From time to time during the Term, MCA will apply Updates and Upgrades to the Platform, which may alter the Hosted Services. Whilst MCA may give to the Customer written notice of an Update or Upgrade, the Customer has no right to access MCA's roadmap for the development of the Platform and Hosted Services, or to object to the application of any Update or Upgrade. The Customer acknowledges that Updates and Upgrades may change the functionality of the Platform and Hosted Services.

4.13    For the avoidance of doubt

(a)      the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term; and

(b)      the Customer shall not be entitled to administrative or any other access to the Platform server, irrespective of whether the Platform is made available on a shared or dedicated basis.

5.       Free trial

5.1     If the Service Order specifies that a period following the Effective Date shall be a free trial, then this Clause 5 shall apply.

5.2     If the Customer is a competitor of MCA or belongs to any of the prohibited customer groups specified on the MCA website on the Effective Date, then the Customer shall not be entitled to a free trial. Any breach of this Clause 5.2 shall be deeded to be a material breach of the Agreement.

5.3     If this Clause 5 applies, then during the period of the free trial the Agreement shall be varied as follows:

(a)      no Charges will be payable in respect of the provision of Hosted Services during the free trial period or in respect of a free version of the Hosted Services;

(b)      MCA shall have no obligation to provide any Set Up Services, Support Services, Training Services, back-up services or other services to the Customer during the free trial period or in respect of a free version of the Hosted Services;

(c)      the Customer may terminate the Agreement at any time before the end of the free trial period by giving written notice of termination to MCA;

(d)      subject to Clause 22.1, MCA shall have no liability to the Customer in respect of any loss or damage the Customer may suffer during a free trial; and

(e)      Clauses 19.1 and 19.2 shall not apply during the free trial period or in respect of a free version of the Hosted Services, and such Hosted Services are provided without warranty, subject only to Clause 22.1.

6.       Customisations

6.1     MCA and the Customer may agree that MCA shall design, develop and implement a Customisation or Customisations in accordance with a specification and project plan agreed in the Service Order or otherwise in writing by the parties.

6.2     All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of MCA (unless the parties agree otherwise in writing).

6.3     From the time and date when a Customisation is first delivered or made available by MCA to the Customer, the Customisation shall form part of the Platform, and accordingly from that time and date the Customer's rights to use the Customisation shall be governed by Clause 4.

6.4     The Customer acknowledges that MCA may make any Customisation available to any of its other customers or any other third party.

6.5     For the avoidance of doubt, the Customer shall have no right to Support Services or Training Services in relation to a Customisation unless the parties have expressly agreed so in writing.

7.       Acceptance of Customisations

7.1     If and only if the parties have agreed in writing that a Customisation shall be subject to Acceptance Tests, then this Clause 7 shall apply and, during each Acceptance Period, the Customer shall carry out the Acceptance Tests.

7.2     Before the end of each Acceptance Period, the Customer shall give to MCA a written notice specifying whether the Customisation has passed or failed the Acceptance Tests.

7.3     If the Customer fails to give to MCA a written notice in accordance with Clause 7.2, then the Customisation shall be deemed to have passed the Acceptance Tests.

7.4     If the Customer notifies MCA that the Customisation has failed the Acceptance Tests, then the Customer must provide to MCA, at the same time as the giving of the notice, written details of the results of the Acceptance Tests including full details of the identified failure.

7.5     If the Customer notifies MCA that the Customisation has failed the Acceptance Tests:

(a)      if MCA agrees with the Customer, then MCA must correct the issue and make available the corrected Customisation to the Customer within a reasonable period, for a further round of Acceptance Tests; or

(b)      otherwise, the parties must meet as soon as practicable and use their best endeavours to agree whether the Customisation has not passed the Acceptance Tests, and they must record any agreement reached in writing.

7.6     If the Customer notifies MCA that the Customisation has passed, or the Customisation is deemed to have passed, the Acceptance Tests under this Clause 7, then subject to Clause 22.1 the Customer will have no right to make any claim under or otherwise rely upon any warranty given by MCA to the Customer in the Agreement in relation to the specification and performance of the Customisation.

8.       Support Services, Training Services and Consultancy Services

8.1     To the extent that the parties have expressly agreed so in writing, but not otherwise, MCA shall provide to the Customer:

(a)      Support Services;

(b)      Training Services; and/or

(c)      Consultancy Services.

8.2     MCA shall provide any Support Services, Training Services and/or Consultancy Services with reasonable skill and care.

8.3     MCA shall provide any Support Services in accordance with the service levels set out in Schedule 2.

8.4     MCA shall provide any Consultancy Services in accordance with the provisions of Schedule 3.

9.       Customer obligations

9.1     Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to MCA, or procure for MCA, such:

(a)      co-operation, support and advice;

(b)      information and documentation; and

(c)      governmental, legal and regulatory licences, consents and permits,

          as are reasonably necessary to enable MCA to perform its obligations under the Agreement.

9.2     The Customer must provide to MCA, or procure for MCA, such access to the Customer's computer hardware, software, networks and systems as may be reasonably required by MCA to enable MCA to perform its obligations under the Agreement.

10.     Customer Data

10.1    The Customer hereby grants to MCA a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of MCA's obligations and the exercise of MCA's rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of MCA's obligations and the exercise of MCA's rights under the Agreement.

10.2    The Customer further grants to MCA a non-exclusive licence to use the Customer Data to monitor and create derivative data concerning the Customer's use of the Platform and Hosted Services, providing that such derivative data will not include Customer Personal Data. Such monitoring and data creation may be carried out for the purposes of developing, marketing or enhancing MCA's services, to ensure that the Customer has not breached the Terms and Conditions, or for any other reasonable business purpose of MCA. The Customer agrees that all Intellectual Property Rights in such derivative data will belong to MCA, and acknowledges that MCA may use such data for its own business purposes.

10.3    The Customer warrants to MCA that the Customer Data will not:

(a)      breach the provisions of any law, statute or regulation;

(b)      infringe the Intellectual Property Rights or other legal rights of any person; or

(c)      give rise to any cause of action against MCA,

          in each case in any jurisdiction and under any applicable law.

10.4    Unless MCA agrees otherwise in writing, MCA will not provide a back-up service to the Customer, and the Customer will be responsible for ensuring that the Customer Data in the Hosted Services is backed up.

10.5    If MCA has agreed in writing to provide a back-up service to the Customer, then MCA shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable MCA to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days. Within the period of 1 Business Day following receipt of a written request from the Customer, MCA shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by MCA in accordance with Clause 10.5. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

10.6    Customer Data stored on the Platform shall be treated as follows if the Agreement is terminated or any amount owed by the Customer is not paid to MCA by the due date:

(a)      for a grace period of at least 5 Business Days, such Customer Data will remain stored on the Platform and accessible to the Customer;

(b)      for a further inactive period of at least 5 Business Days, such Customer Data will continue to be stored on the Platform, although it will not be accessible to the Customer and will only become accessible if the Customer pays the relevant Charges; and

(c)      such Customer Data may be deleted by MCA at any time following the end of the period referred to in Clause 10.6(b).

11.     No assignment of Intellectual Property Rights

11.1    Nothing in the Agreement shall operate to assign or transfer any Intellectual Property Rights from MCA to the Customer, or from the Customer to MCA.

12.     Charges

12.1    The Customer shall pay the Charges to MCA in accordance with these Terms and Conditions.

12.2    All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to MCA.

12.3    MCA may elect to vary any element of the Charges by giving to the Customer not less than 35 days' written notice of the variation, expiring at the end of any Agreement Period (in which case, if the Customer does not agree to the variation, the Customer may terminated the Agreement in accordance with Clause 24.1).

13.     Expenses

13.1    The Customer shall reimburse MCA in respect of any Expenses, providing that MCA must obtain the prior written authorisation of the Customer before incurring any Expenses exceeding such limitations as may be agreed in writing by the parties from time to time.

14.     Payments

14.1    The Customer must pay the Charges to MCA as follows:

(a)      Charges in respect of the Hosted Services must be paid in advance of the Agreement Period to which they relate; and

(b)      other Charges must be paid in advance of the provision of the relevant Services, unless MCA has agreed to some other payment date(s) in writing.

14.2    The Customer must pay the Charges by such methods and using such payment details as are notified by MCA to the Customer from time to time.

15.     Non-payment

15.1    If the Customer does not pay any amount properly due to MCA under these Terms and Conditions, MCA may:

(a)      charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or

(b)      claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

15.2    Notwithstanding any other provision of the Agreement, MCA may suspend the provision of any or all of the Services if any amount due to be paid by the Customer to MCA under the Agreement is overdue.

16.     Confidentiality obligations

16.1    MCA must:

(a)      keep the Customer Confidential Information strictly confidential;

(b)      not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions;

(c)      use the same degree of care to protect the confidentiality of the Customer Confidential Information as MCA uses to protect MCA's own confidential information of a similar nature, being at least a reasonable degree of care; and

(d)      act in good faith at all times in relation to the Customer Confidential Information.

16.2    The Customer must:

(a)      keep MCA Confidential Information strictly confidential;

(b)      not disclose MCA Confidential Information to any person without MCA's prior written consent, and then only under conditions of confidentiality approved in writing by MCA;

(c)      use the same degree of care to protect the confidentiality of MCA Confidential Information as the Customer uses to protect the Customer's own confidential information of a similar nature, being at least a reasonable degree of care; and

(d)      act in good faith at all times in relation to MCA Confidential Information.

16.3    Notwithstanding Clauses 16.1 and 16.2, a party (the "relevant party") may disclose the other party's Confidential Information to the relevant party's officers, employees, professional advisers, insurers, agents and subcontractors who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.

16.4    This Clause 16 imposes no obligations upon the relevant party with respect to Confidential Information of the other party that:

(a)      is known to the relevant party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;

(b)      is or becomes publicly known through no act or default of the relevant party; or

(c)      is obtained by the relevant party from a third party in circumstances where the relevant party has no reason to believe that there has been a breach of an obligation of confidentiality.

16.5    The restrictions in this Clause 16 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of a party on any recognised stock exchange.

16.6    The provisions of this Clause 16 shall continue in force indefinitely following the termination of the Agreement.

17.     Publicity

17.1    The Customer acknowledges that MCA may make public disclosures relating to the Agreement or the subject matter of the Agreement (including disclosures in press releases, public announcements and marketing materials), subject to MCA's obligations under Clauses 16 and 18.

18.     Data protection

18.1    The Customer warrants to MCA that it has the legal right to disclose all Personal Data that it does in fact disclose to MCA under or in connection with these Terms and Conditions, and that the processing of that Personal Data by MCA in accordance with these Terms and Conditions will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998).

18.2    MCA warrants to the Customer that:

(a)      it will act only on instructions from the Customer in relation to the processing of Customer Personal Data;

(b)      it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Customer Personal Data and against loss or corruption of Customer Personal Data;

(c)      it will only process the Customer Personal Data for the purposes of performing its obligations and exercising its rights under the Agreement;

(d)      it will process the Customer Personal Data in compliance with all applicable laws; and

(e)      it will not transfer or permit the transfer of Customer Personal Data to any place outside the EEA without the prior written consent of the Customer.

19.     Warranties

19.1    MCA warrants to the Customer that the Hosted Services, when used by the Customer in accordance with these Terms and Conditions, will not infringe the Intellectual Property Rights of any person under English law.

19.2    If MCA reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with these Terms and Conditions infringes any person's Intellectual Property Rights, MCA may at its own cost and expense:

(a)      modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or

(b)      procure for the Customer the right to use the Hosted Services in accordance with these Terms and Conditions.

19.3    Each party warrants to the other party that it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement.

19.4    All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

20.     Acknowledgements and warranty limitations

20.1    The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and, subject to the other provisions of these Terms and Conditions, MCA gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.

20.2    The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and, subject to the other provisions of these Terms and Conditions, MCA gives no warranty or representation that the Hosted Services will be entirely secure.

20.3    The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible by MCA in writing; and MCA does not warrant or represent that the Hosted Services will be compatible with any other software or systems.

20.4    The Customer acknowledges that MCA will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, MCA does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.

21.     Indemnities

21.1    MCA shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by MCA of Clause 19.2 (an "MCA Indemnity Event").

21.2    The Customer must:

(a)      upon becoming aware of an actual or potential MCA Indemnity Event, notify MCA;

(b)      provide to MCA all such assistance as may be reasonably requested by MCA in relation to the MCA Indemnity Event;

(c)      allow MCA the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the MCA Indemnity Event; and

(d)      not admit liability to any third party in connection with the MCA Indemnity Event or settle any disputes or proceedings involving a third party and relating to the MCA Indemnity Event without the prior written consent of MCA,

          and MCA's obligation to indemnify the Customer under Clause 21.1 shall not apply unless the Customer complies with the requirements of this Clause 21.2.

21.3    The Customer shall indemnify and shall keep indemnified MCA against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by MCA and arising directly or indirectly as a result of any breach by the Customer of these Terms and Conditions.

21.4    The indemnity protection set out in this Clause 21 shall not be subject to the limitations and exclusions of liability set out in the Agreement, except that Clause 22.11 shall limit the liability of MCA under this Clause 21.

22.     Limitations and exclusions of liability

22.1    Nothing in these Terms and Conditions will:

(a)      limit or exclude any liability for death or personal injury resulting from negligence;

(b)      limit or exclude any liability for fraud or fraudulent misrepresentation;

(c)      limit any liabilities in any way that is not permitted under applicable law; or

(d)      exclude any liabilities that may not be excluded under applicable law.

22.2    The limitations and exclusions of liability set out in this Clause 22 and elsewhere in these Terms and Conditions:

(a)      are subject to Clause 22.1; and

(b)      govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.

22.3    MCA shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.

22.4    MCA shall not be liable to the Customer in respect of any loss of profits or anticipated savings.

22.5    MCA shall not be liable to the Customer in respect of any loss of revenue or income.

22.6    MCA shall not be liable to the Customer in respect of any loss of use or production.

22.7    MCA shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.

22.8    MCA shall not be liable to the Customer in respect of any loss or corruption of any data, database or software; providing that this Clause 22.8 shall not protect MCA unless MCA has fully complied with its obligations under Clauses 10.5.

22.9    MCA shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.

22.10  The liability of MCA to the Customer under the Agreement in respect of any event or series of related events shall not exceed the greater of:

(a)      GBP 10,000; and

(b)      the total amount paid and payable by the Customer to MCA under the Agreement in the 12 month period preceding the commencement of the event or events.

22.11  The aggregate liability of MCA to the Customer under the Agreement shall not exceed the greater of:

(a)      GBP 100,000; and

(b)      the total amount paid and payable by the Customer to MCA under the Agreement.

22.12 MCA shall have no liability to the Customer in respect of Services that are provided to the Customer under this Agreement free-of-charge.

23.     Force Majeure Event

23.1    If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

24.     Termination

24.1    Either party may terminate the Agreement by giving to the other party not less than 30 days' written notice of termination, expiring at the end of an Agreement Period.

24.2    Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a)      the other party commits any material breach of the Agreement, and: (i) the breach is not remediable; or (ii) the breach is remediable, but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or

(b)      the other party persistently breaches the Agreement (irrespective of whether such breaches collectively constitute a material breach).

24.3    Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:

(a)      the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;

(b)      an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;

(c)      an order is made for the winding up of the other party, or the other party passes a resolution for its winding up; or

(d)      if that other party is an individual:

(i)       that other party dies;

(ii)      as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or

(iii)     that other party is the subject of a bankruptcy petition or order.

24.4    MCA may terminate the Agreement immediately by giving written notice to the Customer if any amount due to be paid by the Customer to MCA under the Agreement is unpaid by the due date and remains unpaid at the time that that written notice of termination is given.

25.     Effects of termination

25.1    Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.12, 13.2, 13.3, 14.2, 15, 16, 17, 21, 22, 25, 26, 29, 30, 31, 32, 33, 34, 35 and 36.

25.2    The termination of the Agreement shall not affect the accrued rights of either party.

25.3    Within 14 days following the termination of the Agreement for any reason:

(a)      the Customer must pay to MCA any Charges in respect of Services provided to the Customer before the termination of the Agreement; and

(b)      MCA must refund to the Customer any Charges paid by the Customer to MCA in respect of Services that were to be provided to the Customer after the termination of the Agreement,

          without prejudice to the parties' other legal rights.

26.     Non-solicitation of personnel

26.1    The Customer must not, without the prior written consent of MCA, either during the Term or within the period of 6 months following the end of the Term, engage, employ or solicit for engagement or employment any employee or subcontractor of MCA who has been involved in any way in the negotiation or performance of the Agreement.

27.     Notices

27.1    Any notice given under these Terms and Conditions must be in writing, whether or not described as "written notice" in these Terms and Conditions.

27.2    Any notice given by a party to the other party under these Terms and Conditions must be:

(c)      sent by recorded signed-for post; or

(b)      sent by email,

          using the relevant contact details set out in the Service Order.

27.3    The addressee and contact details set out in the Service Order may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 27.

27.4    A party receiving from the other party a notice by email must acknowledge receipt by email promptly, and in any event within 2 Business Days following receipt of the notice.

27.5    A notice will be deemed to have been received at the relevant time set out below or, where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below:

(a)      in the case of notices sent by recorded signed-for post, 48 hours after posting; and

(b)      in the case of notices sent by email, at the time of the sending of an acknowledgement of receipt by the receiving party.

28.     Subcontracting

28.1    MCA may subcontract any of its obligations under the Agreement.

28.2    MCA shall remain responsible to the Customer for the performance of any subcontracted obligations.

29.     Assignment

29.1    MCA must not assign, transfer or otherwise deal with MCA's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, providing that MCA may assign the entirety of its rights and obligations under these Terms and Conditions to any Affiliate of MCA or to any successor to all or a substantial part of the business of MCA from time to time.

29.2    The Customer must not assign, transfer or otherwise deal with the Customer's contractual rights and/or obligations under these Terms and Conditions without the prior written consent of MCA.

30.     No waivers

30.1    No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.

30.2    No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.

31.     Severability

31.1    If a provision of these Terms and Conditions is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.

31.2    If any unlawful and/or unenforceable provision of these Terms and Conditions would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

32.     Third party rights

32.1    The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

32.2    The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.

33.     Variation

33.1    The Agreement may not be varied except:

(a)      by MCA giving to the Customer at least 35 days' written notice of the variation, such notice to expire at the end of the then-current Agreement Period (in which case, if the Customer does not agree to the variation, the Customer may terminated the Agreement in accordance with Clause 24.1); or

(b)      by means of a written document signed by or on behalf of each party.

34.     Entire agreement

34.1    The main body of these Terms and Conditions, the Schedules and the Service Order shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.

34.2    Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

34.3    The Customer acknowledges that the use of MCA's supplier marketplace website services will be subject to separate terms and conditions.

34.4    The provisions of this Clause 34 are subject to Clause 22.1.

35.     Law and jurisdiction

35.1    These Terms and Conditions shall be governed by and construed in accordance with English law.

35.2    Any disputes relating to the Agreement shall be subject to the exclusive jurisdiction of the courts of England.

36.     Interpretation

36.1    In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:

(a)      that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

(b)      any subordinate legislation made under that statute or statutory provision.

36.2    The Clause headings do not affect the interpretation of these Terms and Conditions.

36.3    In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

 
Schedule 1 (Fair Use Policy)

1.       Introduction

1.1     This fair use policy (the "Policy") sets out the rules governing:

(a)      the use of the website at apps.mycareadmin.com, any successor website, and the services available on that website or any successor website (the "Services"); and

(b)      the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").

1.2     References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to MyCareAdmin Limited (and "we" and "our" should be construed accordingly).

1.3     By using the Services, you agree to the rules set out in this Policy.

2.       General usage rules

2.1     You must not use the Services except for the purpose of operating, administering, marketing and promoting any business outside the business category or categories specified in the Service Order.

2.2     You must not use the Services in any way that causes, or may cause, damage to any services we provide to any third party, or impairment of the availability or accessibility of those services.

2.3     You must not use the Services:

(a)      in any way that is unlawful, illegal, fraudulent or harmful; or

(b)      in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.

2.4     You must ensure that your use of Services resources does not exceed normal levels, and you must notify us in writing if you expect that your use of Services resources may exceed normal levels. You acknowledge that if your use of Services resources exceeds normal levels and impacts or risks impacting our other customers, we may apply technical measures to limit your use of such resources or charge additional amounts in respect of the Services. For these purposes, "Services resources" includes processing, storage and bandwidth resources, and excess utilisation may for example arise out of unusually large data imports or unusually high website traffic. For the purposes of this Paragraph 2.4, we will acting reasonably determine what constitutes "normal levels" of usage.

2.5     You must not without our written consent use the Services in combination with any third party software or services.

2.6     You must ensure that all Content complies with the provisions of this Policy.

3.       Unlawful Content

3.1     Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

3.2     Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:

(a)      be libellous or maliciously false;

(b)      be obscene or indecent;

(c)      infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;

(d)      infringe any right of confidence, right of privacy or right under data protection legislation;

(e)      constitute negligent advice or contain any negligent statement;

(f)      constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(g)      be in contempt of any court, or in breach of any court order;

(h)      constitute a breach of racial or religious hatred or discrimination legislation;

(i)       be blasphemous;

(j)      constitute a breach of official secrets legislation; or

(k)      constitute a breach of any contractual obligation owed to any person.

3.3     You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

4.       Graphic material

4.1     Content must be appropriate for all persons who have access to or are likely to access the Content in question, and in particular for children over 12 years of age.

4.2     Content must not depict violence in an explicit, graphic or gratuitous manner.

4.3     Content must not be pornographic or sexually explicit.

5.       Marketing and spam

5.1     You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any third party product, service or commercial offering.

5.2     Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.

5.3     You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.

5.4     You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.

6.       Monitoring

6.1     You acknowledge that we may actively monitor the Content and the use of the Services.

7.       Hyperlinks

7.1     You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

8.       Harmful software

8.1     The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.

8.2     The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

 

Schedule 2 (Support SLA)

1.       Introduction

1.1     This Schedule 2 sets out the service levels applicable to the Support Services.

2.       Helpdesk

2.1     MCA shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 2.

2.2     The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.

2.3     MCA shall ensure that the helpdesk is accessible by telephone or email.

2.4     MCA shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.

2.5     The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk.

3.       Response and resolution

3.1     Issues raised through the Support Services shall be categorised as follows:

(a)      critical: the Hosted Services are inoperable or a core function of the Hosted Services is unavailable;

(b)      medium: a core function of the Hosted Services is impaired or a non-core function of the Hosted Services is significantly impaired; and

(c)      low: any impairment of the Hosted Services not falling into the above categories, including any cosmetic issue affecting the Hosted Services.

3.2     MCA shall determine, acting reasonably, into which severity category an issue falls.

3.3     MCA shall use all reasonable endeavours to respond to requests for Support Services promptly.

3.4     MCA shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.

4.       Provision of Support Services

4.1     The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.

5.       Limitations on Support Services

5.1     If the total hours spent by the personnel of MCA performing the Support Services during any calendar month exceed 2 then:

(a)      MCA will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and

(b)      MCA may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.

5.2     MCA shall have no obligation to provide Support Services in respect of any issue caused by:

(a)      the improper use of the Hosted Services by the Customer; or

(b)      any alteration to the Hosted Services made without the prior consent of MCA.

 
Schedule 3 (Consultancy Services)

1.    Definitions and interpretation

1.1    In this Schedule:

    "Consultancy Charges" means all amounts payable by the Customer to MCA under this Schedule, as specified in the applicable Statement of Work;

    "Consultancy Deliverables" means any written reports, analyses, advice and/or other works to be supplied by MCA to the Customer under this Schedule, as specified in the applicable Statement of Work;

"Consultancy Services" means the consultancy services provided or to be provided by MCA to the Customer under this Schedule, as specified in the applicable Statement of Work; and

    "Statement of Work" means a document agreed in writing between the parties specifying the Consultancy Services, the Consultancy Charges and the Consultancy Deliverables (if any).

1.2    References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

2.    Consultancy Services and Consultancy Deliverables

2.1    MCA will supply the Consultancy Services to the Customer during the Term.

2.2    MCA will deliver the Consultancy Deliverables to the Customer in accordance with the delivery schedule set out in the applicable Statement of Work (if any); providing that:

(a)    that delivery schedule shall not be of the essence of the Agreement; and

(b)    the Customer acknowledges that delays in the fulfilment of the Customer's obligations under the Agreement may lead to delays in the delivery of the Consultancy Deliverables.

2.3    MCA may sub-contract the provision of the Consultancy Services; providing that if MCA does sub-contract the provision of the Consultancy Services, MCA will remain liable to the Customer for the performance of the sub-contracted obligations.

2.4    The Customer will make available to MCA office space, IT and telecommunications equipment, internet connectivity and other standard office facilities to enable the personnel of MCA to work at the premises of the Customer during the Term insofar as reasonably necessary for the provision of the Consultancy Services.

2.5    The Customer will:

(a)    be responsible for ensuring the health and safety of MCA's personnel whilst they are at the premises of the Customer;

(b)    maintain its premises in good order for the supply of Services, and in accordance with all applicable laws;

(c)    inform MCA of all health and safety rules and regulations and any reasonable security requirements that apply at its premises; and

(d)    maintain reasonable insurance cover for MCA's personnel whilst they are working at the premises (including reasonable public liability insurance).

3.    Intellectual Property Rights

3.1    Upon the delivery of any completed Consultancy Deliverables to the Customer:

(a)    if the Consultancy Deliverables form part of, or are integrated with, the Platform or Hosted Services, then the Consultancy Deliverable shall be licensed or made available by MCA to the Customer as part of the Hosted Services in accordance with the provisions of the main body of these terms and conditions; and

(b)    otherwise, MCA shall (and hereby does) grant to the Customer a worldwide, non-exclusive licence for the full term of copyright to copy, adapt, distribute, publish and otherwise use the Consultancy Deliverables,

subject in each case to any agreement to the contrary set out in the relevant Statement of Work.

4.    Term of Statement of Work

4.1    A Statement of Work applying this Schedule will come into force on the date of execution of the Statement of Work, and will continue in force until cancelled in accordance with Paragraph 4.2 or 4.3.

4.2    A Statement of Work applying this Schedule will be automatically cancelled:

(a)    on the date of effective termination of the Agreement; or 

(b)    upon the later of: (i) the completion of all the Consultancy Services under the Statement of Work; and (ii) the payment in cleared funds of all amounts due under the Statement of Work.

4.3    Unless the Statement of Work provides otherwise, either party may cancel a Statement of Work applying this Schedule by giving to the other party at least 30 days' written notice of cancellation.

5.    Consultancy Charges

5.1    The Consultancy Charges, and dates upon or after which MCA may issue invoices for the Consultancy Charges, shall be as set out in the Statement of Work.