TERMS AND CONDITIONS FOR THE SUPPLY OF WECUDOS

TERMS AND CONDITIONS FOR THE SUPPLY OF WECUDOS

Wecudos is a trading name of Wecudos Ltd and Wecudos Inc (we). We are a company registered in England & Wales under company number 03226910 . Our registered office is 91 Wimpole Street W1G 0EF

This document, together with the Data Processing Agreement and any other documents referred to tell you the terms and conditions on which we supply “Wecudos”.

Where there are any contradictions between these Terms and Conditions and the Data Processing Agreement then the Data Processing Agreement will take precedence.

Please read these Terms and Conditions carefully, you should understand that by using Wecudos you agree to be bound by these terms and conditions.

Interpretation

Definitions. In these Conditions, the following definitions apply:

  • Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
  • Charges means the charges payable by the Customer for the supply of Wecudos – see “Charges and Payment” below;
  • Commencement Date is when Wecudos accepts an Order;
  • Conditions means these terms and conditions as amended from time to time in accordance with clause 11.8;
  • Contract means the contract between Wecudos and the Customer for the supply of Wecudos in accordance with these Conditions;
  • Customer means the person or organisation who purchases Wecudos;
  • Wecudos means the the digital communication service and patient management software provided to customers. A full description of the scope and features of Florence is provided in Schedule 2.
  • Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
  • Order means the Customer’s offer to purchase Wecudos in accordance these Conditions; and
  • Protocols can be aligned to health conditions such as COPD, asthma and diabetes. Protocols are created by clinical administrators and approved for use under local governance arrangements, but certain parameters can be set at an individual patient level by clinician’s so they can be tailored closely to an individual’s profile.

Construction

In these Conditions, the following rules apply:

  • A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  • A reference to a party includes its personal representatives, successors or permitted assigns;
  • A reference to a statute or statutory provision includes subsequent amendments and re-enactments, and any subordinate legislation made under it;
  • Any phrase following the terms including, include, in particular or any similar expression, is illustrative only;
  • A reference to writing or written includes e-mails.

Basis of Contract

  • The Order is deemed to be accepted when Wecudos accepts the Order at which point and on which date the Contract shall come into existence.
  • The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation which is not set out in the Contract.
  • These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
  • Any quotation given by Wecudos shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.

Supply of Wecudos and other services

  • Wecudos shall use all reasonable endeavours to provide agreed services and to meet any performance dates specified in the Order, but any such dates shall be estimates only.
  • Wecudos shall have the right to make any changes which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of Wecudos, and Wecudos shall notify the Customer in any such event.
  • Wecudos warrants to the Customer that it will be provided using reasonable care and skill.
  • User-definable content (including Protocols) that is made available within Wecudos is provided ‘as is’ and without any warranty that such content is accurate, complete or clinically appropriate for any patient or condition.

Customer’s Obligations

The Customer Shall

  • Ensure that the terms of the Order are complete and accurate;
  • Provide Wecudos with such information and materials as Wecudos may reasonably require in order to supply Wecudos, and ensure that such information is accurate in all material respects;
  • Maintain a back up service to supply appropriate alternative services to its own clients in the event that we are unable to supply Wecudos for any reason whatsoever;
  • Not use Wecudos for any improper, immoral, fraudulent or unlawful purposes of for the sending of any communication or storing of any information which could be deemed offensive, abusive, indecent, obscene or menacing nature;
  • Keep all usernames (including email addresses used to login to the system) and passwords safe and notify us immediately if it believes that any have been lost, stolen or compromised;
  • Not use Wecudos for the purpose of spamming in whole or in part;
  • Not act in any way, whether knowingly or otherwise, such that the operation of Wecudos will be jeopardised or impaired;
  • Comply with any reasonable instructions issued by Wecudos which concern the Customer’s use of Wecudos and co-operate with us in our reasonable security and other checks;
  • Not use Wecudos in any way which breaches the Intellectual Property Rights of any third party;
  • Allow Wecudos to recover from the Customer any fines or damages we have to pay which are caused by the Customer’s breach of this agreement.

If Wecudos’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default) then:

  • Wecudos shall without limiting its other rights or remedies have the right to suspend the supply of Wecudos until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Wecudos’s performance of any of its obligations;
  • Wecudos shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Wecudos’s failure or delay to perform any of its obligations; and
  • the Customer shall reimburse Wecudos on written demand for any costs or losses sustained or incurred by Wecudos arising directly or indirectly from the Customer Default.
  • The Customer acknowledges that the supply of Wecudos does not constitute the supply of a medical self test kit or medical device, Wecudos is purely a communication system between the customer and it’s patients.

Charges and Payment

  • WeCudos shall charge the Customer the following sums (specified in Schedule 1) 
  • An annual Management Fee (“Management Fee”)

Intellectual Property Rights

  •  All Intellectual Property Rights in Wecudos or arising out of or in connection with Wecudos or the supply of Wecudos are owned by Wecudos.
  • Wecudos hereby licenses all such rights to the Customer free of charge and on a non-exclusive worldwide basis only to such extent as is necessary to enable the Customer to make reasonable use of Wecudos as is envisaged by the parties.
  • If the Contract is terminated, this license will automatically terminate.
  • The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on Wecudos obtaining a written licence from the relevant licensor on such terms as will entitle Wecudos to license such rights to the Customer.

Confidentiality

  • The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature that have been disclosed to it by Wecudos or any other party involved in the supply of Wecudos and any other confidential information concerning Wecudos’s business its products or its services which the Customer may obtain.
  • The Customer shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Customer’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Customer. This obligation shall survive termination of the Contract.

Limitation of Liability:

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

Nothing in these Conditions shall limit or exclude Wecudos’s liability for:

  • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
  •  fraud or fraudulent misrepresentation; or
  •  breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
  • Wecudos shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of income or revenue, loss of business, loss of profits or contracts, loss of anticipated savings, loss of data, waste of management or office time, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, or any indirect or consequential loss arising under or in connection with the Contract; and
  • Wecudos’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Charges paid during the previous 12 months of the Contract.
  • Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
  • This section shall survive termination of the Contract.

Termination

Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

  • the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
  • 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 (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
  • 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 (where a company) 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;
  • 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 (being a company) 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;
  • the other party (being an individual) is the subject of a bankruptcy petition or order;
  •  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 its assets and such attachment or process is not discharged within 14 days;
  • 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 (being a company);
  •  a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
  • 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;
  • 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 previous 8 events;
  •  the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
  • the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

Without limiting its other rights or remedies, Wecudos may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment, and may suspend the supply of Wecudos under the Contract or any other contract between the Customer and Wecudos in any circumstances where it has a right to terminate the Contract.

Consequences of Termination

On termination of the Contract for any reason:

  •  the Customer shall immediately pay to Wecudos all of Wecudos’s outstanding unpaid invoices and interest and, in respect of the supply of Wecudos but for which no invoice has been submitted, Wecudos shall submit an invoice, which shall be payable by the Customer immediately on receipt;
  • the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;
  • all licences in favour of the Customer shall terminate; and
  • clauses which expressly or by implication have effect after termination shall continue in full force and effect.

General

Force Majeure:

For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Wecudos including but not limited to strikes, lock- outs or other industrial disputes (whether involving the workforce of Wecudos or any other party), failure of a utility service or transport 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.

Wecudos shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.

If the Force Majeure Event prevents Wecudos from supplying any of the services which comprise Wecudos for more than 4 weeks, Wecudos shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer

Assignment and subcontracting:

Other than our obligations as Data Processor (covered separately in the Data Processing Agreement) Wecudos may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent. The Customer shall not, without the prior written consent of Wecudos, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

Notices:

Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party by post, or email. In the case of Wecudos, notices may only be emailed to ENQUIRIES@WECUDOS.COM.

Any notice or other communication shall be deemed to have been duly received at 12.00pm on the second Business Day after posting, or if sent by email on the same day as transmission. This section shall not apply to the service of any proceedings or other documents in any legal action.

Waiver:

A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

Severance:

If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

No Partnership:

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

Third Parties

A person who is not a party to the Contract shall not have any rights under or in connection with it.

Variation:

Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by Wecudos.

Governing law and jurisdiction:

This Contract, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

Wecudos Service Description

Wecudos is a mobile application and digital communication service used to reinforce a mutually agreed healthcare plan between a patient and a healthcare provider; and enables patients to communicate in and record self-reported healthcare information using their own mobile phones and digital communication channels.